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Contract Theory and the Limits of Contract Law |
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Alan Schwartz and Robert E. Scott [View as PDF]
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113 Yale L.J. 541 (2003)
This Article sets out a normative theory to guide
decisionmakers in the regulation of contracts between firms.
Commercial law for centuries has drawn a distinction between
mercantile contracts and others, but modern scholars have not
systematically pursued the normative implications of this
distinction. We attempt to cure this neglect by setting out the
theoretical foundations of a law merchant for our time. Firms
contract to maximize expected surplus, and the state permits
markets to function because markets maximize social welfare.
Thus, there is a correspondence of interest between firms and the
state, which implies that, when externalities are absent, the state
should implement the preferences of firms regarding the rules that
regulate their contracting behavior.
A contract law for firms would differ in three major respects
from current contract law. First, such a law would have far fewer
default rules and standards than current contract law contains.
The high level of generality on which much contract law is written
(e.g., a party must behave "reasonably") creates unacceptable
moral hazard for parties subject to it. Thus, firms in theory should,
and in practice commonly do, contract out of much of the law most
of the time. The primary effect of today's law, therefore, is to raise
transaction costs without altering substantive behavior--an effect
that a law with fewer default rules and standards would avoid.
Second, a contract law for firms would contain a default theory of
interpretation that would require courts to base interpretations
primarily on the written texts of agreements. The costs of incorrect
interpretations that such a theory creates, we argue, would be
more acceptable to firms than the costs that the courts' current
interpretive practices create. Third, the law would contain almost
no mandatory rules. To summarize, a modern law merchant would
be much smaller than current contract law; would truncate broad
judicial searches for parties' true intentions when interpreting
their agreements; and would accord parties much more freedom to
write efficient contracts than now exists.
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