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Incomplete Contracts

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  • Alan Schwartz

    ()
    (Law School)

Abstract

Parties to lending agreements can create priority rankings in two ways: by securing a lender or by protecting the lender's debt with financial covenants. Protected debt turns into high priority debt because the early lender will permit covenant violations only if a later lender agrees to subordinate its claim. The Bankruptcy Code sustains both forms of priority by according secured debt senior status and by enforcing subordination agreements among creditors. The latter priority is not controversial but several recent reform proposals would reduce the secured lender's priority. This article argues that creditors who lend early in a firm's life are concerned about debt dilution, which can occur even when all of the borrower's later projects have positive values. It then shows that the equilibrium financial contract for private debt has strong borrowers protecting the early debt with financial covenants, and it suggests that weak borrowers protect the early debt with security. Thus security and financial covenants may be substitutes. "Covenant equilibria" are argued to be efficient. That these equilibria closely resemble "security equilibria," and that arguments for the inefficiency of the secured lender's priority are weak, both argue that the Bankruptcy Code's current respect for both forms of priority should continue. The article also argues that financial covenants should be made binding on later lenders whose advances would cause covenant violations.

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Bibliographic Info

Paper provided by Yale School of Management in its series Yale School of Management Working Papers with number ysm73.

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Date of creation: 21 Jul 1997
Date of revision:
Handle: RePEc:ysm:somwrk:ysm73

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Web page: http://icf.som.yale.edu/
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Cited by:
  1. Fares, M’hand, 2005. "Quels fondements à l’incomplétude des contrats?," L'Actualité Economique, Société Canadienne de Science Economique, vol. 81(3), pages 535-555, Septembre.
  2. Howard Beales, J. III & Muris, Timothy J., 1995. "The foundations of franchise regulation: Issues and evidence," Journal of Corporate Finance, Elsevier, vol. 2(1-2), pages 157-197, October.
  3. Lewis Evans & Graeme Guthrie & Neil Quigley, 2012. "Contemporary Microeconomic Foundations for the Structure and Management of the Public Sector," Treasury Working Paper Series 12/01, New Zealand Treasury.
  4. Arnoud W.A. Boot & Anjan V. Thakor, 2003. "The Economic Value of Flexibility when there is Disagreement," Tinbergen Institute Discussion Papers 03-002/2, Tinbergen Institute.
  5. SALMON, Pierre & BRETON, Albert, 2005. "Bijural services as factors of production," LEG - Document de travail - Economie 2005-01, LEG, Laboratoire d'Economie et de Gestion, CNRS, Université de Bourgogne.
  6. Axel GAUTIER & Dimitri PAOLINI, 2001. "Delegation and Organizational Design," Discussion Papers (IRES - Institut de Recherches Economiques et Sociales) 2001026, Université catholique de Louvain, Institut de Recherches Economiques et Sociales (IRES).
  7. Baliga, Sandeep & Sjostrom, Tomas, 1999. "Interactive Implementation," Games and Economic Behavior, Elsevier, vol. 27(1), pages 38-63, April.
  8. Alan Schwartz, 2004. "The Law and Economics of Costly Contracting," Journal of Law, Economics and Organization, Oxford University Press, vol. 20(1), pages 2-31, April.
  9. Benito Arruñada & Veneta Andonova, 2004. "Judges' cognition and market order," Economics Working Papers 768, Department of Economics and Business, Universitat Pompeu Fabra, revised Jan 2008.
  10. Maze, Armelle, 2006. "Multilateral reputation mechanisms and contract law in agriculture : complement or substitutes," 2006 Annual meeting, July 23-26, Long Beach, CA 21285, American Agricultural Economics Association (New Name 2008: Agricultural and Applied Economics Association).
  11. Armelle Mazé, 2005. "Contract Law and the self-enforcing range of contracts in agriculture," Université Paris1 Panthéon-Sorbonne (Post-Print and Working Papers) halshs-00354960, HAL.
  12. Schmitz, Patrick W., 2010. "On contractual solutions to hold-up problems with quality uncertainty and unobservable investments," MPRA Paper 23157, University Library of Munich, Germany.
  13. Schwartz, Alan & Watson, Joel, 2001. "The Law and Economics of Costly Contracting," University of California at San Diego, Economics Working Paper Series qt2wh8m7bv, Department of Economics, UC San Diego.
  14. Stéphane Saussier, 2000. "Coûts de transaction et choix contractuels : un test économétrique sur une entreprise publique," Économie et Prévision, Programme National Persée, vol. 145(4), pages 169-180.
  15. Schmitz, Patrick W., 2009. "Contractual solutions to hold-up problems with quality uncertainty and unobservable investments," CEPR Discussion Papers 7584, C.E.P.R. Discussion Papers.
  16. Michel Renault & Yvan Renou, 2007. "Processus d'individuation, éthique et pragmatisme. A la recherche de fondements théoriques pour appréhender la firme partenariale," Post-Print halshs-00202148, HAL.
  17. Josef Windsperger, 2002. "The Structure of Ownership Rights in Franchising: An Incomplete Contracting View," European Journal of Law and Economics, Springer, vol. 13(2), pages 129-142, March.

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