Fiduciary Duties on the Temporal Edges of Agency Relationships

Authors

Deborah A. DeMott, Duke Law SchoolFollow

Document Type

Chapter of Book

Publication Date

2021

Keywords

agency, formation, termination, de facto officer, fiduciary duty, competition, brokers, lawyers, irrevocable power

Abstract

The duties that principals and agents owe each other are typically coterminous with the agency relationship itself. But sometimes temporal lines of clean demarcation do less work. The Chapter identifies situations in which an agent may owe duties—including fiduciary duties—to the principal prior to the formal start of their relationship, including any enforceable contract between the parties. Likewise, not all duties that agents and principals owe each other end with the relationship. The Chapter explores the rationales for duties at the temporal peripheries for an agency relationship and the extent to which they are derived from doctrines distinct from agency law. Issues in some contexts are amenable to resolution through bright-line determinations; others require nuanced and fact-specific inquiry. These structural consequences of agency require tempering either the claims to generality or the content of some theoretical accounts of fiduciary relationships more broadly, particularly those stressing the cognitive dimensions of agents’ loyalty and demanding robust commitment from the agent.

Comments

© Cambridge University Press 2021. This version is free to view and download for private research and study only. Not for re-distribution or re-use.

Citation

Deborah A. DeMott, Fiduciary Duties on the Temporal Edges of Agency Relationships, in Fiduciary Obligations in Business 23-39 (Arthur B. Laby & Jacob Hale Russell eds., 2021)