Friday, June 10, 2011
Frederick R. Franke, Jr. (Attorney at Law, Annapolis, Maryland) recently published his article entitled Resisting the Contractarian Insurgency: The Uniform Trust Code, Fiduciary Duty, and Good Faith in Contract, 36 ACTEC L.J. 517 (Winter 2010). The ACTECT abstract is below:
Fiduciary duty has long formed the basis of the relationship of a trustee to the beneficiaries of a trust. The law and economics doctrine of legal theory, popular in academia and with certain courts, holds that legal relationships are profoundly contractual. The result of such interpretation is to strip fiduciary duty of its moral footing and to reinterpret it as merely requiring good faith in the contract sense: a minimal requirement of honesty in fact. This article explores the implications of the contractarian model to the law of trusts, how the Uniform Trust Code handles the issue and, by way of contrast, how the contractarian model transformed the fiduciary duties owed by partners under the revised Uniform Partnership Act.