Daniel B. Kelly

Dan Kelly


Daniel Kelly
Professor of Law
Director of the Notre Dame Fitzgerald Institute for Real Estate
LAMB Faculty Fellow


Spotlight Research:  Fiduciary Principles in Fact-Based Fiduciary Relationships

This chapter examines how courts apply fiduciary principles when a fiduciary relationship is based on the particular facts of a case. In a fact-based fiduciary relationship, a court must analyze the facts and circumstances of a case to determine if a party is a fiduciary. To determine whether a fact-based fiduciary relationship exists, litigants and courts have invoked a wide range of criteria. In this regard, a number of questions arise. For example, what criteria do courts utilize in evaluating fact-based fiduciaries? Given that most fiduciary relationships are based on status, why are both fact-based and status-based fiduciaries recognized by law? Is the substantive law that applies to fact-based fiduciaries equivalent or analogous to the law that applies to status-based fiduciaries. This chapter begins with a discussion of the triggers for fact-based fiduciary relationships, giving emphasis on factors that courts take into account in making ad hoc fiduciary determinations as well as the relationship between fact-based and status-based fiduciary relationships. It also explains why courts may recognize fact-based fiduciaries in certain limited circumstances before analyzing the fiduciary duties within fact-based fiduciary relationships, including the duties of loyalty and care along with other legal obligations such as confidentiality, good faith, and disclosure. After exploring the issue of mandatory and default rules in fact-based fiduciary relationships, including whether parties can waive or modify fiduciary principles, the chapter concludes by addressing remedies in fact-based fiduciary relationships.

Citation: Fiduciary Principles in Fact-Based Fiduciary Relationships, in Oxford Handbook of Fiduciary Law 3-22 (Evan J. Criddle, Paul B. Miller, & Robert H. Sitkoff eds., Oxford University Press 2019).

Other Research