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Smith, D. Gordon; Gold, Andrew S. --- "Introduction to the Research Handbook on Fiduciary Law" [2018] ELECD 286; in Smith, G. D.; Gold, S. Andrew (eds), "Research Handbook on Fiduciary Law" (Edward Elgar Publishing, 2018) 1

Book Title: Research Handbook on Fiduciary Law

Editor(s): Smith, G. D.; Gold, S. Andrew

Publisher: Edward Elgar Publishing

ISBN: 9781784714826

Section Title: Introduction to the Research Handbook on Fiduciary Law

Author(s): Smith, D. Gordon; Gold, Andrew S.

Number of pages: 12

Extract:

Introduction to the Research Handbook on Fiduciary Law D. Gordon Smith and Andrew S. Gold
Fiduciary law governs myriad relationships, including employment relationships, business organizations, and professional relationships. Fiduciary relationships characteristically have two parties, a fiduciary and a beneficiary, each of which may be an individual, an organization, or a group of individuals or organizations. The fiduciary acts on behalf of the beneficiary. Trustees are fiduciaries for the beneficiaries of the trust. People with managerial power in a business organization ­ partners, officers, directors, and so forth ­ are fiduciaries for the owners of the business organization. Professionals like doctors, lawyers, and clergy may be fiduciaries with respect to their patients, clients, and parishioners. Nations can be fiduciaries and so can government officials. Despite the varied contexts of fiduciary relationships, scholars have sometimes attempted to understand fiduciary law as a branch of contract, tort, or unjust enrichment. Subsuming fiduciary law within these larger headings has always been challenging. For example, while many fiduciary relationships are formed by contracts, fiduciary relationships need not be contractual. Also, the usual compensatory remedies for torts and contracts differ from the restitutionary remedies for breach of fiduciary duty. And whether a person is unjustly enriched may depend on whether the person is a fiduciary, meaning that the reference to unjust enrichment as a defining element of fiduciary law is tautological. Thus, fiduciary law does not sit well as a subcategory of other areas of law. While the awkward fit of fiduciary law with other major legal categories ...