Econ 522 Economics of Law

1. Econ 522Economics of Law Dan Quint Fall 2010 Lecture 10

2. Logistics • Midterm on Wednesday • Office hours tomorrow (Soc Sci 7428) 1:30-3:30 p.m.

3. Last week… • Finished property law • Began to motivate contract law • Why do we need contracts? • To get cooperation/trade when transactions aren’t instantaneous • Examples: buying a plane ticket; painting someone’s house; investment opportunity

4. Example: I have an investment opportunity, you have money You Me Without binding contracts With enforceable contracts Trust me Don’t (0, 0) Keep the money Share the money (-100, 200) (50, 50) You Me Trust me Don’t (0, 0) Keep the money Share the money (25, 25) (50, 50)

5. So… what types of promises should be enforced by the law? • “The rich uncle of a struggling college student learns at the graduation party that his nephew graduated with honors. Swept away by good feeling, the uncle promises the nephew a trip around the world. Later the uncle reneges on his promise. The student sues his uncle, asking the court to compel the uncle to pay for a trip around the world.” • “One neighbor offers to sell a used car to another for $1000. The buyer gives the money to the seller, and the seller gives the car keys to the buyer. To her great surprise, the buyer discovers that the keys fit the rusting Chevrolet in the back yard, not the shiny Cadillac in the driveway. The seller is equally surprised to learn that the buyer expected the Cadillac. The buyer asks the court to order the seller to turn over the Cadillac.” • “A farmer, in response to a magazine ad for “a sure means to kill grasshoppers,” mails $25 and receives in the mail two wooden blocks with the instructions, “Place grasshopper on Block A and smash with Block B.” The buyer asks the court to require the seller to return the $25 and pay $500 in punitive damages.”

6. The Bargain Theoryof Contracts

7. The bargain theory of contracts • Developed in the late 1800s/early 1900s • A promise should be enforced if it was given as part of a bargain, otherwise it should not • Bargains were taken to have three elements • Offer • Acceptance • Consideration

8. What is consideration? • Promisor: person who gives a promise • Promisee: person who receives it • In a bargain, both sides must give up something • reciprocal inducement • Consideration is what the promisee gives to the promisor, in exchange for the promise • Under the bargain theory, a contract becomes enforceable once consideration is given

9. What is consideration? • Promisor: person who gives a promise • Promisee: person who receives it • In a bargain, both sides must give up something • reciprocal inducement • Consideration is what the promisee gives to the promisor, in exchange for the promise • Under the bargain theory, a contract becomes enforceable once consideration is given

10. The bargain theory does not distinguish between fair and unfair bargains • Hamer v Sidway (NY Appeals Ct, 1891) • Uncle offered nephew $5,000 to give up drinking and smoking until his 21st birthday, then refused to pay “The promisee [previously] used tobacco, occasionally drank liquor, and he had a legal right to do so. That right he abandoned for a period of years upon the strength of the promise… We need not speculate on the effort which may have been required to give up the use of these stimulants. It is sufficient that he restricted his lawful freedom of action within certain prescribed limits upon the faith of his uncle’s agreement, and now, having fully performed the conditions imposed, it is of no moment whether such performance actually proved a benefit to the promisor, and the court will not inquire into it.”

11. Under the bargain theory, what is the remedy? • Expectation damages • the amount of benefit the promisee could reasonably expect from performance of the promise • meant to make the promisee as well of as he would have been, had the promise been fulfilled

12. Problems with the bargain theory • Not that accurate a description of what modern courts actually do • Not always efficient • Does not enforce certain promises that both promisor and promisee might have wanted to be enforceable

13. Problems with the bargain theory • Not that accurate a description of what modern courts actually do • Not always efficient • Does not enforce certain promises that both promisor and promisee might have wanted to be enforceable • Does enforce certain promises that maybe should not be enforced

14. What does efficiency say about what promises should be enforced?

15. What promises should be enforced? • In general, efficiency requires enforcing a promise if both the promisor and the promisee wanted it to be enforceable when it was made • different from wanting it to actually be enforced

16. What promises should be enforced? • In general, efficiency requires enforcing a promise if both the promisor and the promisee wanted it to be enforceable when it was made • different from wanting it to actually be enforced • The first purpose of contract law is to enable people to cooperate by converting games with noncooperative solutions into games with cooperative solutions • or, enable people to convert games with inefficient equilibria into games with efficient equilibria

17. What promises should be enforced? • In general, efficiency requires enforcing a promise if both the promisor and the promisee wanted it to be enforceable when it was made • different from wanting it to actually be enforced • The first purpose of contract law is to enable people to cooperate by converting games with noncooperative solutions into games with cooperative solutions • or, enable people to convert games with inefficient equilibria into games with efficient equilibria

18. So now we know… • What promises should be enforceable? • For efficiency: enforce those which both promisor and promisee wanted to be enforceable when they were made • One purpose of contract law • Enable cooperation by changing a game to have a cooperative solution • Contract law can serve a number of other purposes as well

19. Information • Private/asymmetric information can hinder trade • Car example (George Akerloff, “The Market for Lemons”)

20. Information • Private/asymmetric information can hinder trade • Car example (George Akerloff, “The Market for Lemons”)

21. Information • Private/asymmetric information can hinder trade • Car example (George Akerloff, “The Market for Lemons”) • Contract law could help • You could offer me a legally binding warranty • Or, contract law could impose on you an obligation to tell me what you know about the condition of the car • Forcing you to share information is efficient, since it makes us more likely to trade • The second purpose of contract law is to encourage the efficient disclosure of information within the contractual relationship.

22. Breach

23. So… • A contract is just a promise • The idea here is that we want some promises to be legally binding • This means there has to be some legal consequence for breaking such a promise • Breach of contract is when the promisor fails to live up to his promise • Just like property rights are meaningless unless there is a remedy when they are violated… • …contract law is meaningless unless there is a penalty for breach • So, what happens when a contract is breached?

24. Why does the penalty for breach matter? • If penalty is too weak, contract law has no bite, and we’re back to our original problem • But sometimes, circumstances change, and breach of contract becomes desirable • Example: I promise to sell you a painting

25. Why does the penalty for breach matter? • If penalty is too weak, contract law has no bite, and we’re back to our original problem • But sometimes, circumstances change, and breach of contract becomes desirable • Example: I promise to sell you a painting • Example: I promise to build you a plane • If penalty for breach is too severe, I’ll have to honor these promises even when this is inefficient • Can we design the law so that we only get breach of contract when it’s efficient?

26. When is breach efficient? • Breach is efficient if social benefit of breach > social cost of breach • Social cost of breach is that promisee doesn’t get the benefit from the promise • Social benefit of breach is that promisor doesn’t have to incur the cost of delivering (performing) • So breach is efficient if promisor’s cost to perform > promisee’s benefit from performance

27. Efficient Breach Efficiency: > Promisor’sCost Promisee’sBenefit Efficient to Breach  < Promisor’sCost Promisee’sBenefit Efficient to Perform 

28. When do we expect breach to happen? • Promisor weighs private cost of performance vs breach • Whatever the penalty for breach, if it’s cheaper to perform, promisor will perform; if it’s cheaper to breach, he’ll breach • That is, we expect breach to occur whenever promisor’s cost to perform > penalty for breach

29. Efficient Breach Efficiency: > Promisor’sCost Promisee’sBenefit Efficient to Breach  < Promisor’sCost Promisee’sBenefit Efficient to Perform  What will actually happen (incentives of promisor): > Promisor’sCost Promisor’s Liability Promisor will Breach  < Promisor’sCost Promisor’sLiability Promisor will Perform 

30. So how do we get efficient breach? Efficiency: > Promisor’sCost Promisee’sBenefit Efficient to Breach  What will actually happen (incentives of promisor): > Promisor’sCost Promisor’s Liability Promisor will Breach  So if we design the law such that = Promisor’sLiabilityfor Breach Promisee’sBenefit fromPerformance the promisor will breach exactly when breach is efficient

31. Efficient breach • When liability from breach = promisee’s benefit from performance, we get breach exactly when it’s efficient • So for efficiency, when a promisor breaches a contract, we want him to owe a penalty exactly equal to the benefit the promisee expected to receive • This is called expectation damages • Expectation damages: if I promise you something that has value of $100 to you, and then I break my promise, I owe you $100 • This way, • if it costs me more than $100 to keep my promise, I’ll break it, which is efficient • if it costs me less than $100 to keep my promise, I’ll keep it, which is efficient

32. Value to you = $500,000 Price = $350,000 Example of efficient breach • I build airplanes • You value one of my planes at $500,000 • You agree to buy one for $350,000, and pay up front • After you pay, price of materials goes up

33. Value to you = $500,000 Price = $350,000 Example of efficient breach > Promisor’sCost Promisee’sBenefit Efficient to Breach  • Promisee’s benefit = $500,000 • If it costs me less than $500,000 to build plane, efficient to build it • If it costs me more than $500,000, efficient to breach

34. Value to you = $500,000 Price = $350,000 Example of efficient breach > Promisor’sCost Promisor’sLiability Promisor will Breach  • Liability is just to return your money • If my costs rise to $400,000, performance is still efficient, but I’ll choose to breach • Liability is $1,000,000 • If costs rise to $700,000, performance is inefficient, but I’d rather perform than breach • Liability = promisee’s benefit ($500,000) • I’ll perform when performance is efficient, breach when breach is efficient

35. Value to you = $500,000 Price = $350,000 But so what? Can’t we just“Coase” back to efficiency? • Liability is $350,000, my costs rise to $400,000 • I’ll breach original contract, but we can renegotiate to higher price • But I might try to do that even if my costs don’t go up… • Liability is $1,000,000, my costs rise to $700,000 • Rather than performing, I can offer you money to let me cancel contract • But my threat point is very low – you can demand a lot of money • If I realize that might happen, maybe I’m afraid to sign original contract • Expectation damages avoid these problems

36. Another way to think about expectation damages: eliminating an externality • If I breach contract, I impose externality on you • You’re $500,000 worse off • If I have to pay you $500,000, then I internalize the externality • Now my action no longer affects your well-being • (You get a payoff of $500,000 if I build the plane, and a benefit of $500,000 if I don’t.) • So I choose efficiently when deciding whether to perform or breach

37. Reliance(plan to end here)

38. Reliance • Reliance – investments made by promisee, to increase the value of performance • The fourth purpose of contract law is to secure optimal reliance

39. When is reliance efficient? • When social benefit of reliance > social cost of reliance • Social benefit is increased benefit to promisee when promise is performed • Social cost is cost borne by promisee, whether or not promise is performed • So reliance is efficient as long as(probability of performance) X (increase in value) > (cost)

40. Efficient reliance • Efficiency: reliance is efficient as long as(probability of performance) X (increase in value) > (cost) • We said expectation damages = expected benefit from performance • Should expectation damages include increase in benefit due to reliance? • If yes: promisee will rely as long as (increase in value) > (cost) • So if yes, promisee will overrely • (Another way to think about this: there’s some chance I’ll have to breach • If your reliance increases my liability, then it increases the expected damages I’ll owe, which makes me worse off • If your reliance imposes a negative externality, you’ll do it more than the efficient amount)

41. Reliance and Damages: example • Reliance increases your benefit from my promise • Airplane gives you benefit of $500,000 • Costs $75,000 to build a hangar • Airplane with hangar gives you benefit of $600,000 • Suppose price is $350,000, to be paid on delivery • Expectation damages restore you to well-being you expected to have from performance • Without a hangar, if I breach, I owe you $150,000 • If you build a hangar and I breach, do I owe you $250,000?

42. Price of plane = $350,000 Value of plane = $500,000Cost of hangar = $75,000Value of plane + hangar = $600,000 Reliance and damages:example • Cost of building plane: maybe $250,000, maybe $700,000 • Clearly, you’ll choose to build the hangar • But, is that efficient? You build hangar You don’t You get I get You get I get Costsstay low 600 - 75 - 350 = 175 350 - 250 =100 500 - 350 =150 350 - 250 =100 Costsrise - 75 + 250 =175 -250 150 -150

43. Price of plane = $350,000 Value of plane = $500,000Cost of hangar = $75,000Value of plane + hangar = $600,000 Reliance and damages:example • Let p be probability my costs go up • Combined expected payoffs if you rely: (1 – p) (175 + 100) + p (175 – 250) = 275 (1 – p) – 75 p = 275 – 350 p • Combined expected payoffs if you don’t rely: (1 – p) (150 + 100) + p (150 – 150) = 250 (1 – p) = 250 – 250 p • Which is bigger? 275 – 350 p > 250 – 250 p « 25 > 100 p « p < ¼ • So if p < ¼, reliance is efficient; if p > ¼, it’s not • But you’re going to rely either way!

44. What do we learn? • When probability of breach is low, more reliance tends to be efficient • When probability of breach is high, less reliance tends to be efficient • If expectation damages include increased benefit from reliance, we sometimes get overreliance • (OTOH, if expectation damages exclude increased benefit from reliance, liability < benefit, so inefficient breach)

45. So what do we do? • Cooter and Ulen: include only efficient reliance • Perfect expectation damages: restore promisee to level of well-being he would have gotten from performance if he had relied the efficient amount • So promisee rewarded for efficient reliance, not for overreliance

46. So what do we do? • Cooter and Ulen: include only efficient reliance • Perfect expectation damages: restore promisee to level of well-being he would have gotten from performance if he had relied the efficient amount • So promisee rewarded for efficient reliance, not for overreliance • Actual courts: include only foreseeable reliance • That is, if promisor could reasonably expect promisee to rely that much

47. Foreseeable reliance: Hadley v Baxendale • 1850s England • Hadley owned gristmill, mill shaft broke • Baxendale’s firm hired to transport shaft for repair • Baxendale shipped by boat instead of train, making it a week late • Hadley sued for the week’s lost profits • “The shipper assumed that Hadley, like most millers, kept a spare shaft. …Hadley did not inform him of the special urgency in getting the shaft repaired.” • Court listed several circumstances where broken shaft would not force mill to shut down • Ruled lost profits not foreseeable  Baxendale didn’t have to pay

48. Up next • Default rules • What principles should we use to address contingencies not considered in a contract? • Paper by Ayres and Gertner on syllabus