Preface

Since early in my academic career, I have been fascinated by the common law’s concepts of fiduciary obligations and fiduciary relationships. How can we make sense of the idea that people are legally obliged to make decisions in the pursuit of the interests of other people? The basic elements of private law—contract, tort, and restitution—know nothing of this. Like many others, I was struck—‘haunted’ might be a better word—by the observation of a chief justice of Australia that ‘[t]he fiduciary relationship is a concept in search of a principle’.1 That can be read as a warning; I took it as a challenge. This book is my response. By 2000, I had become a comparative lawyer, thanks in no small part to Peter Birks and Michele Graziadei. I had begun to see in the civil law tradition a kind of parallel universe, a very different way of comprehending the realities I had hitherto known only through the concepts of the common law. When I came that year to McGill University, I continued teaching trust law and corporate law, a combination which already gives multiple perspectives on fiduciary relationships; but I also began to study and teach the civil law, which has its own language and concepts for the very same issues and problems. Not only does today’s Civil Code of Québec regulate carefully the administration of the property of others, but without looking too hard one can find, in the texts preserved in the Digest of Justinian, rules against unauthorized profits and against exercising powers held for others while in a conflict of interest. And so the challenge widened into one that at McGill might be called ‘transsystemic’. It became wider still as I became aware of a growing literature and case law exploring the question whether public powers can be understood as governed by principles that are similar to those that govern private powers held for others.

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