On Trust and Transubstantiation: Mitigating the Excesses of Ownership

This chapter develops two main claims. Negatively, it seeks to show that accounts of the trustee’s fiduciary obligations grounded in the settlor’s intention, the virtue of loyalty, or contract fall short of capturing the idea of the trust. Affirmatively, it argues that the grounds and content of the trustee’s fiduciary obligations are the upshot of the special difficulty that the trust institution picks out, namely, the excesses of ownership. On this argument, the institution of trust arises in connection with the difficulty of acquiring the standing of ownership, which is a status authority over anyone else with respect to an external object. A Trustee makes possible—that is, creates the legal space for—a derivative status of ownership: That which allows patients to enjoy access to the institution of ownership but, at the same time, to do without the agential powers characteristic of the standing that ownership involves.