Private Law Theory

ABSTRACT
In a variety of familial, commercial, and professional contexts, the law imposes special duties on a person (the fiduciary) who has the power to act in the interest of another person (the beneficiary). The set of rules articulating these duties is known as fiduciary law. A clear delineation of the content and scope of fiduciary duties is crucial for guiding the conduct of fiduciaries and safeguarding the interests of beneficiaries. However, as this Article reveals, common law has fostered two entirely distinct conceptions of the ‘fiduciary’ across different contexts: a proprietary conception and an interpersonal conception. According to the proprietary conception, fiduciary law stops short at protecting the proprietary interests of the beneficiary. According to the interpersonal conception, fiduciary law is tasked with regulating the relationship between the fiduciary and the beneficiary. By examining case law on four fiduciary relationships-doctor-patient, parent-child, director-company, and lawyer-client-in leading common-law jurisdictions (the UK, US, Australia, and Canada), this Article uncovers these underlying conceptions. It argues that recognizing these distinctions can assist in resolving future disputes regarding the interpretation of fiduciary law and facilitate more precise debates about its desirable role. Furthermore, the Article demonstrates that specific jurisdictions consistently apply the same conception of fiduciary law across different fiduciary relationships. This finding challenges the common perception that fiduciary duties are adapted to different legal contexts and highlights fiduciary law as a focal point of interface between various fields of law.

Naftali Ben Zion, Yifat, The Underlying Conceptions of Fiduciary Law (October 1, 2023), III Oxford Studies in Private Law Theory (Paul B Miller and John Oberdiek eds, Oxford University Press, forthcoming 2024).