Martin Gelter and Geneviève Helleringer
This chapter surveys fiduciary principles in Western European civil law jurisdictions. Focusing on France and Germany, it shows that functional equivalents to fiduciary duties have developed on the Continent, although they do not always carry exactly the same connotations as their common law counterparts. The common law developed fiduciary duties as a distinct category largely for two reasons. First, the common law distinguished between law and equity, with fiduciary law developing within equity. By contrast, contract law required consideration, which meant that fiduciary principles for gratuitous actions necessarily arose outside of contract law. Civil law generally did not develop this particular categorization. Consequently, the lines between fiduciary and contract law remained blurred. Second, common law bargaining for contracts emphasizes parties’ autonomy, while the civil law was more hospitable to an implied and inchoate loyalty obligation. The chapter surveys the civil law of agency, equivalents of trust, as well as corporate and financial law.
This chapter focuses on fiduciary principles that operate in the Roman law. It first provides an overview of Roman legal institutions and their key features, asking whether an institution involves a fiduciary relationship or otherwise shows fiduciary principles at work. Key institutions in the law of persons or status (patria potestas, tutela or tutorship, cura), contract (fiducia, mandatum), property (“bonitary owner,” dos or dowry, usufruct, peculium), and succession (fideicommissum, foundations or trusts for purposes) which might be thought to involve a fiduciary element are considered. The chapter proceeds by discussing principles of the modern law of trusts or fiduciary law and the extent to which they appear in Roman law, with emphasis on equitable principles and good faith, ownership, fiduciary administration of property, and conflict of interest. Finally, it examines remedies developed by the courts of equity to protect the beneficiary’s interests.