1.4 Fiduciary Duty as a Separate and Stand-Alone, Non-Contract Principle
Whether, or to what extent, fiduciary duty as a separate and stand-alone, non-contract principle should continue to play a pivotal role in trust and partnership law has been debated over the course of the past few decades. Both the Uniform Trust Code and the revised Uniform Partnership Act were written at the time, and against the general backdrop, of the academic debate reinterpreting all relationships as essentially contractual in nature. This debate has generated more than a few articles. Some of the articles related to trusts include: Langbein, “Contractarian,” supra note 6; Fitzgibbon, supra note1; Boxx, supra note 7; Melanie B. Leslie, “Trusting Trustees: Fiduciary Duties and the Limits of Default Rules,” 94 Geo. L.J. 67 (2005)[hereinafter Leslie, “Trusting Trustees”]; Arthur B. Laby, “The Fiduciary Obligation as the Adoption Ends,” 56 Buff. L. Rev. 99 (2008). Some of the articles related to business organizations include: Deborah A. DeMott, “Beyond Metaphor: An Analysis of Fiduciary Obligation,” 1988 Duke L.J. 879 (1988); Henry N. Butler & Larry E. Ribstein, “Opting Out of Fiduciary Duties: A Response to the Anti-Contractarians,” 65 Wash. L. Rev. 1 (1990); J. Dennis Hynes, “Freedom of Contract, Fiduciary Duties, and Partnerships: The Bargain Principle and the Law of Agency,” 54 Wash. & Lee L. Rev. 439 (1997); Allan W. Vestal, “Fundamental Contractarian Error in the Revised Uniform Partnership Act of 1992,” 73 B. U. L. Rev. 523 (1993)[hereinafter Vestal, “Fundamental Contractarian Error”]; Lawrence E. Mitchell, “The Naked Emperor: A Corporate Lawyer Looks at RUPA’s Fiduciary Provisions,” 54 Wash. & Lee L. Rev. 465 (1997)[hereinafter Mitchell, “The Naked Emperor”]; Allan W. Vestal, “‘Assume a Rather Large Boat …’: The Mess We Have Made of Partnership Law,” 54 Wash. & Lee L. Rev. 487 (1997); Hillman, “Business Partners as Fiduciaries: Reflections on the Limits of Doctrine,” supra note 5.