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Should Courts always Enforce what Contracting Parties Write?

  • Luca Anderlini
  • Leonardo Felli
  • Andrew Postlewaite

We find an economic rationale for the common sense answer to the question in our title — courts should not always enforce what the contracting parties write. We describe and analyze a contractual environment that allows a role for an active court. An active court can improve on the outcome that the parties would achieve without it. The institutional role of the court is to maximize the parties’ welfare under a veil of ignorance. We study a buyer-seller multiple-widget model with risk-neutral agents, asymmetric information and ex-ante investments. The court must decide when to uphold a contract and when to void it. The parties know their private information at the time of contracting, and this drives a wedge between ex-ante and interim-efficient contracts. In particular, if the court enforces all contracts, pooling obtains in equilibrium. By voiding some contracts the court is able to induce them to separate, and hence improve ex-ante welfare. In some cases, an ambiguous court that voids and upholds both with positive probability may be able to increase welfare even further.

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Paper provided by CESifo Group Munich in its series CESifo Working Paper Series with number 1847.

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Date of creation: 2006
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Handle: RePEc:ces:ceswps:_1847
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  1. Luca Anderlini & Leonardo Felli & Andrew Postlewaite, 2003. "Should Courts Always Enforce What Contracting Parties Write?," PIER Working Paper Archive 06-024, Penn Institute for Economic Research, Department of Economics, University of Pennsylvania, revised 01 Oct 2006.
  2. Luca Anderlini & Leonardo Felli & Andrew Postlewaite, 2006. "Active courts and menu contracts," LSE Research Online Documents on Economics 3569, London School of Economics and Political Science, LSE Library.
    • Luca Anderlini & Leonardo Felli & Andrew Postlewaite, 2013. "Active courts and menu contracts," Chapters, in: Research Handbook on Economic Models of Law, chapter 13, pages 281-307 Edward Elgar Publishing.
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