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.
GELTER, M. et HELLERINGER, G. (2019). Fiduciary Principles in European Civil Law Systems. Dans: Evan J. Criddle, Paul B. Miller, Robert H. Sitkoff eds. The Oxford Handbook of Fiduciary Law. 1st ed. Oxford: Oxford University Press, pp. 583-602.