
Contents
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I. Introduction I. Introduction
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A. In equity A. In equity
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B. Fusion: fiduciary duties as species of contractual obligations B. Fusion: fiduciary duties as species of contractual obligations
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C. Separation: fiduciary relationships are sui generis C. Separation: fiduciary relationships are sui generis
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1. What classifying a relationship as fiduciary can do for us and the case of financial fiduciaries 1. What classifying a relationship as fiduciary can do for us and the case of financial fiduciaries
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D. Two features of equitable fiduciary law and why we should preserve them D. Two features of equitable fiduciary law and why we should preserve them
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1. Language 1. Language
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2. The road into the relationship 2. The road into the relationship
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Conclusion Conclusion
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6 Fiduciary Law as Equity’s Child
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Published:November 2016
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Abstract
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.
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