Agent Not Liable for Breach of Fidicuary Duty Without Proof of Damages

In the recent case of Sharabianlou v. Karp, 2010 DJDAR 2039 (Feb. 8, 2010), the court considered the following facts.

“Sharabianlou [the buyer] offered to purchase a commercial building owned by Berenstein Associates.   The [buyer] engaged real estate agent Ronald Karp to represent them in the transaction.  Soon after the offer was made, however, the parties learned of environmental contamination on the property.”

“Faced with uncertainty about the scope of the contamination and the cost of its cleanup, and unable to agree on who should pay for the remediation, the parties failed to close escrow.  After further efforts to resuscitate the transaction were unsuccessful, the [buyer] sued the [seller] and the [real estate agent].”

“The second amended complaint also included claims against the [real estate agent] for breach of fiduciary duty . . . The [buyer] contends that [the real estate agent] breached his fiduciary duty by failing to disclose to their lender’s appraiser that environmental contamination had been discovered on the property.”

So far, that’s a traditional basis for a breach of fiduciary claim.  The agent is required to disclose all material facts concerning the subject of the agency.

Thus, the buyer “asserts that [the real estate eagent] knew he was relying on the appraisal to determine whether to exercise a contractual right to walk away from the contract.  [The buyer] claims that had the contamination been disclosed to the appraiser, the property could have appraised for less than $1.7 million, and he would have exercised his right under Addendum 4 to cancel the Agreement.”

That’s the background for the court’s review – did the real estate agent “fail to disclose the existence of the Piers environmental reports to US Bank’s appraiser?”  In its analysis, the court held that,

“A claim for breach of fiduciary duty by a real estate agent has three elements; a plaintiff must demonstrate the existence of a fiduciary relationship, its breach, and damages proximately caused by that breach.  The trial court found no breach of fiduciary duty because the evidence showed the [buyer] and US Bank already knew that the toxic hazard and potential remediation cost was undefined and unknown.”

This finding that will not be disturbed on appeal unless it is unsupported by evidence, and would undermine any claim for relief.

The buyer made a peculiar concession to the appellate court.  “On appeal, the [buyer] does not contest any of these findings.  Instead, [the buyer] claims that as a matter of law, ‘[the real estate agent] owed a duty to disclose the existence of environmental contamination on the property when he must have known that his failure to do so would affect his principals’ substantive rights.’”

The appellate review could have ended at this point, because there was no finding of a failure to disclose.  Instead, the court held held “appellants cannot show any prejudicial error because they failed to present evidence of damages proximately caused by [the real estate agent’s failure to disclose.”

The court explained that “there simply is no evidence that the property would have appraised for less than $1.7 million, and thus any claim that the [buyer] would have been entitled to cancel the Agreement on that basis is entirely speculative.  Without such evidence, the [buyer] cannot show that [he was] damaged by the alleged breach of fiduciary duty.”

That’s a bit of a strange turn.  The concession that there was no failure to disclose should have ended the inquiry.

Sharabianlou v. Karp, 2010 DJDAR 2039 (Feb. 8, 2010)

Judge Posner Writes on Blameworthiness in Contract Theory

Continuing his recent discussion of fault in contract law, Judge Posner explains that,

“The idea of ‘good faith’ is an example.  We generally want people to be honest and aboveboard in their dealings with others.  But there is no general duty of good faith in contract law.  If you offer a low price for some good to its owner, you are not obliged to tell him that you think the good is underpriced – that he does not realize its market value and you do.

“You are not required to be an altruist, to be candid, to be a good guy.  You are permitted to profit from asymmetry of information.  If you could not do that, the incentive to discover information about true values would be blunted.  It is an example of the traditional economic paradox that private vice can be public virtue.”

True, and eloquently stated.  The principle of capitalism is that a person should be able to profit from skill and knowledge.  Continuing his analysis, Judge Posner explains his view the duty of god faith in contract law, stating that,

“There is a legally enforceable contract duty of ‘good faith,’ but it is just a duty to avoid exploiting the temporary monopoly position that a contracting party will sometimes obtain during the course of performance.”

OK.  Good faith in contract law concerns good faith in performance, not to good faith in contract formation (although he recognizes that some standard of decency is necessary to police unreasonably sharp deals).

Thus, “More often than not the parties to a contract do not perform their contractual duties simultaneously, and so one party may unavoidably deliver himself into the power of the other party for a time during the performance of the contract.  [Take this example.]  A may agree to build a swimming pool for B, and B may agree to pay A upon completion.  Suppose that when A has finished, B refuses to pay the agreed-upon price because he knows that A is desperately short of cash and will agree to a reduction in the contract price, having no possible source of cash other than B.  A’s cash shortage, coupled with his having completed performance before B has begun and his having no alternative source of cash, gives B a monopoly position as A’s financier; monopoly is inefficient and so a modification of the contract to lower its price will not be enforced.”

Yes, but, isn’t this conduct bad faith in performance?  If so, should the law award extra-contractual damages for violation?  Judge Posner continues, citing from his opinion in Market Street Associates v. Frey, 941 F.2d 588 (7th Cir. 1991):

“In all these examples the duty of ‘good faith’ arises after the contract has been formed; that is why it is properly called the duty of good faith in performing a contract.  If I may be permitted to quote again from my opinion in the Frey case:

“Before the contract is signed, the parties confront each other with a natural wariness.  Neither expects the other to be particularly forthcoming, and therefore there is no deception when one is not.

“Afterwards the situation is different.  The parties are now in a cooperative relationship the costs of which will be considerably reduced by a measure of trust.  So each lowers his guard a bit, and now silence is more apt to be deceptive . . .

“As performance unfolds, circumstances change, often unforeseeably; die explicit terms of the contract become progressively less apt to the governance of the parties’ relationship; and the role of implied conditions and with it the scope and bite of the good-faith doctrine grows.”

We see the analysis heading toward the territory of the fiduciary, in which neither party may take action to deprive the other of the benefit of the bargain.  The question is, If the action by the contract-breaker is intentional, after the other party has become vulnerable, should the law respond more harshly?  Judge Posner says no – but on a societal level, why should this be the rule?

Richard A. Posner, “Let Us Never Blame a Contract Breaker,” in Michigan Law Review (June 2009), Vol. 107, No. 8, page 1349.

Judge Posner Considers the Distinction between Liability for Contract and Liability for Fraud

Judge Richard A. Posner of the Seventh Circuit Court of Appeals contributed his thoughts at a symposium on the rationale for liability for breach of contract.  One of his points is a sound analytic distinction between tort liability and contract liability, a concept which is sadly muddled in California cases.

Writes Judge Posner, “Here is a simplified version.  A and B make a written contract.  Later A sues B claiming that during the negotiations B deliberately misrepresented the benefits that A would derive from the contract.  But A does not sue for breach of contract.  He can’t; the parol evidence rule would bar a claim that promises made during the negotiations but not repeated in the contract should be deemed contractually binding.”

That’s clear legal thinking.  There is no claim for breach of contract because the law of evidence excludes evidence of terms that contradict the terms of the contract.

Judge Posner continues.  “So A sues B in tort, charging fraud.  The parol evidence rule is not a rule of tort law.”

Right again.  Parol evidence knocks out the contract claim, but not the tort claim.

“B has a defense [to the fraud claim]: the written contract had included a clause stating that neither party was relying on any representations not embodied in the written contract.”

According to Judge Posner, “The ‘no reliance’ clause scotches A’s fraud suit because you cannot obtain damages for fraud unless you relied on the fraudulent representations, and A has disclaimed such reliance.  So although B is assumed to have acted wrongfully, A has no remedy either in contract or in tort.”

Well, maybe not so fast.  Isn’t the whole point of the fraud claim that the wrongdoer deceived the victim?  Conceptually, I don’t see how the bad guy gets to hide behind his contract, when the injured part was induced, by false promises, to enter into the contract.  The false promises should negate the terms of the contract, at least insofar as such terms act to exculpate the bad guy.

Now, here’s an even deeper way to look at the issue, which takes us into philosophical terms.  Judge Posner posits that, “There is, however, a limited duty of good faith at the contract-formation stage as well.”

Now we’re getting to the point.  Are we focusing on a wrong arising out of the contract, or a wrong that preceded the contract?

“It is one thing to say that you can exploit your superior knowledge of the market for if you cannot, you will not be able to recoup the investment you made in obtaining that knowledge or that you are not required to spend money bailing out a contract partner who has gotten into trouble.  It is another thing to say that you can take deliberate advantage of an oversight by your contract partner concerning his rights under the contract.”

This runs straight to a utilitarian moral theory, which is not easy to square with cold-blooded contract analysis.  Yet Judge Posner continues on.  “Such taking advantage is not the exploitation of superior knowledge or the avoidance of unbargained-for expense . . . Like theft, it has no social product, and also like theft it induces costly defensive expenditures, in the form of overelaborate disclaimers or investigations into the trustworthiness of a prospective contract partner, just as the prospect of theft induces expenditures on locks.”

Richard A. Posner, “Let Us Never Blame a Contract Breaker,” in Michigan Law Review (June 2009), Vol. 107, No. 8, page 1349

Differentiating The Duties Owed by Agents

Prof. Deborah A. DeMott from Duke University School of Law has written a thoughtful article in which she differentiates among the fiduciary duties owed by agents.  Prof. Demott begins as follows:

“Legal theorists differ on how best to characterize fiduciary duty; to some, it’s best understood as a consequence of contract – as a set of default terms to which parties would agree, had they the benefit of unlimited resources.”

[On this topic, see my prior article regarding Le vs. Pham, in which I posit that the court got it wrong by creating additional duties where the contract already established the relationship between the parties.]

Prof. DeMott continues.  “It’s conventional to distinguish among an agent’s duties.  Restatement (Third) of Agency uses the terminology of duties of performance and duties of loyalty.

Hooray – someone who breaks down the different duties owed by a fiduciary.  As to agents, she says it’s a duty of loyalty and a duty of performance.

The duty of performance is seemingly self-evident.  “An agent’s duties of performance include the duty:

  • To act only as authorized by the principal;
  • To fulfill any obligations to the principal defined by contract;
  • To act with the competence, care, and diligence normally exercised by agents in similar circumstances; and
  • To use reasonable effort to provide the principal with facts material to the agent’s duties to the principal.

“An agent’s duties of performance are often defined by agreement between principal and agent.”

The obligations arising the duty of loyalty are more subtle.  “An agent’s duties of loyalty stem from the agent’s basic obligation to act loyally for the principal’s benefit in matters connected with the agency relationship.  An agent’s more specific duties of loyalty include:

  • A duty not to acquire a material benefit from a third party in connection with transactions or other actions taken on behalf of the principal or otherwise through the agent’s use of position;
  • A duty not to deal with the principal as or on behalf of an adverse party;
  • A duty not to compete with the principal or assist the principal’s competitors during the duration of the agency relationship; and
  • A duty not to use property of the principal, and not to use or communicate confidential information of the principal, for the agent’s own purposes or those of a third party.”

The author then tracks the effects of the legal analysis to the remedies available to the principal.  Explains Prof. DeMott, “The remedies available to a principal do not map neatly onto the contours of either contract law or tort law principles and remedies.

“For example, remedies that have the consequence of stripping profit or benefit from the agent do not necessarily approximate the amount of harm that a principal either has suffered or would be able to prove or the benefit that the principal expected to realize through the transaction conducted by the agent.”

From “DISLOYAL AGENTS” by Deborah A. DeMott, Professor of Law, Duke University School of Law.  Prof. Demott served as the Reporter for the Restatement (Third) of Agency.

Alabama Law Review (2007) Vol. 58:5:1049

Le vs. Pham – Careless Reasoning in Sale of a Pharmacy

The Fourth District Court of Appeal held in Le vs. Pham,  2010 DJDAR 297 (January 6, 2010) “that where the bylaws of a pharmacy corporation provide that one stockholder must give another a right of first refusal on the sale of any stock, it is a breach of fiduciary duty for the selling stockholder to attempt to sell to a third party in violation of the right of first refusal.”

The problem is that the court fails to adequately explain which fiduciary duty was breached, instead conflating breach of contract with breach of fiduciary duty.

To be sure, the Les did wrong by Pham, their fellow shareholder.  “Le and his wife owned 50 percent of the corporate shares of Newland Pharmacy, while Pham owned the other 50 percent.  Corporate bylaws obligated the Les to give Pham written notice of any intent to sell or transfer.  The bylaws also gave Pham a right of first refusal on any sale based on that notice of intent.”

The Les wanted to sell their stock and “gave written notice to Pham (by certified mail) of their intent to sell their 50 percent share to Paul and Kimngang Hoang for a total of $70,000, cash at transfer.”  The Phams replied by stating that they needed 30 days to review the proposal.

The Les did not wait but instead sold their stock, however, neither at the price nor on the terms set forth in the notice.  Instead, “the Les sold their shares [for]$24,000, considerably less than the $70,000 offered to Pham.  Nor was it a cash sale.  The Hoangs [buyers] were allowed to make installment payments on the $24,000.”

OK.  Breach of contract through and through.  Further, the sale caused problems with the Board of Pharmacy, as “Hoang [the buyer] did not file a change of ownership form with the California Board of Pharmacy, an omission which prompted a ‘cease and desist’ order from the board that closed the pharmacy down for about three months beginning in March 2007.”

Not content with this set of problems, “the seller and the buyer sued the other shareholder [Pham], contending that the transfer was valid in accordance with Newland Pharmacy’s bylaws.”

Pham prevailed on the complaint at trial.  “The court, in its statement of decision, ruled that the Les’ attempted transfer of shares to the Hoangs was null and void because it did not comply with the corporate bylaws.  It was obvious, after all, that the Les had attempted to sell the shares to the Hoangs for a better price ($24,000 as distinct from $70,000) and on better terms (installments rather than cash) than had been offered Pham in the notice of intent to sell.”

Pham, the other shareholder, countered with cross-complaint for breach of fiduciary duty, which is where it gets interesting.  According to the court, “as a matter of common law, we divine a public policy in favor of the strict enforcement of the corporate bylaws of pharmacy corporations restricting transfers of shares in such corporations. . . The statutes and regulations just mentioned reflect a public policy, ala Snyder’s Drug Stores, seeking a reasonably snug fit between the ownership of pharmacies and their control by licensed pharmacists.”

“Having ascertained a public policy in favor of control of pharmacies by licensed pharmacists, we apply California corporate common law involving protection of vulnerable stockholders from other stockholders who have the power, by the choice of to whom shares will be sold, to affect the actual conduct of the corporation.”

Why take this step?  The contract already protects the remaining shareholder.  There is no need to search for new law.

Here’s where the court takes a leap.  “The common law has involved fiduciary duties imposed on majority or controlling shareholders.  In this case, however, it is not the quantum of shares owned by the Les that made Pham as vulnerable as any minority shareholder in a close corporation, but the fact that, by circumventing the bylaws, the Les could adversely affect, as Justice Traynor put it in Ahmanson, the ‘proper conduct of the corporation’s interest.’”

OK, so which duty was violated?  The duty not to take advantage of a corporate opportunity?  The duty of loyalty? (Remember that “the primary duty of the fiduciary is to receive the res and manage it for the benefit of the cestui.  This is the fiduciary’s duty of management.”) The court does not say, instead painting broadly (and carelessly) with a generic “fiduciary duty.”

Thus, the court reasoned that, “it is clear that a fiduciary duty was violated by that attempted transfer, based on mutual vulnerability in which the stockholders found themselves.  By unilaterally [ ] selling to the Hoangs and effectively excluding Pham from the process, the Les jeopardized the ‘proper conduct’ of the business and unilaterally deprived Pham of an important right given her by the corporate bylaws:  the right to control who were her ‘partners’ in a regulated professional corporation.”

That’s sloppy legal reasoning.  Fiduciary duties are gap fillers, applied to regulate dealings between persons in a close relationship.  The sellers breached the contract, and the remedies for breach of contract were adequate to make the other shareholder whole.  The court did not need to reach for a “fiduciary duty” based on a “duty of good faith and fairness.”  This result leads only to ambiguity and imprecise analysis.

Le vs. Pham, 2010 DJDAR 297 (January 6, 2010)

2010 Consumer Electronic Show (CES)

I attended the annual Consumer Electronics Show for the 6th time in the past seven years.  Here are my observations.

Attendance was steady.  Gambling is up.  There were more people at the tables than last year. That’s two good signs for the economy.

But, the Fortune 500 stayed away, which is a bad sign for the economy.  Here are some of the prior year’s attendees who were noticeably absent:

  • Benq (made a big splash a few years back, now vanished)
  • Hewlett Packard (are you kidding me?  No presence whatsoever on the floor?  No one could drive from Palo Alto to Las Vegas with a few printers?)
  • Xerox
  • Dell (This ticks me off.  Dell has no presence on the floor, but snags 11 “innovation” awards?  Ditto for Nikon.  Not at CES, but also wins an award?  Smells like some kind of “pay for play,” and certainly cheapens the CEA Innovation Awards).
  • Philips (used to have a huge display on the floor. Here’s all I could find in 2010).

How the mighty have fallen. Sad days for Philips

Now, the good guys (i.e., Corporate America that showed up at CES and plugged away at restoring the economy):

  • Microsoft
  • Sharp
  • Samsung
  • Panasonic
  • Sony
  • Casio

The foregoing were all at 2010 CES and marketing at full speed.  Bravo.

There were no visible empty spaces on the convention floor, unlike 2009.  However, some spaces had increased in size.

Embarrassment Award:  Lost-in-space Polaroid names Lady Gaga as its “artistic director.”  Come on.  You guys couldn’t find one person with a credible background in photography?

Very Cool Product.  The Toshiba Cell LCD television has a lovely picture.  Available now in Japan, coming to the U.S. in the second half of 2010.   Learned that the extra-thin LCDs achieve their weight loss by putting all the lights at the bottom, then shooting up to fill the screen.  You certainly make some sacrifices for the Twiggy look.

3-D Television.  All the rage in 2010.  What is this?  1953 revisited?

Reel-to-Reel Tape Decks.  Ditto.  Saw several at the high end stereo show.  Give me a break.  Just because some audio geeks (oops – I meant, “audiophiles”) still listen to vinyl is no excuse to attempt to reintroduce reel-to-reel decks.

Digital Music.  The stereo world is catching on that we listen to electronic files, but they are about three years behind, as the manufacturers finally embrace  Ipod connectivity.  (Even Sony has an Ipod slot on some products.  Tall about being ubiquitous.)

Dudes, look forward.  I want wireless connectivity from my amp to my PC.  That’s the future, not an Ipod interface.

Cool computer stuff.  Big (i.e., two terrabyte) solid state storage units.  USB 3.0.

Class D amplifier.  The little amps from International Rectifier smoked some systems costing thousands of dollars more.  Quite impressive, even if I’m not a convert to Class D.

Gorgeous Home Projector.  If you have the dough, get the $15,000 projector from Meridian.  It will knock your socks off.

No Way Award.  A start-up speaker company from Novato, CA rolls out its first speakers – at $125K for a pair?  A dude from Sweden showing a $90K pair of monoblock amplifiers as his only product?  (At least Lars named the amp after himself.)

2007 – Where is the Economic Pain?

I read a recent article in the Consumer Finance Law Quarterly Report about bankruptcy filings after the 2005 reform act.  The author (Jon Ann H. Giblin) compared 2006 filings with 2007 filings (in her table).

I asked myself – Which states have more filings, on a percentage basis?  (This, of course, begs the question of why, which is another matter.)  I used the U.S. Census Bureau information and combined it with the 2007 filing data to show filings as a percentage of population.

Tennessee and Alabama top the list.  Lots of pain in Michigan, Indiana, and Ohio.  Odd to note the substantial difference between Georgia and S. Carolina. 

Update – My friend, Nashville bankruptcy attorney Kevin Key, points out that Suth Carolina does not permit wage garnishment, which helps account for the low bankruptcy filings in that state.   The discharge is not needed if state law already prevents creditors from enforcing their debts. 

  2007 Bankruptcy Filings 2007 Population Filings as a percentage of population
.Alabama 23,856 4,627,851 0.52%
.Alaska 697 683,478 0.10%
.Arizona 10,920 6,338,755 0.17%
.Arkansas 11,852 2,834,797 0.42%
.California 72,615 36,553,215 0.20%
.Colorado 15,499 4,861,515 0.32%
.Connecticut 5,890 3,502,309 0.17%
.Delaware 712 864,764 0.08%
.District of Columbia 2,002 588,292 0.34%
.Florida 41,462 18,251,243 0.23%
.Georgia 50,092 9,544,750 0.52%
.Hawaii 1,386 1,283,388 0.11%
.Idaho 3,838 1,499,402 0.26%
.Illinois 41,456 12,852,548 0.32%
.Indiana 31,122 6,345,289 0.49%
.Iowa 7,036 2,988,046 0.24%
.Kansas 8,072 2,775,997 0.29%
.Kentucky 17,157 4,241,474 0.40%
.Louisiana 14,277 4,293,204 0.33%
.Maine 2,304 1,317,207 0.17%
.Maryland 13,733 5,618,344 0.24%
.Massachusetts 13,705 6,449,755 0.21%
.Michigan 46,190 10,071,822 0.46%
.Minnesota 11,902 5,197,621 0.23%
.Mississippi 11,217 2,918,785 0.38%
.Missouri 21,257 5,878,415 0.36%
.Montana 1,879 957,861 0.20%
.Nebraska 5,364 1,774,571 0.30%
.Nevada 10,953 2,565,382 0.43%
.New Hampshire 2,983 1,315,828 0.23%
.New Jersey 19,948 8,685,920 0.23%
.New Mexico 3,403 1,969,915 0.17%
.New York 40,519 19,297,729 0.21%
.North Carolina 19,710 9,061,032 0.22%
.North Dakota 1,206 639,715 0.19%
.Ohio 50,723 11,466,917 0.44%
.Oklahoma 9,127 3,617,316 0.25%
.Oregon 9,386 3,747,455 0.25%
.Pennsylvania 29,962 12,432,792 0.24%
.Rhode Island 2,817 1,057,832 0.27%
.South Carolina 7,291 4,407,709 0.17%
.South Dakota 1,366 796,214 0.17%
.Tennessee 39,593 6,156,719 0.64%
.Texas 42,931 23,904,380 0.18%
.Utah 6,464 2,645,330 0.24%
.Vermont 895 621,254 0.14%
.Virginia 19,478 7,712,091 0.25%
.Washington 15,568 6,468,424 0.24%
.West Virginia 4,492 1,812,035 0.25%
.Wisconsin 15,851 5,601,640 0.28%
.Wyoming 795 522,830 0.15%

Professor John Langbein Discusses the Modern Trust as a Will Substitute

Legal scholar John Langbein addresses a question that has been on my mind – When did trust agreements evolve from classic fiduciary relationships into will substitutes?

The answer is – a long time ago.  Explains Prof. Langbein, “Trust law is an ancient field.  The enforcement of trusts in the English court of Chancery can be traced back to the late fourteenth century, and there is some indication that the courts of the English church may have been enforcing trusts even earlier.”

Trusts have long been used to circumvent probate administration.  Thus, “The trust originated as a device for transferring real property[.]  Trust conveyancing allowed an owner to escape the medieval rule, which lasted into the seventeenth century, that freehold land was not devisable.”

Stop right there.  Land in the feudal English system could not be conveyed by will, which restriction lasted into the 1600s.  Instead, “land that was transferred on death had to descend by intestacy rather than pass by will.”

Such transfers were subject to many restrictions.  “A widow was restricted to the one-third life estate called dower; primogeniture awarded the entire remaining estate to the eldest male heir if any; transfer taxes known as feudal incidents were exacted when an heir succeeded to an ancestor’s estate; and minors and unmarried females suffered further disadvantages in heirship.”

For this reason, attorneys several hundred years ago employed a trust to evade the limitations established by law.  Prof. Langbein notes that, “Trust conveyancing deftly evaded this medieval law of succession.  The owner of land, the person whom we now call the settlor, would transfer the land to a trustee or trustees, who were commonly relatives or gentlemen friends, subject to trust terms that functioned like a will.”

Of course, the trust only works if some court will enforce it after the settlor’s death, which was the early purview of the ecclesiastical courts.   “There is nothing novel [ ] about our modern understanding that a trust can function as a will substitute.  What is new is that the characteristic trust asset has ceased to be ancestral land and has become instead a portfolio of marketable securities.  Long into the nineteenth century, the trust was still primarily a branch of the law of conveyancing, that is, the law of real property . . . The modern trust, by contrast, is primarily a management device for assembling and administering a portfolio of financial assets . . . as the predominant form of personal wealth.”

“Why Did Trust Law Become Statute Law in the United States?” by  Prof. John H. Langbein (Yale University) Ala. Law Rev. Vol. 58:5, page 1069 (2007)

Fiduciary Duties Arising From Charitable Contributions – Section 17510.8

Relationship-based fiduciary duties (as counterposed with contract-based fiduciary duties) arise in many different situations.  I recently came across an extension of the fiduciary concept in the field of charitable solicitations.

Specifically, California Business and Professions Code section 17510.8 states, “There exists a fiduciary relationship between a charity or any person soliciting on behalf of a charity and the person from whom a charitable contribution is being solicited.”

lightning2The statute continues.  “The acceptance of charitable contributions by a charity [establishes] a duty on the part of the charity and the person soliciting on behalf of the charity to use those charitable contributions for the declared charitable purposes for which they are sought.”  The statute concludes by reciting that, “This section is declarative of existing trust law principles.”

Those few words establish an extraordinarily high obligation both on the part of the charity and on the person making a charitable solicitation.  Classic formulation of fiduciary duties expounds that the person subject to the duty has an obligation to put the beneficiary’s interest ahead of his or her own interest.  Such a duty is non-delegable.

The 1992 Law Review Commission comments offer no citations to relevant authority, nor are there any published cases applying this law.  Perhaps the statement that the statute is “declarative of existing trust law” is overbroad.

Taken literally, this statute would have the effect of making a person who solicits contributions for a charity effectively a guarantor of the money,  meaning that if the money was not used for a charitable purpose, or, if it were embezzled by someone at the charity, the solicitor would be liable to come out-of-pocket to make up the contribution.

Surely, the legislature could not have intended such a result.  But, that is what happens when people loosely use the term “fiduciary relationship.”  Not all fiduciary obligations are the same.  The obligations owed by a member of an LLC to another member, although fiduciary in nature, are not the same as, for example, the obligations owed by a professional trustee to the beneficiary of an irrevocable trust.

It is a mistake to assume – or assert – that all fiduciary obligations are identical.  The legislature does us a disservice when it uses these terms carelessly.  The statute did not need to define the relationship as being “fiduciary” in nature – it would have been fully sufficient to provide that the charity and the person making the solicitation owe a “duty” to the donor.

A Revocable Trust Is Not a Separate Legal Entity – Part 2

A second recent opinion reinforces the fundamental rule that an inter-vivos revocable trust is not an entity separate from the trustee.  In Presta v. Tepper, 2009 DJDAR 16603 (Nov. 27, 2009), the court provided the following analysis:

“Two men enter into a real estate investment partnership, each acting in his capacity of trustee of a family trust.  The question is: who are the ‘partners,’ the men, or the trusts?

Venice“The answer is ‘the men.’  A trust of the type formed by both men in this case is simply a fiduciary relationship, governed by the Probate Code, by which one person or entity owns and controls property for the benefit of another.  Such a trust is not an entity separate from its trustee, and cannot independently do anything – it cannot sue or be sued; it cannot enter into agreements; and it cannot fulfill the fiduciary duties of a partner.”

Oh boy.  You can’t say it much more clearly than that.

The litigation followed the death of one of the partners.  The partnership was formed by Ronald and Robert, each of whom signed the partnership agreement on behalf of his respective estate planning trust.  The court made short order of the argument that the trust, not the individual, was the partner.  Said the court.

“We have no trouble concluding, as a matter of law, that it was they, and not their respective ‘trusts,’ who were the partners in the two agreements at issue herein.

“The fundamental flaw in Renee’s argument is that it assumes a trust is an entity, like a corporation, which is capable of entering into a business relationship such as a partnership.  It is not.  It has long been established under California law that an express trust of the type created by Presta and Tepper is merely a relationship by which one person or entity holds property for the benefit of some other person or entity:  A trust is any arrangement which exists whereby property is transferred with an intention that it be held and administered by the transferee (trustee) for the benefit of another.”

The court further explained that the tax status of the trusts did not change its analysis in one iota.  True, the trust had its own taxpayer identification number and true again, the trust was required to report income and file a tax return.  Yet, the court sliced to the heart of the matter, explaining that:

“The tax status of these trusts is nothing more than a reflection of their essential purpose:  to establish a special category of property ownership by which the property is divided between the trustee who holds record title and controls it, and those who are entitled to receive its benefits.

“The fact that the taxing authorities chose to create a separate category for assessing the tax liabilities associated with such properties suggests nothing more than a determination that there are tax liabilities associated with such properties – and that since neither the trustee nor the beneficiaries owns the entirety of the trust property, those liabilities cannot simply be assigned to either of those in their individual capacities.  Nothing in that determination changes the nature of such trust relationships, nor conveys ‘entity’ status upon them.”

Hooray for the court, which got it right on all points.  The popular revocable estate planning trust is not an entity, it is a relationship.  (Of course, the trust also partakes of contract, but many obligations arise outside of the contract.)