Introduction

Good faith is said to be central to fiduciary duties: it is said to be one of the core duties of a fiduciary in the execution of his office. Yet it is equally true that duties of good faith apply to others, who are undoubtedly not fiduciaries. How can this apparent inconsistency be explained? How can a central duty affecting fiduciaries be a duty which, if far from ubiquitous, is apparently much more common than its application to fiduciaries? Answering these questions is vital to understanding the scope and function of fiduciary doctrine.

The way forward is to recognize the fundamental point that legal duties, like all other things, can be categorized in different ways for different purposes: it is conceptually meaningless to categorize other than in a teleological fashion. This chapter addresses the application of that observation to duties of good faith in order to show that it is possible for such duties to apply to persons who are not fiduciaries, while at the same time meaning something unique when they are applied in the fiduciary context.

Some introductory observations on legal categorization

In seeking to understand a complex set of duties, such as the duties that apply to fiduciaries, one can legitimately ask different questions about those duties, to different ends. There is more than one way to skin a cat.