The Fiduciary Relationship
Paul B. Miller
McGill University Faculty of Law
November 10, 2013
Forthcoming in: Andrew S. Gold & Paul B. Miller, eds., Philosophical Foundations of Fiduciary Law (Oxford: Oxford University Press)
Fiduciary law is rife with references to fiduciary relationships. Most notably, the attribution of fiduciary duties turns on the existence of a "fiduciary relationship." But does private law admit of such a construct, and if it does, is the fiduciary relationship distinctive relative to other kinds of private law relationship? Many fiduciary law scholars are skeptical on both counts. Leading scholars have claimed that the fiduciary relationship is indefinable. Others say that, when properly defined, the fiduciary relationship is seen to be non-distinctive. In this chapter I argue that the fiduciary relationship is both definable and distinctive. I advance a theory of the fiduciary relationship – the fiduciary powers theory – which suggests that fiduciary 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 fiduciary powers theory by demonstrating that it can account for the fiduciary nature of relationships of recognized fiduciary status and by showing how it can help resolve disputes over the characterization of other relationships.
Number of Pages in PDF File: 48
Keywords: Philosophy of Private Law, Private Law Theory, Fiduciary Law, Fiduciary Relationships, Fiduciary Duties, Duty of Loyalty
JEL Classification: K00, K10, K11, K12, K13, K20, K22Accepted Paper Series
Date posted: November 14, 2013
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