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Contract, Status, and Fiduciary Law$
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Paul B. Miller and Andrew S. Gold

Print publication date: 2016

Print ISBN-13: 9780198779193

Published to Oxford Scholarship Online: January 2017

DOI: 10.1093/acprof:oso/9780198779193.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2021. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 06 December 2021

What if Fiduciary Obligations are like Contractual Ones?

What if Fiduciary Obligations are like Contractual Ones?

(p.93) 4 What if Fiduciary Obligations are like Contractual Ones?
Contract, Status, and Fiduciary Law

Gregory Klass

Oxford University Press

This chapter explores three ways in which fiduciary obligations might be like contractual ones: in the methods lawmakers use or should use to determine the content of the obligation; in the private voluntary acts that generate the obligation; and in the fact that the obligation is a default that parties have the power to alter. The thesis is that to the extent that these similarities exist, they are not especially revealing. Theorists who emphasize the similarities commonly treat contract law as a private power-conferring rule, then analogize the law of fiduciary obligations to it. In fact, the law of contract is more complex and serves a broader range of purposes than just giving private parties the ability to undertake legal obligations when they choose. Contract obligations are sometimes imposed for reasons other than party choice, and contract defaults and altering rules can be designed to serve other social purposes. A more nuanced understanding of the functions and design of contract law suggests that structural similarities between fiduciary obligations and contractual ones tell us less about the fiduciary obligations than we might have hoped. The explanation of why that is so, however, reveals important features both of contract law and of the law of fiduciary obligations.

Keywords:   contract, fiduciary obligations, jurisprudence

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