Chapter 6. The Fiduciary Concept, Contract Law, and Unjust Enrichment: a Functional Comparison

Abstract

This chapter articulates a vision of the fiduciary concept that distinguishes it functionally from the contiguous areas of contract and unjust enrichment. It suggests that the fiduciary concept's broad social and economic goals are far more ambitious than those of either contract or unjust enrichment, which are primarily designed to facilitate individual justice between parties. Thus, the very purpose of the fiduciary concept justifies its doctrinal separation from contract, unjust enrichment and, indeed, other areas of law. The fiduciary concept accentuates the unique aspects of individual relations, thereby facilitating an expansive understanding of the nature of obligations existing between parties - or what is sometimes referred to as their 'spirit and intent' - that transcends their strict, common law characterization. By distinguishing the fiduciary concept from contract law and unjust enrichment, the former may be more effectively and appropriately used in Canadian jurisprudence and elsewhere. Keywords: Canadian jurisprudence; common law; Contract Law; fiduciary concept; Unjust Enrichment