合同法经济学阅读 Readings in the Economics of Contract Law(可编辑)

1、合同法经济学阅读 Readings in the Economics of Contract Law Readings in the economics of contract law Readings in the economics of contract law Edited by Victor P . Goldberg THOMAS MACIOCE PROFESSOR OF LAW COLUMBIA UNIVERSITY CAMBRIDGE UNIVERSITY PRESS CAMBRIDGE UNIVERSITY PRESS Cambridge, New York, Melbourn

2、e, Madrid, Cape Town, Singapore, Sao Paulo Cambridge University Press The Edinburgh Building, Cambridge CB2 2RU, UK Published in the United States of America by Cambridge University Press, New York . Cambridge. org Information on this title : ./9780521341202 ? Cambridge University Press

3、 1989 This publication is in copyright . Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press . First published 1989 Reprinted 1990,1992,199 3 A catalo

4、gue record for this publication is available from the British Library ISBN-13 978-0-521-34120-2 hardback ISBN-10 0-521-34120-5 hardback ISBN-13 978-0-521-34920-8 paperback ISBN-10 0-521-34920-6 paperback Transferred to digital printing 2006 Contents Preface ix Part I. Some preliminaries 1.1. Non-con

5、tractual relations in business: a preliminary study 4 STEWART MACAULAY 1.2. Relational exchange: economics and complex contracts 16 VICTOR P . GOLDBERG 1.3. Production functions, transactions costs, and the new institutionalism 2 1 VICTOR P . GOLDBERG 1.4. The market for "lemons" : quality

6、 uncertainty and the market mechanism 24 GEORGE A. AKERLOF 1.5. A treatise on the law of marine insurance and general average, volume I 29 THEOPHILUS PARSON S 1.6. The economics of moral hazard : comment 3 1 MARK V . PAULY 1.7. The economics of moral hazard : further comment 33 KENNETH J . ARROW 1.8

7、. Efficient rent seeking 35 GORDON TULLOCK Questions and notes on rent seeking 43 Part II. Contract law and the least cost avoider 2.1 . Unity in tort, contract, and property : the model of precaution 53 ROBERT COOTER CONTENTS 2.2. The mitigation principle: toward a general theory of contractual obl

8、igation 1 6 1 CHARLES J . GOETZ AN D ROBERT E . SCOTT 2.3. Relational exchange, contract law, and the Boomer problem 1 69 VICTOR P . GOLDBERG Questions and notes on the least cost avoider 72 Part III. The expectation interest, the reliance interest, and consequential damages A . Property in price 3.

9、1. The reliance interest in contract damages 77 LON FULLER AN D WILLIAM PERDUE 3.2. Note on price information and enforcement of the expectation interest 80 VICTOR P . GOLDBERG Questions and notes on protecting the property interest in the price 84 B. Reliance and consequential damages 3.3. The cont

10、ract-tort boundary and the economics of insurance 86 WILLIAM BISHOP 3.4. Notes on the reliance interest 92 ROBERT BIRMINGHAM Questions and notes on fault, consequential damages, and reliance 99 Part IV. The lost-volume seller puzzle 4.1 . An economic analysis of the lost-volume retail seller 106 VIC

11、TOR P . GOLDBERG Questions and notes on the seller's lost profits 114 Part V. Specific performance and the cost of completion 5.1. The choice of remedy for breach of contract 122 WILLIAM BISHOP 5.2. Relational exchange, contract law, and the Boomer problem 2 126 VICTOR P . GOLDBERG vi Contents 5

12、.3. Cost of completion or diminution in market value : the relevance of subjective value 128 TIMOTHY J . MURIS Questions and notes on specific performance and cost of completion 133 Part VI. Power, governance, and the penalty clause puzzle 6.1. Transaction cost determinants of "unfair" con

13、tractual arrangements 139 BENJAMIN KLEIN 6.2. A relational exchange perspective on the employment relationship 147 VICTOR P . GOLDBERG 6.3. Liquidated damages versus penalties : sense or nonsense? 152 KENNETH W . CLARKSON , ROGER LEROY MILLER, AN D TIMOTHY J. MURIS 6.4. Further thoughts on penalty c

14、lauses 161 VICTOR P . GOLDBERG Questions and notes on power and penalty clauses 164 Part VII. Standard forms and warranties 7.1. Institutional change and the quasi-invisible hand 169 VICTOR P . GOLDBERG 1.2. A theory of the consumer product warranty 174 GEORGE L . PRIEST Questions and notes on warra

15、nties 185 Part VIII. Duress, preexisting duty, and good faith modification 8.1. Duress by economic pressure, I 188 JOHN DALZELL 8.2. Gratuitous promises in economics and law 194 RICHARD A . POSNER 8.3. The mitigation principle : toward a general theory of contractual obligation 2 199 CHARLES J . GOE

16、TZ AN D ROBERT E . SCOTT 8.4. The law of contract modifications: the uncertain quest for a benchmark of enforceability 201 VAROUJ A . AIVAZIAN , MICHAEL J. TREBILCOCK, AN D MICHAEL PENNY Questions and notes on duress 208 vii CONTENTS Part IX. Impossibility, related doctrines, and price adjustment 9.

17、1. Impossibility and related doctrines in contract law: an economic analysis 212 RICHARD A . POSNER AN D ANDREW M . ROSENFIELD 9.2. Impossibility and related excuses 221 VICTOR P . GOLDBERG 9.3. Price adjustment in long-term contracts 225 VICTOR P . GOLDBERG Questions and notes on impossibility and

18、price adjustment 236 References 241 Index of cases 247 Author index 249 Subject index 251 vin Preface The Law and Economics revolution is proceeding in these days apace.* Economic analysis is being applied by scholars to a wide range of legal problems. Scholars identified with the use of economic an

19、alysis - Richard Posner, Frank Easterbrook, Robert Bork, Douglas Ginsburg and Ste- phen Williams - have been named to the federal bench although not all have remained on the bench . First-year law students in most law schools are confronted with the intricacies and paradoxes of the Coase Theorem in

20、at least one of their classes. Economic analysis has probably had its greatest impact in its tradi- tional stronghold of antitrust and in the tort/nuisance area. There has been a reasonable amount of work on the economics of contracts and contract law, and this too is beginning to have an impact.t T

21、his book represents a sampling of that literature, supplemented by a few pieces from the more distant past. I do not want to oversell the virtues of the economic approach - overselling is one of the vices economists have been accused of in their forays into legal issues. Economics does not provide a

22、ll the answers. And some that it does provide are wrong, as we shall see. Nonetheless, it does provide a powerful analytical frame- work that can both enhance our understanding of how parties structure their contractual relationships and illuminate many areas of contract law. The scope of these read

23、ings is deliberately circumscribed. My primary interest is in commercial transactions between modern, Western busi- * The phrasing is a play on Cardozo's famous language in Ultramares Corporation v. Touche, Niven & Co. t Recent scholarship is revolutionizing the study of the law of corporati

24、ons as well. The central theme of that literature is that the corporation should be analyzed as if it were a complex set of contract-like relationships. ix PREFACE ness firms. The emphasis is on legal questions arising under the common law or the Uniform Commercial Code, but the analysis should be a

25、p- plicable with little modification to the civil code countries of Western Europe as well. Consumer transactions will only be touched upon. I do not want to get involved with such questions as whether contract prin- ciples that work in the modern American context might work equally well in a social

26、ist system, an underdeveloped country, or New Jersey in 1750. My reason for avoiding these questions is not that they are un- interesting. Quite the opposite - they are too interesting. My concern is that, aside from adding considerable length to the book, pursuing such questions would deflect atten

27、tion from my basic theme, namely that economic analysis can be extremely useful in illuminating nitty- gritty problems in contract law. A number of economists have argued that the common law evolves toward becoming efficient even if judges do not consciously take effi- ciency into account.* The evol

28、utionary process "does " the economics; judge s and lawyers needn't bother. I have never been very comfortable with that approach. The statement of a rule to decide a specific case can easily result in a formulation that leads to the improper disposition of other cases. Legal doctrine

29、will evolve reformulating rules to fit new fact situations as they arise. It is quite possible that the categories will take on a life of their own, resulting in pockets of law that make little sense. It is necessary from time to time to step outside the process and assess the meaningfulness of the

30、rules, distinctions, and categories rec- ognized by the current law. To me, that is the most interesting aspect of the application of economic analysis to contract law. It provides a viewpoint that transcends the traditional legal boundaries and gives a fresh perspective on the law, providing additi

31、onal support for some doctrines and undermining others. The question of what contract law ought to be can be approached from two different angles. The first is facilitative. If contracting parties would want to do X, how can contract law be designed to enable them to do so? Contract law should striv

32、e for efficiency in this sense. The second is regulatory. If contracting parties would want to do X, how can they be prevented from doing so? If, for example, a policymaker wants to provide "job security" to franchised dealers, it will be useful to know why the lack of security is valuable

33、 to franchisors and how costly it would be to prevent franchisors from contracting around legally imposed job security. My bias, and that of most of the authors in this * Judge Posner has been a major proponent of this viewpoint; see Posner 1986, pp . 229-33 . Preface volume, is toward the facilitat

34、ive approach. But much of the analysis would be equally useful for a policymaker who subscribes to the latter position. In this limited sense, much of the analysis is value free. The book can be used as supplementary material in a number of courses. The target audience is first-year contracts course

35、s. To be sure, some of the material will be too hard for students struggling with con- tracts concepts for the first time and who have no economics background. Even so, those students will find that economic reasoning can impose considerable order on some of the most confusing areas of contract law.

36、 The book can also be used in advanced contracts courses sales, com- mercial transactions and in law and economics courses. The book is organized as follows. Parts I and II provide general background. Part I is primarily concerned with presenting a number of concepts that economists have found usefu

37、l in analyzing legal issues in general and contracts in particular : relational exchange, transactions costs, adverse selection, moral hazard, and rent seeking. In Part II we begin the analysis of contract law, emphasizing both the similarity be- tween contract and tort problems and the significance

38、 of the fact that contracting parties are often isolated to some degree from market al- ternatives. It includes a discussion of a well-known, noncontract case, Boomer v. Atlantic Cement Co., to highlight the similarity between contract and tort issues. Part III concerns some issues regarding damage

39、remedies. The first half develops the notion of a property right in the price as a rationale for enforcing executory agreements. The second focuses on the impli- cations of granting compensation for consequential damages and on the relationship between consequential damages and reliance damages. Par

40、t IV attempts to resolve a difficult problem in contract law: the appropriate treatment of the "lost-volume seller." Part V concerns the specific performance remedy and its close cousin, the cost-of-completion damage remedy. Part VI is concerned with the exercise of "power" withi

41、n a contractual relationship and the use of penalties broadly defined to influence be- havior. Special emphasis is put on the common law's reluctance to en- force penalty clauses. Part VII considers another area in which courts and legislatures have been reluctant to enforce the terms of contrac

42、ts : express warranties and disclaimers in standard form contracts. If conditions change after a contract is entered into, one party might request that the contract be modified or that it be excused from per- formance. Part VIII concerns the possibility that a modification might be accomplished unde

43、r duress : One party might be taking advantage of the other's vulnerability to a threat of termination. Part IX concerns xi PREFACE grounds for excusing performance: acts of God, impossibility, imprac- ticability, frustration of purpose, and the like. It also considers one significant way in whi

44、ch parties can arrange their affairs to anticipate certain changed circumstances: inclusion of a price adjustment mecha- nism in their contract. xn Readings in the economics of contract law PART I Some preliminaries The first paper in this book appeared over two decades ago in a sociology journal. N

45、evertheless, Stewart Macaulay's paper on the use and nonuse of contracts by businessmen has had a considerable influence on economic scholarship. The paper provides a good picture of how businessmen view contracts and why contract language is often of little relevance in describing the behavior

46、of con- tracting parties and influencing the resolution of disputes. It provides a com- monsense backdrop for much of what comes later. A distinguishing feature of this collection of readings is the focus on "rela- tional exchange" as opposed to "discrete transactions." These are analytical constructs, not categories for classifying existing contractual arrangements. The former concerns arrangements in which contracting parties are isolated, to some degree, from altern