Enriching your knowledge

Fiduciary

THIS IS A word used especially for a person who operates as a trustee. The word is derived from Roman law. This person is supposed to be above reproof when he acts in the interest of another.

Because this is a very important role, he or she must act in good faith and exercise the honesty and fairness that the law imposes on him or her. For example, a director in a corporation has the duty of loyalty to the company, and as such, a duty to act for the benefit of the shareholders who have reposed trust and confidence in him with their money. He is said to have fiduciary duties and he must exercise the diligence, care and skill that an ordinary and prudent person would exercise under similar circumstance, otherwise he would have breached his duty of care. As a director of a company, he is obliged not to usurp corporate opportunity, or to appropriate corporate resources for his own benefit.
As a trustee for a trust, a fiduciary possesses a responsibility to manage money or property for the beneficiaries. If he breaches the trust he is liable to the beneficiaries who stand to lose by his action.

Discretion

This word is used in everyday situations where one has an option. It is used in a similar sense in the law. The law confers upon judges the power or right, in certain circumstances, to act according to the dictates of their own judgment. However, a judge must act in light of reason as applied to all facts and with the view of the rights of the parties while having regard for what is right and equitable under the law. The judge does not always have discretion under the circumstances of he law. The judge does not always have discretion, as the law could be mandatory. In that instance the judge must act according to the stipulated words of the law.

Affidavit

This is the name of a document that is used in legal practice. You might have reason to swear to an affidavit in a matter in court. Your lawyer drafts the document with your input to support the matter. Someone, most likely a witness, might have to swear to an affidavit on your behalf to support your matter in court. It is a printed declaration of statement of facts, voluntarily given. It is a way by which a person tells his story. This document requires an oath that must be confirmed by signing the document before a registrar of the High Court or a notary public. An affidavit of service is required of any bailiff who serves documents on another. It is an indication that the document was served on the person named in the document and it is required by the court to certify service.

Damages

The word is popularly used in civil cases and it is the reason why many claimants seek the help of the court. A claimant seeks the help of the court to retrieve money owing to him by the defendant.
Black’s dictionary describes damages, as money “recovered in court by a person who has suffered loss, detriment, or injury, whether to his person, property, or rights through the unlawful act or omission or negligence of another.” Damages can be compensatory as well as punitive. Compensatory award is payment for losses suffered. Punitive award, on the other hand, is punishment for outrageous conduct to deter future behaviour. Damages could be nominal, that is, the award is a trifling sum because there is no substantial loss or injury to be compensated.

Ada Johnson is a solicitor and barrister-at-law. E-mail address is: exploringthelaw@yahoo.com