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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

Fiduciary Law as Equity’s Child

Fiduciary Law as Equity’s Child

(p.139) 6 Fiduciary Law as Equity’s Child
Contract, Status, and Fiduciary Law

Irit Samet

Oxford University Press

In this chapter, fiduciary doctrine is argued to be a successful brainchild of the courts of Equity, which should be preserved as a distinct bundle of legal rights and duties. The most powerful modern challenge to this view—the ‘contractarian’ argument that fiduciary law is in fact a species of contract law—is analysed as a type of ‘fusion’ project, that is, as another strand in the ambitious endeavour to unify Equity and Common Law. It is argued that Equity’s picture of the law of fiduciaries as sui generis, with its own terminology, rules, and remedies is doing a far better job of achieving the goals of fiduciary law than its contractarian-fusion counterpart. In marking out a distinct legal zone in which fiduciaries must operate, Equity uses its distinct features to create an environment where fiduciary relationships, and the confidence and trust they assume, can flourish. A contractarian interpretation of the fiduciary position would be devastating for this environment, and without it the whole scheme of fiduciary relationships is in danger of withering away.

Keywords:   fiduciaries, equity, fusion, contractarians, financial fiduciaries

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