Econ 522Economics of Law

Dan Quint

Fall 2011

Lecture 12

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Reliance Investments which increase value of performance If this increases liability for breach overreliance If it doesn’t inefficient breach Paradox of compensation – unable to set both incentives efficiently Courts compensate only for foreseeable reliance

Default Rules Cooter and Ulen: supply rules which most parties would have wanted

(efficient rules) Ayres and Gertner: penalty defaults (penalize the parties for leaving a

gap, or penalize better-informed party)

Monday

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Regulations

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Default rules can be contracted around

Some rules cannot immutable rules, or mandatory rules, or regulations

Fifth purpose of contract law is to minimize transaction costs of negotiating contracts by supplying efficient default rules and regulations. Coase: if people are rational and there are no transaction costs, private

negotiations lead to efficiency So additional regulations/limitations can only make things worse But when people may not be rational, or when there are transaction

costs or market failures, then regulations may help

Default rules versus regulations

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Last week: “for efficiency, enforce any contract which both the promisor and the promisee wanted to be enforceable when it was signed”

Discussion question

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Obvious: contract to buy a kilo of cocaine is unenforceable

Less obvious: otherwise-legal contract whose real purpose is to circumvent a law Legal doctrine: derogation of public policy Derogate, verb. detract from; curtail application of (a law) Applies to contracts which could only be performed by breaking

law… …but also to “innocent” contracts whose purpose is to get around a

law or regulation

Example of a regulation/immutable rule: contracts which break the law

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Labor unions required by law to negotiate “in good faith”

Current NBA labor troubles Old CBA: 57% of “basketball-related income” went to player salaries Owners offering less than 50%, players demanding 53%... Imagine the following contract:

“For the next 50 years, if the NBAPAaccepts a CBA paying less than 55%of BRI in player salaries, then we alsoagree that all non-retired players will work for you as coal miners everyoffseason at federal minimum wage.”

Purpose is purely to “bind hands” innegotiations with ownership

Contract would not be enforced

Derogation of public policy – example

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In general: a contract is not enforceable if it cannot be performed without breaking the law

Exception: if promisor knew (and promisee didn’t) I’m married, my girlfriend in California doesn’t know; I promise her I’ll

marry her, she quits her job and moves to Madison My company agrees to supply a product that we can’t produce without

violating a safety or environmental regulation Keeping either promise would require breaking the law… …but I’d still be liable for damages for breach

Like in Ayres and Gertner: default rule penalizes better-informed party for withholding information

Derogation of public policy

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Ways to get outof a contract

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Formation defense Claim that a valid contract does not exist (Example: no consideration)

Performance excuse Yes, a valid contract was created But circumstances have changed and I should be allowed to not

perform without penalty

Most doctrines for invalidating a contract can be explained as either… Individuals agreeing to the contract were not rational, or Transaction cost or market failure

Formation Defenses and Performance Excuses

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Courts will not enforce contracts with peoplewho can’t be presumed to be rational Children Legally insane

Incompetence One party was “not

competent to enter intothe agreement”

No “meeting of the minds”

One formation defense: incompetence

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If courts won’t enforce a contract signed by someone who wasn’t competent…

What if you signed a contract while drunk? You need to have been really, really, really drunk to get out of a

contract (“Intoxicated to the extent of being unable to comprehend the

nature and consequences of the instrument he executed”) Lucy v. Zehmer, Virginia Sup Ct 1954

So…

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Zehmer and his wife owned a farm (“the Ferguson farm”), Lucy had been trying to buy it for some time

While out drinking, Lucy offers $50,000, Zehmer responds, “You don’t have $50,000”

“We hereby agree to sell to W.O. Lucy the Ferguson Farm complete for $50,00000, title satisfactory to buyer.”

Lucy v. Zehmer

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Zehmer and his wife owned a farm (“the Ferguson farm”), Lucy had been trying to buy it for some time

While out drinking, Lucy offers $50,000, Zehmer responds, “You don’t have $50,000”

“We hereby agree to sell to W.O. Lucy the Ferguson Farm complete for $50,00000, title satisfactory to buyer.”

Lucy v. Zehmer

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So, you can be pretty drunk and still be bound by the contract you signed Might think “meeting of the minds” would be impossible But imagine what would happen if the rule went the other way

Lucy v. Zehmer

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So, you can be pretty drunk and still be bound by the contract you signed Might think “meeting of the minds” would be impossible But imagine what would happen if the rule went the other way

Borat lawsuits Julie Hilden, “Borat Sequel: Legal Proceedings Against Not Kazahk

Journalist for Make Benefit Guileless Americans In Film”

Moral of the story: don’t get drunk with people who might ask you to sign a contract

Lucy v. Zehmer

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Another formation defense:dire constraints

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Necessity I’m about to starve, someone offers me a sandwich for $10,000 My boat’s about to sink, someone offers me a ride to shore for

$1,000,000 Contract would not be upheld: I signed it out of necessity

Duress Other party is responsible for situation I’m in “I made him an offer he couldn’t refuse” Contract signed at gunpoint would not be

legally enforceable

Dire constraints

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Example Mugger threatens to kill you unless you give him $100 You write him a check Do you have to honor the agreement?

“Efficiency requires enforcing a contract if both parties wanted it to be enforceable” He did – he wants your $100 You did – you’d rather pay $100 than be killed

So why not enforce it? Makes muggings more profitable leads to more muggings Tradeoff: refuse to enforce a Pareto-improving trade, in order to avoid

incentive for bad behavior

Friedman on duress

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Example Mugger threatens to kill you unless you give him $100 You write him a check Do you have to honor the agreement?

“Efficiency requires enforcing a contract if both parties wanted it to be enforceable” He did – he wants your $100 You did – you’d rather pay $100 than be killed

So why not enforce it? Makes muggings more profitable leads to more muggings Tradeoff: refuse to enforce a Pareto-improving trade, in order to avoid

incentive for bad behavior

Friedman on duress

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Same logic doesn’t work for necessity You get caught in a storm on your $10,000,000 sailboat Tugboat offers to tow you to shore for $9,000,000 (Otherwise he’ll save your life but let your boat sink)

Duress: if we enforce contract, incentive for more crimes Here: if we enforce contract, incentive for more tugboats to be available for

rescues – why is that bad? Social benefit of rescue: value of boat, minus cost of tow Say, $10,000,000 – $10,000 = $9,990,000 If tugboat gets entire value, his private gain = social gain So tugboat captain would invest the efficient amount in being available to

rescue you So what’s the problem?

What about necessity?

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What about your decision: whether to sail that day 1 in 1000 chance of being caught in a storm If so, 1 in 2 that a tugboat will rescue you Private cost of sailing: 1 in 2000 you lose boat, 1 in 2000 you pay tugboat

captain value of boat $10,000,000/2000 + $10,000,000/2000 = $10,000 So you’ll choose to sail if your value is above $10,000 Social cost: 1 in 2000 boat is lost, 1 in 2000 boat is rescued $10,000,000/2000 + $10,000/2000 = $5,005 Efficient to sail when your value is above $5,005 When your value from sailing is between $5,005 and $10,000, you

“undersail” If the price of being towed was just the marginal cost, your private cost =

social cost and you would sail the efficient amount

What about necessity?

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Same transaction sets incentives on both parties Price that would be efficient for one decision, is inefficient for other

“Put the incentive where it would do the most good” Least inefficient price is somewhere in the middle And probably not the price that would be negotiated in the middle of

a storm!

Friedman’s point

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Same transaction sets incentives on both parties Price that would be efficient for one decision, is inefficient for other

“Put the incentive where it would do the most good” Least inefficient price is somewhere in the middle And probably not the price that would be negotiated in the middle of a

storm! So makes sense for courts to overturn contracts signed under necessity,

replace them with ex-ante optimal terms

More general point Single price creates multiple incentives May be impossible to get efficient behavior in all dimensions

Friedman’s point

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Court won’t enforce contracts signed under threat of harm “Give me $100 or I’ll shoot you”

But many negotiations contain threats “Give me a raise, or I’ll quit” “$3,000 is my final offer for the car, take it or I walk”

The difference? Threat of destruction of value versus failure to create value A promise is enforceable if extracted as price of cooperating in

creating value; not if it was extracted by threat to destroy value

Real duress versus fake duress

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Captain hires crew in Seattle for fishing expedition to Alaska

In Alaska, crew demands higher wages or they’ll quit, captain agrees

Back in Seattle, captain refuses to pay the higher wages, claiming he agreed to them under duress

Court ruled for captain Since crew had already agreed to do the work, no new consideration was

given for promise of higher wage

Example: Alaska Packers’ Association v Domenico (US Ct App 1902)

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A performance excuse:impossibility

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When performance becomes impossible, should promisor owe damages, or be excused from performing?

A perfect contract would explicitly state who bears each risk

Contract may give clues as to how gaps should be filled

Industry custom might be clear

But in some cases, court must fill gap

Next doctrine for voiding a contract: impossibility

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In most situations, when neither contract nor industry norm offers guidance, promisor is held liable for breach

But there are exceptions Change “destroyed a basic assumption on which the contract was

made”

Next doctrine for voiding a contract: impossibility

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In most situations, when neither contract nor industry norm offers guidance, promisor is held liable for breach

But there are exceptions Change “destroyed a basic assumption on which the contract was

made”

Efficiency requires assigning liability to the party that can bear the risk at least cost How to determine who that is?

Next doctrine for voiding a contract: impossibility

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Friedman offers several bases for making this determination Spreading losses across many transactions Moral hazard: who is in better position to influence outcome?

Who is the efficient bearer of a particular risk?

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Friedman offers several bases for making this determination Spreading losses across many transactions Moral hazard: who is in better position to influence outcome? Adverse selection: who is more aware of risk, even if he can’t do

anything about it?

“…The party with control over some part of the production process is in a better position both to prevent losses and to predict them.

It follows that an efficient contract will usually assign the loss associated with something going wrong to the party with control over that particular something.”

Who is the efficient bearer of a particular risk?

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Suppose… 80% of millers are low-damage – suffer $100 in losses from delay 20% of millers are high-damage – suffer $200 in losses from delay

Shipper liable for actual damages Average miller would suffer $120 in losses Shipper makes efficient investment for average type But not efficient for either type

Shipper liable for foreseeable damages Shipper makes efficient investment for low-damage millers High-damage millers have strong incentive to negotiate around default

rule

Hadley v Baxendale

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First midterm

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Overall very good

Mean 82, median 85

Not assigning letter grades till end of semester, but… to give a rough idea of how you’re doing, based on distribution of scores on first midterm, 70-78 would probably be a BC, 78-88 would probably be a B

First Midterm

A-G N-ZH-M

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Contracts based onbad information

(probably won’t get to)

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Four doctrines for invalidating a contract based on faulty information Fraud Failure to disclose Frustration of purpose Mutual mistake

Misinformation

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Fraud violates “negative duty” not to misinform

In some circumstances, positive duty to disclose certain information Civil law: contract may be voided if you did not supply information

you should have (“failure to disclose”) Common law: seller is not forced to disclose everything he knows

Must warn about hidden dangers Need not share information that makes product less valuable but not

dangerous But, new products come with “implied warranty of fitness”

Fraud and Failure to Disclose

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Sellers must inform buyers about hidden safety risks

Common law does not generally require disclosure of other types of information

But… Obde v Schlemeyer (1960) Seller knew building was infested with termites, did not tell buyer Termites should have been exterminated immediately to prevent

further damage Court in Obde imposed duty to disclose

More on duty to disclose

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Sellers must inform buyers about hidden safety risks

Common law does not generally require disclosure of other types of information

But… Obde v Schlemeyer (1960) Seller knew building was infested with termites, did not tell buyer Termites should have been exterminated immediately to prevent

further damage Court in Obde imposed duty to disclose Many states require used car dealers to reveal major repairs done,

sellers of homes to reveal certain types of defects…

More on duty to disclose

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Both parties based a contract on the same bad information contract may be voided due to frustration of purpose

Coronation Cases Rooms rented out with view of new king’s coronation parade Parade was postponed, owners still tried to collect rent Courts ruled change in circumstance had frustrated the purpose of

the original contracts, which were therefore void

“When a contingency makes performance pointless, assign liability to the party who can bear the risk at least cost”

Frustration of Purpose

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Frustration of purpose: circumstances changed after the contract was signed

Mutual mistake: circumstances changed before the contract was signed, but the parties didn’t know about it

Enforcing the contract would be like forcing involuntary exchange Coase: we expect voluntary exchange to be efficient But involuntary exchange may not be

Mutual Mistake

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Hadley v Baxendale (miller and shipper) Hadley knew shipment was time-critical But Baxendale was deciding how to ship crankshaft (boat or train)

A general principle about information: efficiency generally requires uniting knowledge and control Contracts that unite knowledge and control are generally efficient,

should be upheld Contracts that separate knowledge and control may be inefficient,

should more often be set aside

Another principle: knowledge and control

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Mutual mistake: neither party had correct information Contract neither united nor separated knowledge and control

Unilateral mistake: one party has mistaken information I know your car is a valuable antique, you think it’s worthless You sell it to me at a low price

Contracts based on unilateral mistake are generally upheld

Unilateral mistake

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Mutual mistake: neither party had correct information Contract neither united nor separated knowledge and control

Unilateral mistake: one party has mistaken information I know your car is a valuable antique, you think it’s worthless You sell it to me at a low price

Contracts based on unilateral mistake are generally upheld Contracts based on unilateral mistake generally unite knowledge and

control And this creates an incentive to gather information

Unilateral mistake

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War of 1812: British blockaded port of New Orleans Price of tobacco fell, since it couldn’t be exported

Organ (tobacco buyer) learned the war was over Immediately negotiated with Laidlaw firm to buy a bunch of tobacco

at the depressed wartime price

Next day, news broke the war had ended, price of tobacco went up, Laidlaw sued Supreme Court ruled that Organ was not required to communicate

his information

Unilateral mistake: Laidlaw v Organ (U.S. Supreme Court, 1815)

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Productive information: information that can be used to produce more wealth

Redistributive information: information that can be used to redistribute wealth in favor of informed party

Cooter and Ulen Contracts based on one party’s knowledge of productive information

should be enforced… …especially if that knowledge was the result of active investment Contracts based on one party’s knowledge of purely redistributive

information, or fortuitously acquired information, should not be enforced

Unilateral mistake: productive versus redistributive information