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Vol 23 No 5 May/June 2018

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Drafting Commercial Agreements

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Contract, Status, and Fiduciary Law

Edited by: Paul B. Miller, Andrew S. Gold

ISBN13: 9780198779193
Published: November 2016
Publisher: Oxford University Press
Country of Publication: UK
Format: Hardback
Price: £75.00

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Contractual and fiduciary relationships are the two primary mechanisms through which the law facilitates coordinated pursuit of our personal interests.

These fields are often represented in oppositional terms, and many accept the distinction that contract law allows an individual to pursue their interests independently, while fiduciary law allows an individual to pursue their interests in a dependent or interdependent way.

Relying on this distinction, however, seems to suggest that the boundaries between the fields of contract and fiduciary law are fixed rather than fluid.

Bringing together leading theorists to analyse critically important philosophical questions at the intersection of contract and fiduciary law, Contract, Status, and Fiduciary Law demonstrates that the popular characterizations of the relationship between contract and fiduciary law are overly simplistic.

By considering how contract and fiduciary law interact, and not just how they differ, the contributors to the this volume offer new insights into a range of topics, including: status relationships, voluntary undertakings, duties of loyalty, equity, employment law, tort law, the law of remedies, political theory, and the theory of the firm.

Contract Law, Equity and Trusts
Introduction Paul B. Miller and Andrew S. Gold:

I. Contract, Status, and Fiduciary Relationships
1: Paul B. Miller: The Idea of Status in Fiduciary Law
2: Hanoch Dagan and Elizabeth S. Scott: Reinterpreting the Status-Contract Divide: The Case of Fiduciaries
3: Matthew Harding: Fiduciary Undertakings

II. Contractual and Fiduciary Obligations
4: Gregory Klass: What if Fiduciary Obligations Are Like Contractual Ones?
5: Lionel D. Smith: Contract, Consent, and Fiduciary Relationships
6: Irit Samet: Fiduciary Law as Equity's Child
7: Emily L. Sherwin: Formal Elements of Contract and Fiduciary Law

III. Loyalty and Morality Across Contract, Fiduciary, and Tort Law
8: Andrew S. Gold: Accommodating Loyalty
9: Stephen A. Smith: The Deed, Not the Motive: Fiduciary Law Without Loyalty
10: John C.P. Goldberg and Benjamin C. Zipursky: Triangular Torts and Fiduciary Duties

IV. Contract and Status Within the Firm
11: Aditi Bagchi: Exit, Choice, and Employee Loyalty
12: D. Gordon Smith: Firms and Fiduciaries

V. The Fiduciary State and the Institution of Contract
13: Margaret Jane Radin: The Fiduciary State and Private Ordering