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Contract Theory and the Limits of Contract Law

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  • Alan Schwartz

    (Yale Law School)

  • Robert Scott

    (Yale School of Management)

Abstract

Contract law has neither a complete descriptive theory, explaining what the law is, nor a complete normative theory, explaining what the law should be. These gaps are unsurprising given the traditional definition of contract as embracing all promises that the law will enforce. Even a theory of contract law that focuses only on the enforcement of bargains must still consider the entire continuum from standard form contracts between firms and consumers to commercial contracts between business firms. No descriptive theory has yet explained a law of contract that comprehends such a broad domain. Normative theories that are grounded in a single norm -- such as autonomy or efficiency -- also have foundered over the heterogeneity of contractual contexts to which the theory is to apply. Pluralist theories attempt to respond to the difficulty that unitary normative theories pose by urging courts to pursue efficiency, fairness, good faith and the protection of individual autonomy. Such theories need, but so far lack, a meta principle that tells which of these goals should be decisive when they conflict. We attempt to make progress here with a more modest approach -- to set out and defend a normative theory to guide decisionmakers in the regulation of business contracts.

Suggested Citation

  • Alan Schwartz & Robert Scott, "undated". "Contract Theory and the Limits of Contract Law," Yale Law School John M. Olin Center for Studies in Law, Economics, and Public Policy Working Paper Series yale_lepp-1011, Yale Law School John M. Olin Center for Studies in Law, Economics, and Public Policy.
  • Handle: RePEc:bep:yaloln:yale_lepp-1011
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    File URL: http://lsr.nellco.org/cgi/viewcontent.cgi?article=1011&context=yale/lepp
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    References listed on IDEAS

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    1. Alan Schwartz, 1997. "Incomplete Contracts," Yale School of Management Working Papers ysm73, Yale School of Management.
    2. Schmitz, Patrick W, 2001. "The Hold-up Problem and Incomplete Contracts: A Survey of Recent Topics in Contract Theory," Bulletin of Economic Research, Wiley Blackwell, vol. 53(1), pages 1-17, January.
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    Cited by:

    1. Wu, Steven Y., 2006. "Contract theory and agricultural policy analysis: a discussion and survey of recent developments," Australian Journal of Agricultural and Resource Economics, Australian Agricultural and Resource Economics Society, vol. 50(4), December.
    2. José De Sousa & Xavier Fairise, 2009. "Do we need handshakes to cooperate in buyer-supplier relationships?," Documents de recherche 09-15, Centre d'Études des Politiques Économiques (EPEE), Université d'Evry Val d'Essonne.
    3. Nicola Gennaioli & Enrico Perotti, 2009. "Standardized enforcement: Access to justice vs contractual innovation," Economics Working Papers 1329, Department of Economics and Business, Universitat Pompeu Fabra, revised Jun 2012.
    4. Anderlini Luca & Felli Leonardo & Postlewaite Andrew, 2011. "Should Courts Always Enforce What Contracting Parties Write?," Review of Law & Economics, De Gruyter, vol. 7(1), pages 14-28, February.
    5. Bernhard Ganglmair, 2008. "Breakup of Repeat Transaction Contracts, Specific Investment, and Efficient Rent-Seeking," JEPS Working Papers 08-001, JEPS.
    6. Altmann, Steffen & Falk, Armin & Grunewald, Andreas, 2013. "Incentives and Information as Driving Forces of Default Effects," IZA Discussion Papers 7610, Institute for the Study of Labor (IZA).
    7. Manuel Willington, 2013. "Hold Up Under Costly Litigation and Imperfect Courts of Law," Journal of Law, Economics, and Organization, Oxford University Press, vol. 29(5), pages 1023-1055, October.
    8. Schmitz, Patrick W., 2010. "Contractual solutions to hold-up problems with quality uncertainty and unobservable investments," Journal of Mathematical Economics, Elsevier, vol. 46(5), pages 807-816, September.
    9. Mouzas, Stefanos & Ford, David, 2006. "Managing relationships in showery weather: The role of umbrella agreements," Journal of Business Research, Elsevier, vol. 59(12), pages 1248-1256, November.
    10. Lau, M. W., 2011. "The Economic Structure of Trusts: Towards a Property-based Approach," OUP Catalogue, Oxford University Press, number 9780199602407.
    11. Armelle Mazé & Claude Ménard, 2010. "Private ordering, collective action, and the self-enforcing range of contracts," European Journal of Law and Economics, Springer, pages 131-153.
    12. Ola Kvaløy & Trond E. Olsen, 2016. "Incentive Provision when Contracting is Costly," Economica, London School of Economics and Political Science, pages 741-767.
    13. 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.
    14. Ying-Ju Chen & Xiaojian Zhao, 2013. "Solution Concepts of Principal-Agent Models with Unawareness of Actions," Games, MDPI, Open Access Journal, vol. 4(3), pages 1-24, August.
    15. Armelle Mazé & Claude Ménard, 2010. "Private Ordering, Collective Action, and the Self-Enforcing Range of Contracts. The Case of French Livestock Industry," Université Paris1 Panthéon-Sorbonne (Post-Print and Working Papers) halshs-00624288, HAL.
    16. Peter Cserne, "undated". "Freedom of choice and paternalism in contract law: a law and economics perspective," German Working Papers in Law and Economics 2006-1-1139, Berkeley Electronic Press.
    17. 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.
    18. MacLeod, W. Bentley & Nakavachara, Voraprapa, 2006. "Legal Default Rules: The Case of Wrongful Discharge Laws," IZA Discussion Papers 1970, Institute for the Study of Labor (IZA).
    19. Peter Mankowski, "undated". "Kommentar zu Georg von Wangenheim: Wie kommt es zu umfangreichem Sozialschutz im Zivilrecht?," German Working Papers in Law and Economics 2004-1-1096, Berkeley Electronic Press.

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