1.4.1 The Uniform Trust Code
The Uniform Trust Code provides that the traditional fiduciary obligations operate as default rules that can be modified somewhat by the trust agreement. This very approach suggests a contractarian approach to the law of trusts. Certain rules, however, are non-modifiable, including the ability of any trust agreement to alter the “duty of a trustee to act in good faith and in accordance with the terms and purposes of the trust and the interests of the beneficiaries.” Although this is framed in what may sound like contractarian vocabulary (“good faith”), it is in fact close to the classic formulation of the fiduciary duty of loyalty. The Uniform Trust Code may be “permeated with (contractarian) default rule rhetoric” but it came out solidly in the anti-contractarian camp by rejecting a pure “good faith” standard in the contract, Uniform Commercial Code, sense.