A critical discussion on the adoption of the concept of “fiduciary contract” as an autonomous category in Chilean law: commentary on the Supreme Court decision of May 4th, 2023 (Case N° 69.820-2020)

Abstract

In 2023, the Chilean Supreme Court explicitly recognized the “fiduciary business” as an autonomous category within agency matters under Chilean law. This commentary reviews the reasonableness of this decision and other prevailing theories seeking to explain this figure, arguing that they are inconsistent with the structure of Chilean property law. Instead, it suggests an understanding of this conceptual category based on the “persistent rights” theory, which has recently been developed in English scholarship and comparative studies to explain the functioning of “trusts”.