Freedom of contract, fiduciary duties, and partnerships: The bargain principle and the law of agency

The issue whether to allow waiver of fiduciary duties generates inquiries into root matters of policy, including determining the underlying nature of private business relationships, the weight to be given to personal responsibility for agreements, and the appropriate role of the law in this context. An argument for freedom of contract rests on the bargain principle as reflected in the law of agency when addressing similar issues and on the unique situation of partners, who have bargaining status and many tools available to them for protection from an opportunistic partner. When coupled with a requirement of specificity and a broad view of unconscionability, this argument carries the greater weight.