Claims Against Trustees and Fiduciaries

Lionel Smith (James McGill Professor of Law and Director of the Quebec Research Centre of Private and Comparative Law, Faculty of Law, McGill University) recently published his paper entitled The Measurement of Compensation Claims Against Trustess and Fiduciaries in chapter 16 of Exploring Private Law (Elise Bant & Matthew Harding eds., Cambridge University Press, 2010). The abstract of the paper available on SSRN is below:

The goal of this paper is to clarify the principles governing the measurement of compensation claims against trustees and other fiduciaries. The author shows that not every money claim against a fiduciary is a claim for a loss suffered; some claims are claims to enforce the primary obligations of the fiduciary. These claims to enforce primary obligations rightly attract the application of principles that have no application to claims for loss suffered. Conversely, claims for loss suffered due to a breach of an obligation attract principles that are not relevant in claims to enforce primary obligations. Furthermore, claims for loss suffered may attract certain evidentiary presumptions that favour the plaintiff, but even these presumptions have a limited scope; they operate to resolve evidentiary difficulties, and they have no relevance where no such difficulty is present.