Thus, under the contractarian theory adopted under the acts, there are very limited mandatory rules governing partner relations: a shrunken duty of loyalty (to the extent that duty is not further restricted by agreement) and the contract obligation of good faith. This is quite different than the role that fiduciary duty traditionally played as the fundamental principle governing partner relations with the power to trump specific authority contained in the partnership agreement:
Questions about whether these rules (the UPA provisions) are default rules or mandatory rules do not arise simply because textual analysis raises the inevitable comparisons. They arise because different policy conclusions could be reached by different people. A libertarian, free-market oriented policy maker is likely to suggest that all the rules governing the relations among the partners should be merely default rules – that partners ought to be held to whatever bargain the negotiate. A more parentalistic policy maker, on the other hand, would be more inclined to support mandatory fiduciary duties to protect minority partners. For example, a parentalistic might resist the conclusion that a minority partner should be permitted to contract away his access to partnership books and records.
The Draft Committee wanted to make clear that all but a very few of the rules governing the relations among partners are merely default rules. It was only in rare situations that the Committee felt that the rules should be mandatory. Mandatory rules governing the relations among partners are essentially parentalistic, and the Committee felt that, with only very limited exception, adults in nonconsumer transactions are old enough and wise enough to be held to their agreements.[1]
Under the contractarian model, of course, the parties could be free to adopt provisions that would, in effect, reinstate a general fiduciary duty to govern the relationship between the general partner and the limited.[2]
