Abstract
In the law of alternative entities, Delaware has gained a reputation as a jurisdiction that honors freedom of contract, both by statute and by judicial decisions. Its judiciary purports to eschew judicial shenanigans, that, in other jurisdictions, provide relief for partners in partnerships and members in limited liability companies who have made regrettable bargains. But is the Delaware judiciary really true to the concept of contractual freedom? What does it do when faced with a really hard case -- will it toe the freedom of contract line?A number of Delaware cases can give one pause about the commitment of the Delaware judiciary to freedom of contract, either because the language of the opinion seems less than absolute or the result can be characterized as an implicit rejection of freedom of contract. The latter are relatively rare, but extant, while the former are abundant. In this chapter, I explore the extent to which the Delaware courts embrace the freedom of contract in light of the statutory and common law mandates requiring that they do.
Published Version
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