Commercial Aspects of Trusts and Fiduciary Obligations

Paul Finn

There are five major issues of moment in contemporary fiduciary law. Four are of potential relevance to the concerns of this volume. The first, and seemingly perennial question, is that fundamental one: who is a fiduciary -- what is a fiduciary relationship?¹ The second is the manner in which and the extent to which fiduciary principles should be applied to commercial relationships and dealings -- an issue which in one direction is calling into question the extent to which fiduciary obligations should be allowed to supplement those bargained for in negotiated commercial contracts,² and in another, the use that can or should properly be made of fiduciary notions to achieve what is, in effect, a duty of good faith and fair dealing in contract formation, performance, and enforcement.³ The third, and in some ways the most intractable, is the proper role to be given fiduciary law in regulating the modern, multi-function business enterprise and the large professional partnership: this is the arena in which the issues of client-conflict, of secrecy and disclosure, of the efficacy of 'Chinese Walls and cones of silence' and the like, vex and threaten.⁴ The fourth is the product of the recent revitalization of the jurisdiction to award damages for breach of fiduciary duty⁵ and presages the development of what is, in effect, a surrogate tort of negligence. The final issue, which I merely mention, though it is not of immediate

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