Must Salmon Love Meinhard? Agape and Partnership Fiduciary Duties

Stephen M. Bainbridge

University of California, Los Angeles (UCLA) - School of Law

October 8, 2013

UCLA School of Law, Law-Econ Research Paper No. 13-17

Jeffrie Murphy has noted that “John Rawls claimed that justice is the first virtue of social institutions,” but Murphy then went on to ask “what if we considered agape to be the first virtue? What would law then be like?” When I was asked to contribute a paper on business organization law to a conference organized around Murphy’s question, the conference call immediately brought to mind then-Judge Benjamin Cardozo’s opinion in Meinhard v. Salmon, which famously held that a managing partner “put himself in a position in which thought of self was to be renounced, however hard the abnegation.” The parallels between Cardozo’s framing of the partner’s duties and a standard definition of agape, which holds that it is a “self-renouncing love,” are obvious and striking.

What then would partnership fiduciary duty law be like if it were organized around the value of agape? This essay concludes that partners need not love one another, at least as a matter of legal obligation. Agape is simultaneously too indeterminate and too demanding a standard to be suitable for business relationships. On the other hand, however, I conclude that partners ought to love one another. An analysis of Cardozo’s rhetoric and the intent behind it suggests that agape has great instrumental value. Partners who love one another can trust one another. In turn, partners who trust one another will expend considerably less time and effort — and thus incur much lower costs — monitoring one another. Agape thus should not be the law, but the law should promote agape as best practice.

To be presented at the Law and Love Conference, to be held at Pepperdine University School of Law, on February 7-8, 2014.

Number of Pages in PDF File: 13

Keywords: partnership, fiduciary duty, agape, love

JEL Classification: K22

Accepted Paper Series

Download This Paper

Date posted: October 10, 2013  

Suggested Citation

Bainbridge, Stephen M., Must Salmon Love Meinhard? Agape and Partnership Fiduciary Duties (October 8, 2013). UCLA School of Law, Law-Econ Research Paper No. 13-17. Available at SSRN: http://ssrn.com/abstract=2337659

Contact Information

Stephen Mark Bainbridge (Contact Author)
University of California, Los Angeles (UCLA) - School of Law ( email )
385 Charles E. Young Dr. East
Room 1242
Los Angeles, CA 90095-1476
United States
310-206-1599 (Phone)
310-825-6023 (Fax)
HOME PAGE: http://www.professorbainbridge.com
Feedback to SSRN

Paper statistics
Abstract Views: 428
Downloads: 123
Download Rank: 129,808

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo7 in 0.359 seconds