The Fiduciary Relationship

Abstract

Fiduciary law is rife with references to relationships. Most notably, the attribution of duties turns on the existence of a fiduciary relationship. But does private law admit of such a construct, and if it does, is the relationship distinctive relative to other kinds of private law relationship? Many law scholars are skeptical on both counts. Leading scholars have claimed that the relationship is indefinable. Others say that, when properly defined, the relationship is seen to be non-distinctive. In this chapter I argue that the relationship is both definable and distinctive. I advance a theory of the relationship – the powers theory – which suggests that relationships are typified by the fiduciary’s exercise of powers derived from the legal personality of persons (normally, the person of the beneficiary or her benefactor). I argue for the viability and utility of the powers theory by demonstrating that it can account for the nature of relationships of recognized status and by showing how it can help resolve disputes over the characterization of other relationships.

Cite this work

No public copy is stored for this record, so only the metadata is cited.

Stored only when both papers are in the corpus — 37 citations exist upstream.