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The Role of Fiduciary Obligation in Solving the Problems of Abusing Power in Relationships of Private Law: A Comparative Study between the Law of England and Iraq | ||
| Journal Of the College of law /Al-Nahrain University | ||
| Article 1, Volume 19, Issue 2, 2018, Pages 209-246 | ||
| Abstract | ||
| The fiduciary doctrine is one of brainchild of the Anglo-Saxon school of law, aims at protecting the beneficiary, who relies on efforts, advice or expertise of another person, in a relationship should be premised on the considerations of reliance, dependency, probity and fidelity in discharging the powers, which are vested with a person, who is called a fiduciary. The fiduciary, undoubtfully, enjoys with broad powers with a view to enable him performing his duties properly. This position creates unbalanced relationship between the aforesaid persons due to the existence of a possibility of abusing powers vested with the fiduciary, which can be envisaged where the fiduciary placing his personal interests, or the interests of another person, ahead of the beneficiary’s interest. Hence, English law, or broadly speaking the Anglo-Saxon legal system, interfere in such relationships in order to safeguard the vulnerable person in such relationships (the beneficiary) by the imposition of certain severe obligations on the fiduciary requiring him to act in good faith to achieve the best interest for the beneficiary, and to avoid any position in which he have or can have an interest conflicting with his obligation towards the beneficiary. An investigation on the position of Iraqi private law reveals the fact that the law, notwithstanding of containing provisions regulating some limited and partial aspects of fiduciary obligation, but lack a general conceptual framework governing all relationships which have fiduciary features. Therefore, solving the problems of abusing powers on the part of the fiduciary in relationships governing by private law necessitate transplanting the root of fiduciary doctrine into the Iraqi Civil Code under a general doctrine enabling the court to confront the abuse of power and any legislative lacuna in other legislation by the resort to this principle. | ||
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