William & Mary Business Law Review


This Note examines a largely unexplored consequence of jurisdictions adopting a default duty to mitigate for commercial leases: whether a contract provision waiving the duty should be enforced. Only a few courts across the country have addressed the waiver issue in a commercial setting. At least two different appeals courts have enforced a waiver clause and claim that public policy supports their decision. In contrast, a federal court has stated the opposite—that public policy demands waiver provisions be void. Another state has outright voided all waiver clauses by statute. Courts that have enforced waivers have asserted that commercial parties have equal bargaining power and that these parties are free to enter into whatever agreements they wish. This Note argues that courts should not enforce clauses purporting to waive the duty to mitigate, because waivers are against public policy and there is no guaranteed equal bargaining power between commercial landlords and tenants. Finally, this Note proposes that states should adopt a blanket rule outright voiding all waiver clauses.