Fiduciary duties and voluntary undertakings

Abstract

Justice Edelman has argued, extra-judicially, that important aspects of fiduciary doctrine can only be understood by recognising fiduciary duties as express or implied duties in voluntary undertakings. This article offers reasons for rejecting that claim. It seeks to show that the relevant aspects of fiduciary doctrine can also be explained, and can be better explained, by an alternative view of fiduciary duties. Further, this alternative conceptualisation of fiduciary duties explains other aspects of fiduciary doctrine which do not sit well with Justice Edelman’s thesis. The article also identifies a number of dangers inherent in adopting Justice Edelman’s analysis of fiduciary duties.