Trust and Fiduciary Law

Oxford Journal of Legal Studies, Vol 33. No. 1, 2013

U of Melbourne Legal Studies Research Paper No. 686

23 Pages Posted: 17 Jun 2014  

Matthew Harding

University of Melbourne - Law School

Date Written: June 17, 2014

Abstract

How can it be that the fiduciary relationship has trust at its core if trust is neither a necessary nor a sufficient condition for the existence of such a relationship? My aim in this article is to make some arguments that I think might assist in solving that puzzle. First, I argue that fiduciary relationships are likely to be characterized by relatively ‘thick’ interpersonal trust. Secondly, I argue that moral duties referring to trust play a role in the justification of fiduciary duties, but that the role of trust in the underlying moral duties is contingent, yielding only a contingent connection between trust and fiduciary duties. Finally, I argue that a goal of fiduciary law should be enabling and supporting trusting relationships, but that this goal should be viewed within a broader liberal outlook according to which fiduciary law also enables and supports relationships on terms of detachment.

Keywords: equity, morality, normativity, discretion, private law, duty

JEL Classification: K00, K39

Suggested Citation

Harding, Matthew, Trust and Fiduciary Law (June 17, 2014). Oxford Journal of Legal Studies, Vol 33. No. 1, 2013; U of Melbourne Legal Studies Research Paper No. 686. Available at SSRN: https://ssrn.com/abstract=2453128

Matthew Harding (Contact Author)

University of Melbourne - Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia

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