The Fiduciary Obligation: A Proposal for the Sudanese Courts and Legislature

Abstract

This paper discusses the different aspects of the fiduciary obligation with specific emphasis on the position of Sudan. The historical aspects that connect the fiduciary obligation with Sudan and the Sudanese legal system are explored to build up a realistic scheme of proposals for the future

The fiduciary obligation originated in equity under the old English legal system. Originally, there were two separate streams of courts in England which were, common law courts and equity courts. This continued until the two systems of courts were merged by the Judicature Act 1873. The main function of equity courts was to do justice to cases where the rigid rules (writs of actions) of common law fail to do so.

In Sudan we have a history of the formula of Justice, Equity, and Good Conscience, brought to our courts by the British with the purpose of filling up the gaps in the law at that time. It was aimed at encouraging judges to think of the best approach to decide cases when no clear legal rule can be found to cover the particular situation. On this basis, the concept of the fiduciary obligation as a product of equity, has a solid historical foundation in the Sudanese legal system. The analysis will provide clear evidence of the relevance of fiduciary concept to Sudanese law^[1]. We will discuss the origin of the concept, its definition, scope and the constituent duties it embraces^[2].

 Full understanding shall be the cornerstone in causing the fiduciary concept to be applied in a conscious and intended way by the Sudanese courts, and cause Sudanese writers to give it more attention. We will arrive at certain suggestions and recommendations that will rely on our legal heritage and previous practices and explain how they can be enhanced and employed  to further support the application of the fiduciary obligation in Sudan.

^[1] We will follow the historical background of the Sudanese jurisprudence in the fiduciary law, to help us build on that to provide realistic proposals for the future.

^[2] The fiduciary obligation is a broad concept that embodies a number of subordinate duties, reference to the fiduciary obligation is reference to the concept or principle, whereas reference to the fiduciary obligations or fiduciary duties refers to the group of subordinate duties.