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Gershon v. Regency Diving Center, Inc., 368 N.J.Super. 237, 248, 845 A.2d 720 (App.Div.2004) stated that an exculpatory agreement is enforceable only if: (1) it does not adversely affect the public interest; (2) the exculpated party is not under a legal duty to perform; (3) it does not involve a public utility or common carrier; or (4) the contract does not grow out of unequal bargaining power or is otherwise unconscionable.[Id. at 454, 975 A.2d 494 (citing Gershon, supra, 368 N.J.Super. at 248, 845 A.2d 720).] 


As a general and long-standing matter, contracting parties are afforded the liberty to bind themselves as they see fit. See Twin City Pipe Line Co. v. Harding Glass Co., 283 U.S. 353, 356, 51 S.Ct. 476, 477, 75 L.Ed. 1112, 1116 (1931) ('The general rule is that competent persons shall have the utmost liberty of contracting and that their agreements voluntarily and fairly made shall be held valid and enforced in the courts.'). See generally 11 Williston on Contracts § 30:9, at 96 (Lord ed., 4d ed. 1999). Out of respect for that very basic freedom, courts are hesitant to interfere with purely private agreements. See, e.g.,

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