Reinterpreting the Status-Contract Divide: The Case of Fiduciaries

Forthcoming in: Paul B. Miller & Andrew S. Gold, eds., Contract, Status, and Fiduciary Law (Oxford: Oxford University Press, 2016)

Columbia Public Law Research Paper No. 14-476

24 Pages Posted: 8 Jun 2015 Last revised: 19 Dec 2015

See all articles by Hanoch Dagan

Hanoch Dagan

Tel Aviv University - Buchmann Faculty of Law

Elizabeth S. Scott

Columbia University - Law School

Date Written: August 20, 2015

Abstract

The distinction between status and contract permeates legal analyses of categories of cooperative interpersonal interactions in which one party has particular obligations to the other. But the current binary understanding of the distinction has facilitated its use as a foil and thus undermined its conceptual and normative significance. This predicament is understandable given that the innate, comprehensive and inalienable status as well as the wholly open-ended contract anticipated by commentators are corner – rather than core – alternatives in a liberal polity. Hence, to clarify these normative debates we introduce two further, intermediate conceptions: office and contract type. Like the innate status, an office, such as our example of parenthood, is often subject to immutable legal rules and its core obligations not fully assignable; by contrast, a contract type, such as our example of financial fiduciaries law, is mostly subject to default rules that can be rejected or adjusted by the parties and even core tasks can be delegated. These differences derive from and properly reflect the divergent relationships to which offices and contract types apply – identitarian or instrumental – as well from the salience of the asymmetrical vulnerability of one of the parties.

Suggested Citation

Dagan, Hanoch and Scott, Elizabeth S., Reinterpreting the Status-Contract Divide: The Case of Fiduciaries (August 20, 2015). Forthcoming in: Paul B. Miller & Andrew S. Gold, eds., Contract, Status, and Fiduciary Law (Oxford: Oxford University Press, 2016); Columbia Public Law Research Paper No. 14-476. Available at SSRN: https://ssrn.com/abstract=2615601 or http://dx.doi.org/10.2139/ssrn.2615601

Hanoch Dagan (Contact Author)

Tel Aviv University - Buchmann Faculty of Law ( email )

Ramat Aviv
Tel Aviv 69978, IL
Israel
+972 3 640 7302 (Phone)

Elizabeth S. Scott

Columbia University - Law School ( email )

435 West 116th Street
New York, NY 10025
United States
(212) 854-9758 (Phone)
(212) 854-7946 (Fax)

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