FIDUCIARY DUTIES AND PROPRIETARY REMEDIES: ADDRESSING THE FAILURE OF EQUITABLE FORMULAE

Abstract

AbstractThis article proposes a new framework for determining the availability of proprietary remedies for breach of the fiduciary duty of loyalty. It examines the alternative and conflicting arguments put forward in the leading cases, and suggests that they fail to justify their conclusions, either under- or over-estimating the incidence of proprietary relief for fiduciary disloyalty. These shortcomings appear to be the result of inappropriate reliance on familiar equitable formulae, in particular the routine equitable duty to account, the seemingly inescapable maxim that “equity treats as done that which ought to be done”, and the potent rules of tracing.