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Should Courts Always Enforce What Contracting Parties Write?

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 Georgetown University, Department of Economics in its series Working Papers with number gueconwpa~06-06-07.

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Date of creation: 07 Jun 2006
Handle: RePEc:geo:guwopa:gueconwpa~06-06-07
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Georgetown University Department of Economics Washington, DC 20057-1036

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Web page: http://econ.georgetown.edu/
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Order Information: Postal: Roger Lagunoff Professor of Economics Georgetown University Department of Economics Washington, DC 20057-1036
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