Contract, Trust and Corporation: from Contrast to Convergence

39 Pages Posted: 24 Feb 2016 Last revised: 22 Jun 2017

See all articles by Adam S. Hofri-Winogradow

Adam S. Hofri-Winogradow

Faculty of Law, Hebrew University of Jerusalem

Date Written: February 22, 2016

Abstract

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

Hofri-Winogradow, Adam S., Contract, Trust and Corporation: from Contrast to Convergence (February 22, 2016). 102 Iowa Law Review 1691-1717 (2017); Hebrew University of Jerusalem Legal Research Paper No. 16-18. Available at SSRN: https://ssrn.com/abstract=2736559

Adam S. Hofri-Winogradow (Contact Author)

Faculty of Law, Hebrew University of Jerusalem ( email )

Mt. Scopus Campus
Jerusalem, 9190501
Israel
523592980 (Phone)
523592980 (Fax)

HOME PAGE: http://en.law.huji.ac.il/people/adam-hofri

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