Contract, Trust and Corporation: from Contrast to Convergence
39 Pages Posted: 24 Feb 2016 Last revised: 22 Jun 2017
Date Written: February 22, 2016
This Article presents a new theory of fiduciary relationships. Using legal analysis, legal theory and the results of an unprecedented global survey of professional fiduciaries, I show that fiduciary relationships are not now fundamentally different from contractual relationships. I then show how different types of fiduciary relationships are converging. Scholars commonly claim that trusts are very different from corporations, and that the fiduciary obligations imposed on trustees are more severe, and more severely enforced, than those imposed on corporate directors and officers. I show how this view is not borne out by large parts of both current law and current practice. That neither fiduciary relationships generally, nor traditionally distinct types of such relationships, can now be distinguished from other relationship types expresses the current reformulation of most social and economic relationships as short-term, arm's length, commodified transactions. Because it expresses such an overall transformation, the commodification of fiduciary relationships is unlikely to be reversible by law reform returning fiduciary law to its protective roots.
Keywords: trusts, fiduciary relationship, fiduciaries, contract, corporation, legal theory, settlor, trustee, beneficiary
JEL Classification: C42, G21, G23, G28, H73, K11, K12, K19, K22, K23, L14, L84
Suggested Citation: Suggested Citation