Fiduciaries - the subject that doesn’t fit in

Speaker: Professor Warren Swain, Faculty of Law, University of Auckland
Join us in person or via Zoom: https://uqz.zoom.us/j/88503771698

There’s a race of men that don't fit in,
A race that can't stay still;
So they break the hearts of kith and kin,
And they roam the world at will.
 - Robert W Service, The Spell of the Yukon, and Other Verses (1911) ‘The Men That Don’t Fit In

Fiduciary liability is the legal equivalent of Robert Service’s ‘men that don’t fit in’. Several ways of analysing fiduciary liability are perfectly possible. One of the reasons that this area of legal development has attracted so much academic attention stems from the very fact that it is apparently so difficult to pin down. This paper will focus on something different. Inspiration is found in the work of two writers who played crucial roles in shaping the modern law. The first, the well-known company lawyer, LS Sealy, published two pioneering articles on fiduciary liability early in his career. Sealy subsequently supervised a PhD by the second pioneer, Professor, later Justice, Paul Finn which would become a seminal account of fiduciary liability in the late 1970s. Sealy argued that the emergence of legal literature helped to create more ‘concrete rules’ in equity in the nineteenth century but noted that little progress was made in analysing fiduciary liability. As Finn pointed out the idea of fiduciary liability, ‘only achieved sustained currency’ in the law reports in the middle of the nineteenth century. He suggests that this was because it was a ‘term descriptive of those relationships which were formerly designated as relationships of “trust” but which could no longer be so described with accuracy given the technical meaning which came to be attached to the term “trust” itself.’

The nineteenth century saw the emergence of a body of clear legal framework emerging in most areas of private law. Fiduciary liability is apparently an exception, and the consequences of this is still felt today. This paper will explore the extent to which Sealy and Finn’s observations hold true about fiduciaries in the nineteenth century and, if they do, then speculate on why this was the case.

About the speaker

Warren Swain is a Professor of Law at the Faculty of Law at the University of Auckland. He was formerly a Professor at the TC Beirne School of Law, the University of Queensland. He was educated at Hertford College, at the University of Oxford where he was awarded a BA, MA, BCL and D.Phil. He was a College Scholar and Barings Senior Scholar and a recipient of the Gibb’s Prize proxime accessit. Subsequently, he was a stipendiary lecturer at Hertford College and a lecturer at the Universities of Birmingham and Durham in the UK. His expertise lies in the law of contract in England and Wales, New Zealand and Australia. He is widely published in the history of contract, tort and unjust enrichment.

Read Professor Swain's bibliography and publications