‘Proving Breach of Fiduciary Duty or Accessory Liability by an Art Gallery, Dealer, or Auction House’

This is the title of one of my three essay for the Diploma in Art Law Course at the Institute of Art & Law in London, see the ‘Mediation of Art & Cultural Heritage Disputes’ page at www.carlislam.co.uk. ‘In determining whether a person is a fiduciary, it is first necessary to consider whether that person is in a relationship with another that falls within one of the recognized categories of fiduciary relationships. If it does not, it is then necessary to examine the factual circumstances of the relationship to determine whether there are sufficient hallmarks of a fiduciary relationship to enable the court to conclude that the relationship is indeed fiduciary. Once it has been recognized that the defendant is a fiduciary in a fiduciary relationship, it is necessary to consider the nature and ambit of the fiduciary duties to which he is subject. Outside of the paradigm settled cases, the content of fiduciary duties is flexible and fact-sensitive. In that context, it is therefore necessary to examine with some care what is the precise content of the particular fiduciary obligations arising in the specific circumstances of the individual case. Fiduciary duties only subsist as long as the fiduciary holds the office or position that gives rise to them.’ (My article – ‘Breach of fiduciary duty claims and the quiet fiduciary thesis’, published by Oxford University Press in ‘Trusts & Trustees’, March 2019). There is a link to the article of the ‘Publications’ page at www.carlislam.co.uk. Breach of FD, third party (including accessorial liability), and equitable remedies are discussed in my book the ‘Contentious Trusts Handbook’, published by the Law Society in 2020. In the essay I will also discuss accessorial liability arising from breach of the self-dealing rule by an executor/beneficiary who purchases a work of art e.g. a painting by/owned by the deceased testator (which is an estate asset) at an undervalue, and who then consigns it for sale, and the equitable remedies available to restrain a sale. This along with ‘Freezing Orders’, will also be discussed in the 2nd edition of my book, the ‘Contentious Probate Handbook’, which I am writing for publication by the Law Society in 2024.