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Fiduciary Law as Equity’s Child

Research output: Chapter in Book/Report/Conference proceedingChapter

Original languageEnglish
Title of host publicationContract, Status, and Fiduciary Law
EditorsPaul Miller, Andrew Gold
Place of Publicationoxford
PublisherOxford Univeristy Press
Chapter7
Pages139-166
ISBN (Print)9780198779193
DOIs
Publication statusPublished - 2016

King's Authors

Abstract

In this chapter, I argue that the fiduciary doctrine is a successful brainchild of the courts of Equity, and that it should be preserved as a distinct bundle of legal rights and duties. The most powerful modern challenge to this view - the ‘contractarian’ argument that fiduciary law is in fact a species of contract law- is analysed as a type of ‘fusion’ project, i.e., as another strand in the ambitious endeavour to unify Equity and Common Law. It is argued that Equity’s picture of the law of fiduciaries as sui generis, with its own terminology, rules and remedies is doing a far better job at achieving the goals of fiduciary law than its contractarian-fusion counterpart. In marking out a distinct legal zone in which fiduciaries must operate, Equity uses its distinct features to create an environment where fiduciary relationships, and the confidence and trust they assume, can flourish. A contractarian interpretation of the fiduciary position, I argue, will be devastating for this environment, and without it the whole scheme of fiduciary relationships is in danger of withering away.

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