Transactional lawyers spend their careers on what a contract can say. Minnesota has spent the last several decades quietly building a body of law about what it cannot. Those provisions are scattered all over the code — construction in chapter 337, LLCs in chapter 322C, secured transactions in Article 9, data breach in chapter 325E, evictions in chapter 504B — so nobody reads them together. No practice area touches more than two of them. Mine happens to touch most of them, and reading them side by side changed how I review contracts.
Put them together and they aren’t random. Minnesota is remarkably easygoing about letting sophisticated parties divide up risk, money, and even fiduciary duty. What it won’t let them do is shut off the ways a court, or the other side, could later find out what actually happened.
The core of what you can’t waive in Minnesota is access, information, and forum. Nearly everything else is on the table. Here’s the proof, exhibit by exhibit.
Exhibit A: the LLC act says duties may not be eliminated, then tells you how to eliminate them
Minn. Stat. § 322C.0110, subd. 3 reads like a hard floor. An operating agreement “may not”:
(4) subject to subdivisions 4 to 7, eliminate the duty of loyalty, the duty of care, or any other fiduciary duty;
(5) subject to subdivisions 4 to 7, eliminate the contractual obligation of good faith and fair dealing under section 322C.0409, subdivision 4;
Then read the words “subject to subdivisions 4 to 7,” and go there. Subdivision 4:
If not manifestly unreasonable, and without limiting the terms that may be included in an operating agreement, the operating agreement may: (1) restrict or eliminate the duty [to account for property, profit, or benefit, including appropriation of a company opportunity; to refrain from adverse dealing; and to refrain from competing before dissolution]; (2) identify specific types or categories of activities that do not violate the duty of loyalty; (3) alter the duty of care, except to authorize intentional misconduct or knowing violation of law; (4) alter any other fiduciary duty, including eliminating particular aspects of that duty; and (5) prescribe the standards by which to measure the performance of the contractual obligation of good faith and fair dealing under section 322C.0409, subdivision 4.
The permission nearly swallows the prohibition. Loyalty can be restricted or eliminated piece by piece. Care can be altered. Other fiduciary duties can be altered or partly eliminated. Only two things are absolute: nothing may be manifestly unreasonable, and nothing may authorize intentional misconduct or a knowing violation of law.
Now look at what subdivision 3 does not qualify. Three restrictions carry no cross-reference to subdivision 4, and they’re the ones I grab when a member is being frozen out. An operating agreement may not:
(6) unreasonably restrict the duties and rights stated in section 322C.0410 [information rights];
(7) vary the power of a court to decree dissolution in the circumstances specified in section 322C.0701, subdivision 1, clauses (4) and (5) [including the oppression ground];
(9) unreasonably restrict the right of a member to maintain an action under sections 322C.0901 to 322C.0906 [direct and derivative actions].
Information. The courthouse. The right to sue. You can bargain away your partner’s duty not to compete with you. You can’t unreasonably restrict your ability to see the books or bring the action, and you can’t touch a court’s power to dissolve the company on the grounds clause (7) covers. I covered what that means in a live dispute here and the inspection right itself here.
Exhibit B: Article 9 draws the line at timing, not at fairness
Minnesota’s secured transactions law has one of the longest non-waiver lists in the code. Minn. Stat. § 336.9-602:
Except as otherwise provided in section 336.9-624, to the extent that they give rights to a debtor or obligor and impose duties on a secured party, the debtor or obligor may not waive or vary the rules stated in the following listed sections …
The list runs thirteen items. Among them: requests for an accounting and for a list of collateral (§ 336.9-210); accounting for and payment of surplus proceeds; the duty of a secured party taking possession without judicial process “to do so without breach of the peace”; the disposition rules at §§ 336.9-610(b), 336.9-611, 336.9-613, and 336.9-614; the deficiency calculation where the buyer is the secured party, a related person, or a secondary obligor; the explanation of how a surplus or deficiency was calculated; and redemption.
Look at what’s on that list. It’s almost all notice, accounting, explanation, and how self-help gets done — the things that let a debtor piece together what the secured party did. The underlying deal isn’t touched.
And the exception proves the rule, because it’s a timing rule. Minn. Stat. § 336.9-624:
(a) A debtor or secondary obligor may waive the right to notification of disposition of collateral under section 336.9-611 only by an agreement to that effect entered into and signed after default.
Same for waiving mandatory disposition, and same for redemption — with redemption waiver barred outright “[e]xcept in a consumer goods transaction.”
Minnesota isn’t saying these rights are too important to give up. It’s saying you can’t give them up before you know what you’re giving up. A waiver signed at closing, when default is hypothetical, is void. A waiver signed after default, when the debtor can see exactly what’s at stake, is valid. That’s a sensible theory of consent, and it runs through most of the chapter — see my Article 9 deficiency guide.
One clause in the same section breaks the pattern. The redemption waiver in § 336.9-624(c) is available “[e]xcept in a consumer goods transaction” — meaning that for consumer goods, redemption can’t be waived at any time, before or after default, however well the debtor understands the trade. That’s a judgment about a whole class of transaction. It has nothing to do with when consent is informed. Timing explains most of Article 9’s waiver rules. It doesn’t explain that one.
Exhibit C: construction, where Minnesota voids three clauses and cuts back a fourth
Chapter 337 is the bluntest tool in this survey.
- Minn. Stat. § 337.02 — an indemnification agreement in a building and construction contract “is unenforceable except to the extent that” the injury is attributable to the promisor’s own negligent or otherwise wrongful act or omission, “including breach of a specific contractual duty,” or where the indemnity concerns strict liability under environmental laws.
- Minn. Stat. § 337.05, subd. 1(b) — a provision requiring a party to insure another party “for the negligence or intentional acts or omissions” of that other party “is against public policy and is void and unenforceable.”
- Minn. Stat. § 337.10, subd. 1 — provisions making a contract to be performed in Minnesota “subject to the laws of another state or requiring that any litigation, arbitration, or other dispute resolution process on the contract occur in another state are void and unenforceable.”
- Minn. Stat. § 337.10, subd. 2 — provisions requiring a contractor, subcontractor, or material supplier “to waive the right to a mechanics lien or to a claim against a payment bond before the person has been paid” are void — though “not … as to any third party who detrimentally relies upon the waiver.”
Two of those four are about access: the forum clause, and the pre-payment waiver of lien rights and bond claims. The other two — indemnity and additional-insured coverage — are straight risk allocation. That’s Minnesota policing the deal itself, and it isn’t the only place in this survey where it does: the consumer-goods redemption rule in Exhibit B and the non-compete ban in Exhibit D do it too. Full treatment here.
Exhibit D: the short, absolute ones
Data breach. Minn. Stat. § 325E.61, subd. 3, headed “Waiver prohibited,” is one sentence: “Any waiver of the provisions of this section and section 13.055, subdivision 6, is contrary to public policy and is void and unenforceable.” Watch the cross-reference. The prohibition reaches the Government Data Practices Act’s breach provision too, which matters to any private company holding data under a government contract. See my breach notification guide.
Eviction. Minn. Stat. § 504B.365, subd. 5, addressing unlawful removal of a tenant’s property: “This section may not be waived or modified by lease or other agreement.”
Construction misclassification. Minn. Stat. § 181.723, subd. 7(c) makes it a violation to condition payment on an employee agreeing “to being classified, represented, or treated as an independent contractor or form a business entity,” or to “require or request an individual who is an employee pursuant to this section to enter into any agreement or complete any document that misclassifies, misrepresents, or treats the individual as an independent contractor” — with each agreement or document a separate violation. See my misclassification guide.
Non-competes. Minn. Stat. § 181.988 makes a covenant not to compete “void and unenforceable” for agreements entered into on or after July 1, 2023 — and subd. 3 separately forbids requiring an employee who primarily resides and works in Minnesota to litigate elsewhere or be deprived of Minnesota’s substantive protection as to a controversy arising here. See my non-compete guide.
When does Minnesota let you waive it, and what’s the price?
The counter-examples teach as much as the prohibitions, because every one of them comes with a condition.
| Waiver | Permitted? | The condition Minnesota attaches |
|---|---|---|
| UCC disposition notice, mandatory disposition, redemption | Yes | Only after default, in a signed agreement; redemption never in a consumer goods transaction |
| LLC duty of loyalty components, duty of care | Yes | Not manifestly unreasonable, and never authorizing intentional misconduct or knowing violation of law |
| LLC conduct that would violate the duty of loyalty | Yes | Authorized or ratified “by one or more disinterested and independent persons after full disclosure of all material facts” (§ 322C.0110, subd. 5) |
| Mechanic’s lien / payment bond claim | Yes | Only after payment — a pre-payment waiver is void between the parties (§ 337.10, subd. 2) |
| Homestead exemption, as to an attorney’s charge | Yes | Only “pursuant to a valid waiver” under § 481.13 (§ 510.05) |
The pattern holds every time I test it. Where Minnesota allows a waiver, it conditions the waiver on the person waiving actually being in a position to judge the trade — after default, after payment, after full disclosure, by disinterested persons, and never so far as to be manifestly unreasonable.
What I do with this when drafting
- Quit treating “the parties may agree otherwise” as the whole answer. Chapter 322C’s freedom is real, but subd. 3(6), (7), and (9) aren’t qualified by it. An operating agreement can’t vary the court’s dissolution power under clause (7) at all, however carefully it’s drafted, and it can’t unreasonably restrict information rights or the right to sue — which leaves room for a reasonable limit, and none for an unreasonable one.
- Get the order of your waivers right. Article 9’s rule is about timing. A notice waiver at closing is worthless. The same waiver after default is enforceable. Build your default-workout documents around that.
- Use the ratification route instead of the elimination route. Section 322C.0110, subd. 5 lets an operating agreement specify how an otherwise-disloyal transaction may be authorized or ratified by disinterested and independent persons after full disclosure. That gets you to the same business result, and it holds up under scrutiny a blanket elimination won’t survive.
- Strip unenforceable clauses out of your Minnesota forms. An out-of-state forum clause in a Minnesota construction contract, or an unconditional pre-payment lien waiver, doesn’t just fail. It invites a threshold fight you’ll lose, and it tells everyone nobody checked the rest of the form for Minnesota. When I see one, I assume nobody did. So does opposing counsel.
- Expect “manifestly unreasonable” to get litigated. It’s the only general fairness backstop in chapter 322C’s freedom provisions, and there’s no bright line.
If you’re on the receiving end of a form contract, flip the checklist. Look at the access provisions first, not the risk allocation. A clause that restricts your information rights, your ability to bring an action, or your forum is the clause most likely to be void. Look at when you signed it, because a waiver of a right you didn’t have yet, and couldn’t yet value, is exactly what several of these statutes are built to defeat. And don’t assume your signature ended the question. In more than one of these chapters, the signature is what the statute is aimed at.
Two ways to police a contract
A legislature has two ways to protect people from bad contracts. It can police the terms — decide some bargains are too one-sided to enforce. Or it can police the machinery — leave the bargain alone but guarantee that a party can find out what happened, get an accounting, and get to a courthouse.
Minnesota has mostly picked the second, and I think that’s the more restrained choice. The Legislature doesn’t have to decide what a fair indemnity or a fair valuation formula looks like. It only has to make sure nobody can contract out of the process that would expose an unfair one.
That’s why the clauses most likely to be void in a Minnesota contract are rarely the ones that look aggressive. They’re the quiet ones: the forum clause, the information limit, the advance waiver, the promise not to sue. They read like boilerplate. In Minnesota they’re the part of the document most likely not to exist.
At Madgett Law, LLC, I review and draft Minnesota commercial agreements with these limits in mind — operating agreements, construction contracts, security agreements, and the workout documents that come after — and I litigate the enforceability fights when someone tries to enforce a clause. If a provision is being enforced against you, the first question is whether Minnesota allows it at all. Send us a message or call 612-470-6529.
Sources: Minn. Stat. § 322C.0110 (operating agreement; scope, function, and limitations — subd. 1, matters the operating agreement governs; subd. 2, default rules; subd. 3, the eleven restrictions, including clause (4) on fiduciary duties subject to subdivisions 4 to 7, clause (6) on § 322C.0410 information rights, clause (7) on the court’s power to decree dissolution under § 322C.0701, subd. 1, clauses (4) and (5), and clause (9) on actions under §§ 322C.0901 to 322C.0906; subd. 4, provisions particularly but not exclusively authorized if not manifestly unreasonable, including alteration of the duty of care “except to authorize intentional misconduct or knowing violation of law”; subd. 5, authorization or ratification by disinterested and independent persons after full disclosure; subd. 6, elimination of duty where responsibility is eliminated); Minn. Stat. § 322C.0409 (standards of conduct for members, managers, and governors); Minn. Stat. § 336.9-602 (waiver and variance of rights and duties; the enumerated non-waivable provisions) and § 336.9-624 (waiver of disposition notification, mandatory disposition, and redemption only by agreement entered into and signed after default, and the consumer-goods limitation on redemption waiver); Minn. Stat. § 337.02 (unenforceability of certain indemnification agreements); § 337.05, subd. 1(b) (insurance for another party’s negligence or intentional acts void as against public policy); § 337.10, subds. 1 and 2 (out-of-state law and forum provisions void; pre-payment lien and bond-claim waivers void, subject to third-party detrimental reliance); Minn. Stat. § 325E.61, subd. 3 (waiver prohibited; any waiver of that section and of § 13.055, subd. 6, contrary to public policy and void and unenforceable); Minn. Stat. § 504B.365, subd. 5 (penalty; waiver not allowed); Minn. Stat. § 181.723, subd. 7(c) (prohibited activities related to independent contractor status; each agreement or document a separate violation); Minn. Stat. § 181.988 (covenants not to compete void and unenforceable, and the subd. 3 choice-of-law and venue provisions); Minn. Stat. § 510.05 (limitations on the homestead exemption, including a charge under § 481.13 pursuant to a valid waiver) (Minnesota Office of the Revisor of Statutes). This survey is not exhaustive; Minnesota contains anti-waiver provisions beyond those discussed here. Whether a particular clause is enforceable depends on the contract and the transaction. This article is general legal information about Minnesota law, not legal advice, and reading it does not create an attorney–client relationship. No outcome is promised or implied.