1. Econ 522 Economics of Law Dan Quint Fall 2013 Lecture 13

2. 1  MT1 next Wednesday in Education L196 Logistics

3. 2  Breach of contract  Reliance  How liability for breach creates incentive for both, paradox of compensation  Default rules  C&U: impute the rule the parties would have wanted and apply that  That’s whatever rule would have been efficient – allocating each risk to whoever can bear it most cheaply So far in contract law…

4. 3  Old urban legend: A man bought a box of extremely rare and expensive cigars, and insured them against loss or damage. After smoking them, he filed an insurance claim, saying they had been destroyed in 20 separate small fires. The insurance company refused to pay, the man sued and won. But as he was leaving the courtroom, he was arrested on 20 counts of arson.  Serious question: If the intent of a contract is clear, but different from the literal meaning, which should be enforced? Discussion question

5. 4 Back to Default Rules

6. 5  Default rules – rules that apply in circumstances not addressed in the contract  Cooter and Ulen: impute rule most parties would have wanted, which is efficient rule, and apply that  Ayres and Gertner: not necessarily From Monday

7. 6  Ian Ayres and Robert Gertner, “Filling Gaps in Incomplete Contracts: An Economic Theory of Default Rules”  Sometimes better to make default rule something the parties would not have wanted  To give incentive to address an issue rather than leave a gap  Or to give one party incentive to disclose information  “Penalty default” Default rules: a different view

8. 7  Baxendale (shipper) is only one who can influence when crankshaft is delivered; so he’s efficient bearer of risk  If default rule held Baxendale liable, Hadley has no need to tell him the shipment is urgent  So Hadley might hide this information, which is inefficient  Ayres and Gertner: Ruling in Hadley was a good one, not because it was efficient, but because it was inefficient…  …but in a way that created incentive for disclosing information Penalty defaults: Hadley v Baxendale

9. 8  Suppose…  80% of millers are low-damage – suffer $100 in losses from delay  20% of millers are high-damage – suffer $200 in losses from delay  Shipper liable for actual damages  Average miller would suffer $120 in losses  Shipper makes efficient investment for average type  But not efficient for either type  Shipper liable for foreseeable damages  Shipper makes efficient investment for low-damage millers  High-damage millers have strong incentive to negotiate around default rule Penalty defaults: example

10. 9  Real estate brokers and “earnest money”  Broker knows more about real estate law  Default rule that seller keeps earnest money encourages broker to bring it up if it’s efficient to change this Penalty defaults: other examples

11. 10  Real estate brokers and “earnest money”  Broker knows more about real estate law  Default rule that seller keeps earnest money encourages broker to bring it up if it’s efficient to change this  Courts will impute missing price of a good, but not quantity  Forces parties to explicitly contract on quantity, rather than leave it for court to decide Penalty defaults: other examples

12. 11  Look at why the parties left a gap in contract  Because of transaction costs  use efficient rule  For strategic reasons  penalty default may be more efficient  Similar logic in a Supreme Court dissent by Justice Scalia  Congress passed a RICO law without statute of limitations  Majority decided on 4 years – what they thought legislature would have chosen  Scalia proposed no statute of limitations; “unmoved by the fear that this… might prove repugnant to the genius of our law…”  “Indeed, it might even prompt Congress to enact a limitations period that it believes appropriate, a judgment far more within its competence than ours.” When to use penalty defaults?

13. 12 When should a contract not be enforced?

14. 13  Going back to property law…  Coase Theorem: to get efficient outcomes, we should let people trade whenever they want to  But also saw some exceptions – some trades that aren’t, and shouldn’t, be allowed  Selling enriched uranium to a terrorist  Similarly with contract law…  First day: to get efficient outcomes, enforce any contract both parties wanted enforced  But next, we’ll see exceptions – contracts which shouldn’t be enforced, due to externalities or market failures/transaction costs When should voluntary trade not be allowed?

15. 14  Obvious: contract to buy a kilo of cocaine is unenforceable Example of an unenforceable contract: a contract which breaks the law

16. 15  Obvious: contract to buy a kilo of cocaine is unenforceable  Less obvious: otherwise-legal contract whose real purpose is to circumvent a law  Legal doctrine: derogation of public policy  Derogate, verb. detract from; curtail application of (a law)  Applies to contracts which could only be performed by breaking law…  …but also to “innocent” contracts whose purpose is to get around a law or regulation Example of an unenforceable contract: a contract which breaks the law

17. 16  Labor unions required by law to negotiate “in good faith”  Recent NBA labor troubles  Old CBA: 57% of “basketball-related income” went to player salaries  Owners were offering less than 50%, players demanding 53%...  Imagine the following contract:  “For the next 50 years, if the NBAPA accepts a CBA paying less than 55% of BRI in player salaries, then we also agree that all non-retired players will work for you as coal miners every offseason at federal minimum wage.”  Purpose is purely to “bind hands” in negotiations with ownership  Contract would not be enforced Derogation of public policy – example

18. 17  In general: a contract is not enforceable if it cannot be performed without breaking the law  Exception: if promisor knew (and promisee didn’t)  I’m married, my girlfriend in California doesn’t know; I promise her I’ll marry her, she quits her job and moves to Madison  My company agrees to supply a product that we can’t produce without violating a safety or environmental regulation  Keeping either promise would require breaking the law…  …but I’d still be liable for damages for breach  Like in Ayres and Gertner: default rule penalizes better- informed party for withholding information Derogation of public policy

19. 18  Talked earlier about default rules  Default rules apply if no other rule is specified…  …but can be contracted around  Rules like “derogation of public policy” cannot be contracted around  Parties to a contract can’t say, “even though this type of contract would normally not be valid, this one is”  Rules which always apply: immutable rules, or mandatory rules, or regulations  Fifth purpose of contract law is to minimize transaction costs of negotiating contracts by supplying efficient default rules and regulations. Default rules versus regulations

20. 19 Ways to get out of a contract

21. 20  Formation defense  Claim that a valid contract does not exist  (Example: no consideration)  Performance excuse  Yes, a valid contract was created  But circumstances have changed and I should be allowed to not perform without penalty  Most doctrines for invalidating a contract can be explained as either…  Individuals agreeing to the contract were not rational, or  Transaction cost or market failure Formation Defenses and Performance Excuses

22. 21  Courts will not enforce contracts with people who can’t be presumed to be rational  Children  Legally insane  Incompetence  One party was “not competent to enter into the agreement”  No “meeting of the minds” One formation defense: incompetence

23. 22  If courts won’t enforce a contract signed by someone who wasn’t competent…  What if you signed a contract while drunk?  You need to have been really, really, really drunk to get out of a contract  (“Intoxicated to the extent of being unable to comprehend the nature and consequences of the instrument he executed”)  Lucy v. Zehmer, Virginia Sup Ct 1954 So…

24. 23  Zehmer and his wife owned a farm (“the Ferguson farm”), Lucy had been trying to buy it for some time  While out drinking, Lucy offers $50,000, Zehmer responds, “You don’t have $50,000”  “We hereby agree to sell to W.O. Lucy the Ferguson Farm complete for $50,000 00, title satisfactory to buyer.” Lucy v. Zehmer

25. 24  Zehmer and his wife owned a farm (“the Ferguson farm”), Lucy had been trying to buy it for some time  While out drinking, Lucy offers $50,000, Zehmer responds, “You don’t have $50,000”  “We hereby agree to sell to W.O. Lucy the Ferguson Farm complete for $50,000 00, title satisfactory to buyer.” Lucy v. Zehmer

26. 25  So, you can be pretty drunk and still be bound by the contract you signed  Might think “meeting of the minds” would be impossible  But imagine what would happen if the rule went the other way Lucy v. Zehmer

27. 26  So, you can be pretty drunk and still be bound by the contract you signed  Might think “meeting of the minds” would be impossible  But imagine what would happen if the rule went the other way  Borat lawsuits  Julie Hilden, “Borat Sequel: Legal Proceedings Against Not Kazahk Journalist for Make Benefit Guileless Americans In Film”  Moral of the story: don’t get drunk with people who might ask you to sign a contract Lucy v. Zehmer

28. 27 Another formation defense: dire constraints

29. 28  Necessity  I’m about to starve, someone offers me a sandwich for $10,000  My boat’s about to sink, someone offers me a ride to shore for $1,000,000  Contract would not be upheld: I signed it out of necessity  Duress  Other party is responsible for situation I’m in  “I made him an offer he couldn’t refuse”  Contract signed at gunpoint would not be legally enforceable Dire constraints

30. 29 source: http://news.yahoo.com/man-sues-former-hostages-says- broke-promise-190902970.html Duress

31. 30  Example  Mugger threatens to kill you unless you give him $100  You write him a check  Do you have to honor the agreement?  “Efficiency requires enforcing a contract if both parties wanted it to be enforceable”  He did – he wants your $100  You did – you’d rather pay $100 than be killed  So why not enforce it?  Makes muggings more profitable  leads to more muggings  Tradeoff: refuse to enforce a Pareto-improving trade, in order to avoid incentive for bad behavior Friedman on duress

32. 31  Example  Mugger threatens to kill you unless you give him $100  You write him a check  Do you have to honor the agreement?  “Efficiency requires enforcing a contract if both parties wanted it to be enforceable”  He did – he wants your $100  You did – you’d rather pay $100 than be killed  So why not enforce it?  Makes muggings more profitable  leads to more muggings  Tradeoff: refuse to enforce a Pareto-improving trade, in order to avoid incentive for bad behavior Friedman on duress

33. 32  Same logic doesn’t work for necessity  You get caught in a storm on your $1,000,000 sailboat  Tugboat offers to tow you to shore for $900,000  (Otherwise he’ll save your life but let your boat sink)  Duress: if we enforce contract, incentive for more crimes  Necessity: if we enforce contract, incentive for more tugboats to be available to rescue sailboats  Why is that bad? What about necessity?

34. 33 What about necessity? “Should I motor around looking for sailboats to save?”  Social cost = private cost = value of my time  Social benefit = probability x (value of boat – cost of tow)  Private benefit = probability x (price I can charge – cost of tow)  If tugboat captain can charge the whole value of the boat, he spends efficient amount of time saving sailboats!  So maybe we should enforce this contract…

35. 34 What about necessity? “Should I sail today?”  Suppose tugboat is there to rescue me if there’s a storm  Social benefit = private benefit = how much I enjoy sailing  Social cost = probability x cost of tow  Private cost = probability x price he can charge  If tugboat captain can only charge cost of tow, I sail efficient amount  If he can charge the whole value of the boat, I undersail!

36. 35  Same transaction sets incentives on both parties  Price that would be efficient for one decision, is inefficient for other  “Put the incentive where it would do the most good”  Least inefficient price is somewhere in the middle  And probably not the price that would be negotiated in the middle of a storm! Friedman’s point

37. 36  Same transaction sets incentives on both parties  Price that would be efficient for one decision, is inefficient for other  “Put the incentive where it would do the most good”  Least inefficient price is somewhere in the middle  And probably not the price that would be negotiated in the middle of a storm!  So makes sense for courts to overturn contracts signed under necessity, replace them with ex-ante optimal terms  More general point  Single price creates multiple incentives  May be impossible to get efficient behavior in all dimensions Friedman’s point

38. 37  Court won’t enforce contracts signed under threat of harm  “Give me $100 or I’ll shoot you”  But many negotiations contain threats  “Give me a raise, or I’ll quit”  “$3,000 is my final offer for the car, take it or I walk”  The difference?  Threat of destruction of value versus failure to create value  A promise is enforceable if extracted as price of cooperating in creating value; not if it was extracted by threat to destroy value Real duress versus fake duress

39. 38  Captain hires crew in Seattle for fishing expedition to Alaska  In Alaska, crew demands higher wages or they’ll quit, captain agrees  Back in Seattle, captain refuses to pay the higher wages, claiming he agreed to them under duress  Court ruled for captain  Since crew had already agreed to do the work, no new consideration was given for promise of higher wage Example: Alaska Packers’ Association v Domenico (US Ct App 1902)

40. 39 A performance excuse: impossibility

41. 40  When performance becomes impossible, should promisor owe damages, or be excused from performing?  A perfect contract would explicitly state who bears each risk  Contract may give clues as to how gaps should be filled  Industry custom might be clear  But in some cases, court must fill gap Next doctrine for voiding a contract: impossibility

42. 41  In most situations, when neither contract nor industry norm offers guidance, promisor is held liable for breach  But there are exceptions  Change “destroyed a basic assumption on which the contract was made” Next doctrine for voiding a contract: impossibility

43. 42  In most situations, when neither contract nor industry norm offers guidance, promisor is held liable for breach  But there are exceptions  Change “destroyed a basic assumption on which the contract was made”  Efficiency requires assigning liability to the party that can bear the risk at least cost  How to determine who that is? Next doctrine for voiding a contract: impossibility

44. 43  Friedman offers several bases for making this determination  Spreading losses across many transactions  Moral hazard: who is in better position to influence outcome? Who is the efficient bearer of a particular risk?

45. 44  Friedman offers several bases for making this determination  Spreading losses across many transactions  Moral hazard: who is in better position to influence outcome?  Adverse selection: who is more aware of risk, even if he can’t do anything about it?  “…The party with control over some part of the production process is in a better position both to prevent losses and to predict them. It follows that an efficient contract will usually assign the loss associated with something going wrong to the party with control over that particular something.” Who is the efficient bearer of a particular risk?

46. 45  Baxendale (shipper) could influence speed of delivery, Hadley could not  So Baxendale was efficient bearer of the risk of delay  Court ruled he didn’t owe damages for lost profits, forcing Hadley to bear much of this risk  Only makes sense as a “penalty default”  Rule creates incentive for Hadley to reveal urgency of this shipment That’s why Hadley v Baxendale was “surprising”

47. 46 Contracts based on bad information (won’t get to this)

48. 47  Four doctrines for invalidating a contract  Fraud  Failure to disclose  Frustration of purpose  Mutual mistake Contracts based on faulty information

49. 48  Fraud: one party was deliberately tricked Fraud source: http://www.wyff4.com/r/29030818/detail.htmlhttp://www.wyff4.com/r/29030818/detail.html

50. 49  Under the civil law, there is a duty to disclose  If you fail to supply information you should have, contract will be voided – failure to disclose  Less so under the common law  Seller has to share information about hidden dangers…  …but generally not information that makes a product less valuable without making it dangerous  Exception: new products come with “implied warranty of fitness”  Another exception: Obde v Schlemeyer What if you trick someone by withholding information?

51. 50  Under common law, seller required to inform buyer about hidden safety risks, generally not other information  But…  Obde v Schlemeyer (1960, Sup Ct of WA)  Seller knew building was infested with termites, did not tell buyer  Termites should have been exterminated immediately to prevent further damage  Court in Obde imposed duty to disclose (awarded damages) Duty to disclose under common law

52. 51  Under common law, seller required to inform buyer about hidden safety risks, generally not other information  But…  Obde v Schlemeyer (1960, Sup Ct of WA)  Seller knew building was infested with termites, did not tell buyer  Termites should have been exterminated immediately to prevent further damage  Court in Obde imposed duty to disclose (awarded damages)  Some states require used car dealers to reveal major repairs done, sellers of homes to reveal certain types of defects… Duty to disclose under common law

53. 52 Failure to disclose? source: http://kdvr.com/2012/10/26/chinese-man-sues-wife-for-being-ugly-wins-120000/http://kdvr.com/2012/10/26/chinese-man-sues-wife-for-being-ugly-wins-120000/

54. 53 Frustration of Purpose  Change in circumstance made the original promise pointless  Coronation Cases  “When a contingency makes performance pointless, assign liability to party who can bear risk at least cost” What if both parties were misinformed?

55. 54 Frustration of Purpose  Change in circumstance made the original promise pointless  Coronation Cases  “When a contingency makes performance pointless, assign liability to party who can bear risk at least cost” What if both parties were misinformed? Mutual Mistake  Mutual mistake about facts  Circumstances had already changed, but we didn’t know  Logger buys land with timber on it, but forest fire had wiped out the timber the week before  Mutual mistake about identity  Disagreement over what was being sold

56. 55  Hadley v Baxendale (miller and shipper)  Hadley knew shipment was time-critical  But Baxendale was deciding how to ship crankshaft (boat or train)  Party that had information was not the party making decisions  Efficiency generally requires uniting knowledge and control  Contracts that unite knowledge and control are generally efficient, should be upheld  Contracts that separate knowledge and control may be inefficient, should more often be set aside Another principle for allocating risks efficiently: uniting knowledge and control

57. 56  Mutual mistake: neither party had correct information  Contract neither united nor separated knowledge and control  Unilateral mistake: one party has mistaken information  I know your car is a valuable antique, you think it’s worthless  You sell it to me at a low price  Contracts based on unilateral mistake are generally upheld Mutual vs. Unilateral Mistake

58. 57  Mutual mistake: neither party had correct information  Contract neither united nor separated knowledge and control  Unilateral mistake: one party has mistaken information  I know your car is a valuable antique, you think it’s worthless  You sell it to me at a low price  Contracts based on unilateral mistake are generally upheld  Contracts based on unilateral mistake generally unite knowledge and control  And, enforcing them creates an incentive to gather information Mutual vs. Unilateral Mistake

59. 58  War of 1812: British blockaded port of New Orleans  Price of tobacco fell, since it couldn’t be exported  Organ (tobacco buyer) learned the war was over  Immediately negotiated with Laidlaw firm to buy a bunch of tobacco at the depressed wartime price  Next day, news broke the war had ended, price of tobacco went up, Laidlaw sued  Supreme Court ruled that Organ was not required to communicate his information Unilateral mistake: Laidlaw v Organ (U.S. Supreme Court, 1815)

60. 59  Laidlaw v. Organ established: contracts based on unilateral mistake are generally valid  Agrees with efficiency: these contracts typically unite knowledge and control  What about Obde v. Schlemeyer?  The termites case was based on unilateral mistake  Court still upheld contract, but punished seller for hiding information  In that case, contract separated knowledge from control Uniting knowledge and control

61. 60  Productive information: information that can be used to produce more wealth  Redistributive information: information that can be used to redistribute wealth in favor of informed party  Cooter and Ulen  Contracts based on one party’s knowledge of productive information should be enforced…  …especially if that knowledge was the result of active investment  Contracts based on one party’s knowledge of purely redistributive information, or fortuitously acquired information, should not be enforced Unilateral mistake: productive versus redistributive information