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Incomplete Contracts

Author

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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.

Suggested Citation

  • Alan Schwartz, 1997. "Incomplete Contracts," Yale School of Management Working Papers ysm73, Yale School of Management.
  • Handle: RePEc:ysm:somwrk:ysm73
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    Citations

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    Cited by:

    1. 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.
    2. 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.
    3. 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.
    4. 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.
    5. 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.
    6. 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.
    7. 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.
    8. 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.
    9. Baliga, Sandeep & Sjostrom, Tomas, 1999. "Interactive Implementation," Games and Economic Behavior, Elsevier, vol. 27(1), pages 38-63, April.
    10. 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).
    11. 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.
    12. Arruñada Benito & Andonova Veneta, 2008. "Judges' Cognition and Market Order," Review of Law & Economics, De Gruyter, vol. 4(2), pages 665-692, December.
    13. 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).
    14. 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.
    15. 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.
    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.

    More about this item

    JEL classification:

    • K12 - Law and Economics - - Basic Areas of Law - - - Contract Law

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