{"id":34,"date":"2009-09-25T14:09:25","date_gmt":"2009-09-25T21:09:25","guid":{"rendered":"http:\/\/fiduciarydutiesblog.com\/?p=34"},"modified":"2009-09-25T14:09:25","modified_gmt":"2009-09-25T21:09:25","slug":"mary-szto-limited-liability-company-morality","status":"publish","type":"post","link":"http:\/\/fresnolawyerblog.com\/?p=34","title":{"rendered":"Mary Szto – Limited Liability Company Morality"},"content":{"rendered":"

This is part two of a discussion of an intriguing law review article on fiduciary duties as applied in the context of limited liability companies.\u00a0 The prior blog considered the theological roots cited by Ms. Szto.\u00a0 This part examines other roots for fiduciary duties.<\/p>\n

Ms. Szto starts again with a religious analysis.\u00a0 Says she, \u201cCanon lawyers provided the link between Roman legal devices and biblical views of property.\u00a0 For several centuries, the study of Roman law found a home within the church.\u00a0 Augustine taught that property must have a spiritual use.\u201d<\/p>\n

Now we are introduced to the connection between fiduciary obligations and the church \u2013 Ecclesiastical courts handled probate matters.<\/p>\n

Says the author, \u201cThe Middle Ages saw the development of the use, the forbear of trust and agency law (agency and trust law being the forbears of partnership and corporate law).\u00a0 This came about mainly through ecclesiastical courts.\u00a0 It was accomplished through continued clerical adaptation of fidei commissa<\/a> . . . and the ecclesiastical court\u2019s jurisdiction over probate law.\u00a0 Eventually, the Courts of Chancery enforced uses.\u00a0 All these lay the groundwork for high business fiduciary duties, many centuries later.\u201d<\/p>\n

In this way, fiduciary relationships evolved from rules limiting inheritances in real property.\u00a0 Ms.\u00a0 Szto explains that, \u201cUses of personalty were enforced in the 1100’s by English common law courts.\u00a0 However, the Franciscans are credited for the first wide-scale employment.\u00a0 St. Francis of Assisi founded the Franciscan Order in 1209.\u00a0 According to Maitland, although the Franciscans had taken vows of property, they employed the \u2018ad opus\u2019 to receive the benefits of property ownership, which was akin to the Roman \u2018usus.\u2019\u201d<\/p>\n

Which is to say, the clergy helped drive the \u201cuse,\u201d in which beneficial possession was separated from actual legal title.\u00a0 Even more, conveyance of fee ownership by will was limited, at least in England.\u00a0 \u201cBecause the common law prohibited the devise of freehold land, the feoffment to uses were popular during the rein of Edward III (1327-1377).\u00a0 Feoffors would convey land to feoffees, who then conveyed land to third persons – cestui que uses – named in the feoffors\u2019 wills.\u00a0 The terms use, confidence, and trust were used simultaneously.\u201d<\/p>\n

Still, a right without a remedy has little value.\u00a0 The court must step in when misconduct occurs.\u00a0\u00a0 \u201cThere is evidence that ecclesiastical courts enforced uses before the Courts of Chancery did.\u00a0 This is because ecclesiastical courts had jurisdiction over probate matters. . . . Interestingly, records of ecclesiastical enforcement of uses disappear in the last part of the 1400’s, apparently because of the jurisdiction of the Courts of Chancery over uses at that time.\u201d<\/p>\n

More next week on the limited liability companies.<\/p>\n

Mary Szto, \u201cLimited Liability Company Morality: Fiduciary Duties in Historical Context,\u201d 23 Quinnipiac Law Review 61<\/em> (2004-2005).<\/p>\n","protected":false},"excerpt":{"rendered":"

This is part two of a discussion of an intriguing law review article on fiduciary duties as applied in the context of limited liability companies.\u00a0 The prior blog considered the theological roots cited by Ms. Szto.\u00a0 This part examines other roots for fiduciary duties. Ms. Szto starts again with a religious analysis.\u00a0 Says she, \u201cCanon […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[7],"tags":[],"class_list":["post-34","post","type-post","status-publish","format-standard","hentry","category-law-reviews"],"_links":{"self":[{"href":"http:\/\/fresnolawyerblog.com\/index.php?rest_route=\/wp\/v2\/posts\/34"}],"collection":[{"href":"http:\/\/fresnolawyerblog.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/fresnolawyerblog.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/fresnolawyerblog.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"http:\/\/fresnolawyerblog.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=34"}],"version-history":[{"count":0,"href":"http:\/\/fresnolawyerblog.com\/index.php?rest_route=\/wp\/v2\/posts\/34\/revisions"}],"wp:attachment":[{"href":"http:\/\/fresnolawyerblog.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=34"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/fresnolawyerblog.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=34"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/fresnolawyerblog.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=34"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}