Agreeing to Disagree

Agreeing to Disagree
Author: Omri Ben-Shahar
Publisher:
Total Pages: 39
Release: 2004
Genre: Incomplete contracts
ISBN:

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Incomplete Contracts in a Complete Contract World

Incomplete Contracts in a Complete Contract World
Author: Scott Baker
Publisher:
Total Pages: 26
Release: 2014
Genre:
ISBN:

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This paper considers the role that contract doctrine should play in facilitating optimal investment in contractual relationships. All contracts are incomplete in the sense that they do not specify the optimal actions for the buyer and seller in every future contingency. This incompleteness can lead to both under and over-investment in resources specifically targeted to the needs of the other contracting party. To solve these investment problems, economists and legal scholars have looked to complicated contractual solutions and the ownership of assets. This Article offers another solution: contract doctrine. Specifically, we propose a contractual default rule applicable to all contract interpretation, gap-filling, and good faith inquiries (a relationship-specific investment, or RSI default) that accounts for the renegotiation position of contracting parties. Because contractual default rules form the backdrop against which parties renegotiate, the RSI default allocates bargaining power to one party or the other in much the same manner as does ownership. The RSI default favors the contracting party making an RSI, while at the same time minimizing potential problems of over-investment through a notice requirement. We also offer some preliminary thoughts on the problem of two-sided RSIs.

Penalty Default Rules in Insurance Law

Penalty Default Rules in Insurance Law
Author: Michelle Boardman
Publisher:
Total Pages: 0
Release: 2014
Genre:
ISBN:

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A default rule tells a court how to fill a gap in a contract. A penalty default tells a court to fill the gap in a way that is undesirable to at least one of the parties. The threat of a penalty default rules is meant to induce parties to reveal information, to each other or the courts, by contracting around the penalty. Since the concept was first introduced by Ian Ayres & Robert Gertner in Filling Gaps in Incomplete Contracts: An Economic Theory of Default Rules, 99 YALE L.J. 87 (1990), major scholars have argued over which rules, if any, might qualify. A prime candidate has been nominated but never elected. Contra proferentem, the doctrine that ambiguities in a contract should be construed against the drafter, is mentioned as a likely penalty default repeatedly, including in the original Ayres & Gertner article and in a major critique by Eric Posner in 2006. Surprisingly, despite the shared intuition that contra proferentem is a penalty default rule, this article is the first to seriously take it on. Insurance contra proferentem provides an unusual test case because it is actively conceived of by many courts as punitive, aimed at producing more information in the form of a redrafted contract clause. If contra proferentem is not a penalty default, prospects look dim for the rules' existence. The doctrine is predominately applied in the insurance context and I am the first insurance scholar to fully take the field. By scrutinizing the candidate, this article makes two contributions. To the study of contractual gaps, it proves there is at least one penalty default rule in the world, but one that does not operate in either of the two ways the existing literature envisions. This new category sharpens our understanding of the remaining defaults. To the interpretation of consumer contracts, and insurance contracts in particular, this article sounds a warning about the dangers of penalty default rules. Contra proferentem operates as a regrettable penalty default, and for reasons that hold for consumer contracts more broadly. In short, the rule does not consistently force the sophisticated party to better inform the consumer but it does exact consumer cost. In a non-trivial subset of cases, the rule widens the misunderstanding between contract drafter and consumer. There is a fundamental difficulty with information-forcing rules in insurance, at least to the extent the information is meant to be revealed to the policyholder and not the courts; the less informed party is tough to inform. In addition, the incentive to inform -- the incentive to escape the penalty -- is anemic when applied unilaterally to a class of drafters who are indifferent to a penalty as long as (a) it applies to its competitors equally and (b) the costs of the penalty are ultimately paid by the buyer. Conclusion: The nature of insurance interpretation makes contra proferentem and related doctrines excellent candidates for a penalty default rule, descriptively, and poor candidates for the rules normatively. Parallel problems can be expected if a penalty default is applied to boilerplate consumer contracts.

A Bargaining Power Theory of Gap-filling

A Bargaining Power Theory of Gap-filling
Author: Omri Ben-Shahar
Publisher:
Total Pages: 44
Release: 2008
Genre: Contracts
ISBN:

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This article explores the merits of a new criterion for default rules in incomplete contracts: fill the gaps with terms that are favorable to the party with the greater bargaining power. It argues that some of the more common gaps in contracts involve purely distributive issues, such as the contract price, for which it is impossible to choose a unique, jointmaximizing, 'most efficient' term. Rather, the term that mimics the hypothetical bargain in these settings must be sensitive to the bargaining power of the parties - the term they would have chosen to divide the surplus in light of their relative bargaining strength. The article explores the justifications for such a bargain-mimicking principle, the ways it can be implemented by courts, and the subtle ways it is already in place.

The Common Law of Contract and the Default Rule Project

The Common Law of Contract and the Default Rule Project
Author: Alan Schwartz
Publisher:
Total Pages: 61
Release: 2016
Genre:
ISBN:

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The common law developed over centuries a small set of default rules that courts have used to fill gaps in otherwise incomplete contracts between commercial parties. These rules can be applied almost independently of context: the market damages rule, for example, requires a court only to know the difference between market and contract prices. When parties in various sectors of the economy write sales contracts but leave terms blank, courts fill in the blanks with their own rules. As a consequence, a judicial rule that many parties accept must be “transcontextual”: parties in varied commercial contexts accept the courts' rule by writing contracts that contain just the gap the rule could fill. A long-standing project of academics and lawyers attempts to supplement common law contract rules with substantive default rules and default standards. This project has produced Article 2 of the UCC and the Second Restatement of Contracts and the project plans to produce more privately created contract law. We show that the “default rule project” could not create substantive default rules because the contract terms for which the rules would substitute commonly are context dependent: the terms' content either is a function of particular parties' circumstances or a particular trade's circumstances. Members of the default rule project, whom we call “drafters,” could not access the information needed to create the efficient rules that require such local knowledge. Instead, the drafters supplied commercial parties with default standards that courts can apply transcontextually in addition to or as replacements for the common law rules. Contracts sometimes do contain standards, but only when the standards are accompanied by substantive terms from which courts can infer the parties contracting goals and thus apply the standards to advance them. The drafters' decision to adopt unmoored standards was a mistake because commercial parties do not accept, and thus contract out of, the statutory and restatement default standards. In contrast, the common law's transcontextual default rules continue to stand. Our analysis here explains the default rule project's past failures and their current consequences: the article thus illuminates the contract law we have even as it cautions that the default rule project must materially change else it risk repeating past errors.

Foundations of Incomplete Contracts

Foundations of Incomplete Contracts
Author: Oliver D. Hart
Publisher:
Total Pages: 64
Release: 1998
Genre: Contracts
ISBN:

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In the last few years a new area has emerged in economic theory, which goes under the heading of However, almost since its inception, the theory has been under attack for its lack of rigorous foundations. In this paper, we evaluate some of the criticisms that have been made of the theory, in particular, those in Maskin and Tirole (1998a). In doing so, we develop a model that provides a rigorous foundation for the idea that contracts are incomplete.

Interpreting Investment Treaties as Incomplete Contracts

Interpreting Investment Treaties as Incomplete Contracts
Author: Wolfgang Alschner
Publisher:
Total Pages: 0
Release: 2013
Genre:
ISBN:

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Bilateral investment treaties (BITs) are incomplete contracts as contracting states leave contractual gaps inadvertently, necessarily or strategically open. When an investment dispute is brought to international arbitration, these gaps must be filled. Investment tribunals thus not only have a dispute settlement function, but are also gap-filling norm-setters. The degree to which this gap-filling role is exercise must depend, however, on the degree of contractual incompleteness. First generation BITs are highly incomplete contracts containing only brief and vague provisions delegating much of the gap-filling to tribunals. Second generation BITs, in contrast, are complex and comprehensive agreements. Their degree of incompleteness is considerably lower with contracting states employing a range of different gap-filling alternatives to courts such as comprehensive contracting or escape clauses all of which warrant judicial restraint and formalism. Second generation BITs can also assist arbitral gap-filling in first generation treaties. As tribunals lack the sophistication to either reach ex ante or ex post efficient norm-setting, they should defer to how contractual gaps are closed by the same contracting parties in second generation BITs rather than devising their own solution.

Incomplete Contracting and AI Alignment

Incomplete Contracting and AI Alignment
Author: Dylan Hadfield-Menell
Publisher:
Total Pages: 0
Release: 2018
Genre:
ISBN:

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We suggest that the analysis of incomplete contracting developed by law and economics researchers can provide a useful framework for understanding the AI alignment problem and help to generate a systematic approach to finding solutions. We first provide an overview of the incomplete contracting literature and explore parallels between this work and the problem of AI alignment. As we emphasize, misalignment between principal and agent is a core focus of economic analysis. We highlight some technical results from the economics literature on incomplete contracts that may provide insights for AI alignment researchers. Our core contribution, however, is to bring to bear an insight that economists have been urged to absorb from legal scholars and other behavioral scientists: the fact that human contracting is supported by substantial amounts of external structure, such as generally available institutions (culture, law) that can supply implied terms to fill the gaps in incomplete contracts. We propose a research agenda for AI alignment work that focuses on the problem of how to build AI that can replicate the human cognitive processes that connect individual incomplete contracts with this supporting external structure.