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# Econ 522 Economics of Law

Econ 522 Economics of Law. Dan Quint Spring 2013 Lecture 14. Reminders. HW3 (contract law) due next Thursday. Monday – reasons a contract might not be enforced. Derogation of Public Policy Incompetence but not drunkenness Duress and Necessity Today: several others

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## Econ 522 Economics of Law

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1. Econ 522Economics of Law Dan Quint Spring 2013 Lecture 14

2. Reminders • HW3 (contract law) due next Thursday

3. Monday – reasons a contract might not be enforced • Derogation of Public Policy • Incompetence • but not drunkenness • Duress and Necessity • Today: several others • performance became impossible • contract was premised on (certain types of) bad information • terms are overly vague or one-sided • But first…

4. Another experiment:is trust a problem?

5. We motivated contracts with an agency (trust) game Player 1 (you) Trust me Don’t Player 2 (me) (100, 0) Share profits Keep all the money (150, 50) (0, 200) • Without binding contracts, might be no reason for me to return your money, so no reason for you to trust me

6. To see if trust is a problem, we’ll use a similar game as an experiment • Player A starts with \$10 • Chooses how much of it to give to player B • That money is tripled • Player B has \$10, plus 3x whatever A gave him/her • Chooses how much (if any) to give back to player A • So for example… • if player A decides to send \$3… • then A has \$7 left, and B has \$19… • and then B can send back to A any amount from 0 to \$19 • if A sends \$9, B has \$37, A has \$1 plus whatever B sends back

7. To see if trust is a problem, we’ll use a similar game as an experiment Player 1 Send 0 Send 10 x Player 2 Return 0 Return 10+3x y ((10 – x) + y, (10 + 3x) – y) • Player 1 gets whatever he kept, plus whatever 2 sends him • Player 2 gets 10, plus three times what 1 sends him, minus whatever he sends to player 1

8. We’ll try this game four different ways • Anonymously – A and B don’t know who each other are • we’ll use student ID numbers to identify players, and play on paper • Privately – A and B don’t interact, but will learn who each other are after the game • still on paper, but with names, so B sees A’s name • after class, Nathan will email A with B’s name • Face to face – A and B can discuss the game before playing, but their actions remain private • Publicly – A and B play out loud in front of the class

9. A performance excuse:impossibility

10. Next doctrine for voiding a contract: impossibility • 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

11. Next doctrine for voiding a contract: impossibility • 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”

12. Next doctrine for voiding a contract: impossibility • 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?

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

14. Who is the efficient bearer of a particular risk? • 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.”

15. That’s why Hadley v Baxendale was “surprising” • 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

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

18. Fraud • Fraud: one party was deliberately tricked source: http://www.wyff4.com/r/29030818/detail.html

19. What if you trick someone by withholding information? • 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

20. Duty to disclose under common law • 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)

21. Duty to disclose under common law • 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…

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

23. What if both parties were misinformed? 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”

24. What if both parties were misinformed? 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” 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

25. Another principle for allocating risks efficiently: uniting knowledge and control • 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

26. What About Unilateral Mistake? • 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

27. What About Unilateral Mistake? • 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

28. Unilateral mistake: Laidlaw v Organ (U.S. Supreme Court, 1815) • 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

29. Uniting knowledge and control • 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

30. Unilateral mistake: productive versus redistributive information • 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

31. Other reasons a contract may not be enforced

32. Vague contract terms • Courts will generally not enforce contract terms that are overly vague • Can be thought of as a penalty default • “Punish” the parties by refusing to enforce contract… • …so people will be more clear when they write contracts • But some exceptions • Parties may commit to renegotiating the contract “in good faith” under certain contingencies

33. Adhesion (I): “Shrink-wrap” licenses • Back when software came on disks or CDs… • Box was wrapped in cellophane • Inside, “By unwrapping this box, you agree to the following terms…” • Contract is not binding if one party had no opportunity to review it before agreeing “Due to the unscheduled trip to the autowrecking yard the school bus will be out of commission for two weeks. Note by reading this letter out loud you have waived any responsibility on our part in perpetuity throughout the known universe.”

34. Adhesion (II): What if a party chose not to review the contract? Source: http://www.foxnews.com/scitech/2010/04/15/online-shoppers-unknowingly-sold-souls/