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Contracts as Bilateral Commitments: A New Perspective on Contract Modification

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  • Jolls, Christine

Abstract

Contracts have traditionally been regarded as means of individual commitment. This article offers a broader vision, viewing contracts as potential means of bilateral commitment as well. Drawing on a burgeoning literature in economics, this article explains that commitment to stick with an original contract, even if both parties later want to modify that contract, may improve contractors' welfare. It provides examples from contracts cases of situations in which such bilateral commitment may be beneficial, and it suggests ways in which contract law might better facilitate such commitment. The primary suggestion for facilitating bilateral commitment is that parties-at least sophisticated ones-be permitted to enter into nonmodifiable contracts, which they cannot do under existing law. Permitting parties to write nonmodifiable contracts would enhance contractors' welfare in the settings examined in this article and would not interfere with other normative goals of contract law. Copyright 1997 by the University of Chicago.

Suggested Citation

  • Jolls, Christine, 1997. "Contracts as Bilateral Commitments: A New Perspective on Contract Modification," The Journal of Legal Studies, University of Chicago Press, vol. 26(1), pages 203-237, January.
  • Handle: RePEc:ucp:jlstud:v:26:y:1997:i:1:p:203-37
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    File URL: http://dx.doi.org/10.1086/467993
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    Cited by:

    1. Athias, Laure & Saussier, Stéphane, 2007. "Contractual flexibility or rigidity for public private partnerships? Theory and evidence from infrastructure concession contracts," MPRA Paper 10541, University Library of Munich, Germany.
    2. Evelyn Korn & Stephan Meisenzahl, 2009. "Contracting still matters! Or: How to design a letter of intent," MAGKS Papers on Economics 200909, Philipps-Universität Marburg, Faculty of Business Administration and Economics, Department of Economics (Volkswirtschaftliche Abteilung).
    3. B. Boockmann & Paul Thurner, 2006. "Flexibility provisions in multilateral environmental treaties," International Environmental Agreements: Politics, Law and Economics, Springer, vol. 6(2), pages 113-135, June.
    4. Oliver Hart & John Moore, 2004. "Agreeing Now to Agree Later: Contracts that Rule Out but do not Rule In," ESE Discussion Papers 109, Edinburgh School of Economics, University of Edinburgh.
    5. Alan Schwartz & Joel Watson, "undated". "The Law and Economics of Costly Contracting," Yale Law School John M. Olin Center for Studies in Law, Economics, and Public Policy Working Paper Series yale_lepp-1004, Yale Law School John M. Olin Center for Studies in Law, Economics, and Public Policy.
    6. Oliver Hart & John Moore, 2006. "Contracts as Reference Points," ESE Discussion Papers 170, Edinburgh School of Economics, University of Edinburgh.
    7. Christine Jolls, 2007. "Behavioral Law and Economics," NBER Working Papers 12879, National Bureau of Economic Research, Inc.
    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. Oren Bar-Gill & Omri Ben-Shahar, 2004. "The Law of Duress and the Economics of Credible Threats," The Journal of Legal Studies, University of Chicago Press, vol. 33(2), pages 391-430, June.
    10. Patrick W. Schmitz, 2005. "Should Contractual Clauses that Forbid Renegotiation Always be Enforced?," Journal of Law, Economics, and Organization, Oxford University Press, vol. 21(2), pages 315-329, October.
    11. Renaud Bellais & Martial Foucault & Jean-Michel Oudot, 2014. "Économie de la défense," Université Paris1 Panthéon-Sorbonne (Post-Print and Working Papers) hal-01052607, HAL.
    12. Alan Schwartz & Joel Watson, 2000. "Economic and Legal Aspects of Costly Recontracting," Yale School of Management Working Papers ysm143, Yale School of Management, revised 01 Jan 2001.
    13. Miceli, Thomas J., 2002. ""Over a barrel": contract modification, reliance, and bankruptcy," International Review of Law and Economics, Elsevier, vol. 22(1), pages 41-51, July.
    14. Steven Shavell, 2005. "Contracts, Holdup, and Legal Intervention," NBER Working Papers 11284, National Bureau of Economic Research, Inc.
    15. Camille Chaserant, 2007. "Les fondements incomplets de l’incomplétude. Une revue critique de la théorie des contrats incomplets," Université Paris1 Panthéon-Sorbonne (Post-Print and Working Papers) halshs-01297143, HAL.
    16. Ian Smith, 2003. "The Law and Economics of Marriage Contracts," Journal of Economic Surveys, Wiley Blackwell, vol. 17(2), pages 201-226, April.
    17. Simon Schropp, 2007. "Revisiting the "Compliance-vs.-Rebalancing" Debate in WTO Scholarship a Unified Research Agenda," IHEID Working Papers 29-2007, Economics Section, The Graduate Institute of International Studies, revised Dec 2007.
    18. 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.
    19. Patrick W. Schmitz, 2005. "Should Contractual Clauses that Forbid Renegotiation Always be Enforced?," Journal of Law, Economics, and Organization, Oxford University Press, vol. 21(2), pages 315-329, October.
    20. Steven Shavell, 2003. "Economic Analysis of Contract Law," NBER Working Papers 9696, National Bureau of Economic Research, Inc.
    21. Chaserant, Camille, 2007. "Les fondements incomplets de l’incomplétude : Une revue critique de la théorie des contrats incomplets," L'Actualité Economique, Société Canadienne de Science Economique, vol. 83(2), pages 227-253, juin.

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