1978), which is titled "Abuse of confidential relationship." This is significant as [section] 481 is titled "Breach of fiduciary obligation." While this may seem misleading, Bogert begins [section] 482 with the sentences, "[t]here is no uniform practice among courts in their use of the phrases 'fiduciary relation
' and 'confidential relation,' and often the terms are used as synonyms.
He then identifies what he describes as the two core elements of fiduciary relations
found in recent fiduciary law jurisprudence: undertakings and discretion.
(161) And another court found a friendship to support the duty of good faith and the duty to act "with due regard to the interests of the other party." (162) Although most courts will concede that a friendship alone cannot trigger the responsibilities of a fiduciary relation
, some will still acknowledge that friendship "is often an important consideration and undoubtedly furnishes a vantage ground for one is not likely to expect a friend to deceive him into a bad bargain.
at 801 (describing how a fiduciary may "enter into a fiduciary relation
without regard to his own needs").
For a conventional analysis it is not necessary to find a particular status (trustee, servant) before concluding that a fiduciary relation
81 (2013); Richard Holton, Fiduciary Relations
and the Nature of Trust, 91 B.U.
the fiduciary relation
. Finally, this Part will argue that the duty of
2d at 619 ("Corporate officers, controlling the corporation through ownership of a majority of the stock, have a fiduciary relation
to minority stockholders.").
Particularly helpful to understanding the nature of the broker-customer relationship is the Restatement of Torts' explanation: "[a] fiduciary relation
exists between two persons when one of them is under a duty to act or to give advice for the benefit of another upon matters within the scope of the relation." (54) It follows that even absent a specific statutory or rule-based mandate, broker-dealers are under heightened obligations when doing more than merely executing customer orders.
subject to the strict standards of the fiduciary relation
: the fiduciary
(76) At the same time, for relationships not 'established' as fiduciary, (77) courts have endorsed a number of features which if found to exist are indicative of a fiduciary relation
. Likewise, many modern courts have regarded a fiduciary relationship as arising where there exists a 'reasonable expectation' that a person will act in the interests of another in and for the purposes of the relationship.
When there is a previous definite fiduciary relation
between the parties.
Secondly, the court indicated that the claim turned on whether the influence involved created a fiduciary relation
, thus properly equating the presumption of undue influence with conventional fiduciary accountability.
This view seems to be reflected in the second Restatement of Torts, which provides that an individual "standing in a fiduciary relation
with another is subject to liability to the other for harm resulting from a breach of duty imposed by the relation." (76)
The court in Doe also stated that "[a] fiduciary relation
exists between two persons when one of them is under a duty to act for or to give advice for the benefit of another upon matters within the scope of that relation," (16) relying on Comment a to [section] 874 of the Restatement (Second) of Torts.