Lionel Cohen Lecture: The Content of Fiduciary Obligation

Abstract

Fiduciary obligations form a sub-set of those primary obligations the breach of which constitutes a civil wrong. Only by starting from the obligation of the express trustee can one establish a clear picture of their content. ‘Fiduciary’ is one vehicle for exporting incidents of the express trust by analogy. The trustee's obligation differs from other primary obligations in the degree of altruism which it requires. The trustee must not only take care of the interests of another but must do so disinterestedly. This is the third and highest degree of legally obligatory altruism. The question then arises whether the trustee's obligation mutates when imposed on non-trustees. The core obligation never changes. A sub-problem then emerges: Can negligence be a breach of any one of three different primary duties and hence three different wrongs: breach of contract, tort, and breach of fiduciary duty? The last section of the lecture looks for the best way to dispel that illusion.