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I have some difficulty in defining accurately the category of 'fiduciaries', although it can be done. How are we to define the category 'nearly a fiduciary'?

Surely this approach substitutes an impossible question to answer(who is a quasi-fiduciary?) for a merely difficult one (when should a party in breach be stripped of the gain made?) Indeed I suspect that the courts will simply deem a party to be a quasi-fiduciary when they want to reach the result that the gain must be given up.

RS

Hanoch Dagan writes:

Like Steve Hedley, I think that Esso Petroleum v. Niad should serve as an opportunity to reconsider the Blake opinions. I prefer the view of Lord Steyn that succeeded in striking a very delicate line between Lord Nicholls' opinion that is -- I agree again with Steve Hedley -- too open-ended, and the dissent's view, which I find unnecessarily rigid.

I believe that the restitutionary remedy should be very exceptional in contractual settings. (see my Restitutionary Damages for Breach of Contract: An Exercise in Private Law Theory 1 Theoretical Inquiries in Law 115 (2000)). But I think that the Blake outcome is correct. If I read Lord Steyn's opinion correctly, the gist of his argument is that although technically not a fiduciary, Blake was "in a very similar position to a fiduciary. The reason of the rule applying to fiduciaries applies to [Blake]." This analysis uses law's underlying justifications in order to both reach the just outcome (allowing the Crown's claim) and preserve the sound policies of the law (disallowing in most cases claims of restitutionary damages for the breach of contract). Put differently, Lord Steyn's opinion can be read as adapting the scope of fiduciary law to the underlying principles of this area without upsetting the sound traditional reluctance of the common law towards restitutionary damages for breach of contract.

Hanoch Dagan