Econ 522 Economics of Law Dan Quint Spring

Econ 522 Economics of Law Dan Quint Spring 2012 Lecture 14

Reminders: w If you haven’t gotten your first midterm back, see Fran w HW 3 (contract law) due this Thursday 1

Last Wednesday, we… w …finished up reasons to not enforce a contract Fraud, failure to disclose, frustration of purpose, mutual mistake w (NOT unilateral mistake, and why) w Vague terms, adhesion, unconscionability w w …discussed remedies for breach of contract Expectation damages, reliance damages, opportunity cost damages w Specific performance w w …looked at Peevyhouse v Garland Coal Garland failed to perform promised cleanup work after strip-mining w Court awarded objectively-measured damages… w …even though Peevyhouses had rejected similar terms in contract w 2

Party-designed remedies w Remedy for breach could be written directly into contract w However, common law courts don’t always enforce remedy terms Liquidated damages – party-specified damages that reasonably approximate actual harm done by breach w Penalty damages – damages greater than actual harm done w Civil law courts are generally willing to enforce penalty damages w But common law courts often do not w 3

Penalty Damages Coal worth $70, 000 Garland to pay $25, 000 Restoration would cost $30, 000 Liquidated damages are $300 Peevyhouses value restoration at $40, 000 w Peevyhouse v Garland Coal w w w w Peevyhouses only wanted farm strip-mined if it would be restored to original condition after Suppose coal extracted worth $70, 000 Garland paid $25, 000 for rights to mine it Restoration work would cost $30, 000 Diminution of value was $300 So liquidated damages would be $300 Suppose Peevyhouses got $40, 000 of disutility from land being left in poor condition 4

Liquidated damages Coal worth $70, 000 Garland to pay $25, 000 Restoration would cost $30, 000 Liquidated damages are $300 Peevyhouses value restoration at $40, 000 Peevyhouses Sign Don’t Garland Coal (0, 0) Restore property (25, 000, 15, 000) Don’t, pay damages (-14, 700, 44, 700) w If damages limited to liquidated damages… Peevyhouses shouldn’t believe restorative work will get done w So Peevyhouses better off refusing to sign w Even though mining and restoring Pareto-dominates w 5

Penalty damages Coal worth $70, 000 Garland to pay $25, 000 Restoration would cost $30, 000 Liquidated damages are $300 Peevyhouses value restoration at $40, 000 Peevyhouses Sign Don’t Garland Coal (0, 0) Restore property (25, 000, 15, 000) Don’t, pay penalty (25, 000, 5, 000) w If penalty clauses in contracts enforceable… Write contract with $40, 000 penalty for leaving land unrestored w Now restoration work would get done, so Peevyhouses willing to sign w But if courts won’t enforce penalty damages, this won’t work w 6

Penalty clauses w Whatever you can accomplish with penalty clause, you could also accomplish with performance bonus I agree to pay $200, 000 to get house built, but I want you to pay a $50, 000 penalty if it’s late w Alternatively: I agree to pay $150, 000 for house, plus a $50, 000 performance bonus if it’s completed on time w Either way, you get $150, 000 if house is late, $200, 000 if on time w Courts generally enforce bonus clauses, so no problem! w 7

Penalty clauses w Whatever you can accomplish with penalty clause, you could also accomplish with performance bonus w w w I agree to pay $200, 000 to get house built, but I want you to pay a $50, 000 penalty if it’s late Alternatively: I agree to pay $150, 000 for house, plus a $50, 000 performance bonus if it’s completed on time Either way, you get $150, 000 if house is late, $200, 000 if on time Courts generally enforce bonus clauses, so no problem! Similarly, Peevyhouse example Peevyhouses get $25, 000 for mining rights, $40, 000 penalty if land is not restored Equivalently, get $65, 000 for mining rights, pay $40, 000 bonus if restoration is completed But, if intent of contract is too transparent, still might not be enforced 8

Effects of different remedies on… decision to perform or breach decision to sign or not sign investment in performing investment in reliance 9

Plane worth $500, 000 to you Price $350, 000 Cost: either $250, 000 or $1, 000 Remedies and breach Expectation Damages Specific Performance Costs Low – Perform Costs High – Breach I get 100, 000 -650, 000 -150, 000 You get 150, 000 Total 250, 000 -500, 000 0 Costs Low – Perform Costs High – Renegotiate I get 100, 000 -650, 000 -400, 000 – 650, 000 + ½ (500, 000) You get 150, 000 400, 000 150, 000 + ½ (500, 000) Total 250, 000 -500, 000 0 w Transaction costs low either leads to efficient breach, but seller prefers “weaker” remedy w Transaction costs high S. P. leads to ineff. performance 10

Remedies and breach w Opportunity cost damages, or reliance damages Inefficient breach when transaction costs are high w Renegotiate contract to get efficient performance when transaction costs are low w Like nuisance law: any remedy leads to efficient breach with low TC w But only expectation damages do when TC are high w w Unfortunate contingency and fortunate contingency 11

Efficient signing w Specific Performance If costs stay low, I get $350, 000 - $250, 000 = $100, 000 profit w If costs rise, I take $400, 000 loss w Am I willing to sign this contract? w w Even expectation damages face this problem Expectation damages: costs stay low, same $100, 000 profit w Costs rise, $150, 000 loss w If probability of high costs is ½, I won’t sign contract w w Expectation damages lead to efficient breach, but may not lead to efficient signing 12

Reliance – did example a few days ago w If reliance investments increase the damages you receive, we expect to get overreliance w To get efficient reliance, need to exclude gains from reliance in calculation of expectation damages w But then promisor’s liability < promisee’s benefit, leading to inefficient breach w With low transaction costs, fix this through renegotiation w But what about unobservable actions the promisor needs to take, to make breach less likely? w Investment in performance 13

Investment in performance w Some investment I can make to reduce likelihood that breach becomes necessary w Suppose probability of breach is initially ½… but for every $27, 726 I invest, I cut the probability in half Invest nothing probability of breach is 1/2 w Invest $27, 726 probability is 1/4 w Invest $55, 452 probability is 1/8 w Any investment z probability is. 5 * (. 5) z / 27, 726 w w Wrote it this way so p =. 5 e – z / 40, 000 14

Investment in performance (continuing with airplane example) w Suppose you’ve built a $90, 000 hangar Increases value of performance by $180, 000… w …so value of performance is $150, 000 + $180, 000 = $330, 000 w Probability of breach =. 5 e – z/40, 000 w Let D = damages I owe if I breach w w Same questions as before: w What is efficient level of investment in performance? w How much will I choose to invest in performance? 15

Investment in performance (continuing with airplane example) w Suppose you’ve built a $90, 000 hangar Increases value of performance by $180, 000… w …so value of performance is $150, 000 + $180, 000 = $330, 000 w Probability of breach =. 5 e – z/40, 000 w Let D = damages I owe if I breach w w Same questions as before: w What is efficient level of investment in performance? Enough to reduce probability of breach to 40, 000/430, 000 w How much will I choose to invest in performance? Enough to reduce probability of breach to 40, 000/(100, 000 + D) 16

What do these results mean? w What is the efficient level of investment in performance? w Enough so that p(z) = 40, 000/430, 000 w What will promisor do under various rules for damages? w Enough so that p(z) = 40, 000/(100, 000 + D) w So if D = 330, 000, efficient investment in performance w w w D = 330, 000 is promisee’s benefit, including reliance So expectation damages, with benefit of reliance, leads to efficient investment in performance If D < 330, 000, too little investment in performance If D > 330, 000, too much Makes sense – think about externalities 17

Effects of different remedies on… decision to perform or breach decision to sign or not sign investment in performing investment in reliance 18

Paradox of compensation Expectation damages include benefit from reliance investments Expectation damages exclude benefit from reliance investments • Efficient breach • Inefficient breach • Efficient investment in performance • Underinvestment in performance • Over-reliance • Efficient reliance w Is there a way to get efficient behavior by both parties? 19

We already saw one possible solution w Have expectation damages include benefit from reliance… w …but only up to the efficient level of reliance, not beyond w That is, have damages reward efficient reliance investments, but not overreliance Promisee has no incentive to over-rely efficient reliance w Promisor still bears full cost of breach efficient performance w w Problem: this requires court to calculate efficient level of reliance after the fact 20

Another clever (but unrealistic) solution w The problem: Damages promisor pays should include gain from reliance if we want to get efficient performance w Damages promisee receives should exclude gain from reliance if we want to get efficient reliance w w Solution: make damages promisor pays different from damages promisee receives! w How do we do this? Need a third party 21

“Anti-insurance” w You (promisee) and I (promisor) offer Bob this deal: w If you rely and I breach, I pay Bob value of promise with reliance (airplane plus hangar) w Bob pays you value of promise without reliance (airplane alone) w Bob keeps the difference w w You receive damages without benefit from reliance; I pay damages with benefit from reliance 22

“Anti-insurance” w You (promisee) and I (promisor) offer Bob this deal: w If you rely and I breach, I pay Bob value of promise with reliance (airplane plus hangar) w Bob pays you value of promise without reliance (airplane alone) w Bob keeps the difference w w You receive damages without benefit from reliance; I pay damages with benefit from reliance w Offer the deal to two people, make them pay up front for it 23

Reminder: what do courts actually do? w Foreseeable reliance w Include benefits reliance that promisor could have reasonably anticipated 24

Another experiment: is trust a problem? 25

A two-player game, similar to the investment/agency game w Player A starts with $10 Chooses how much of it to give to player B w That money is tripled w w Player B has $10, plus 3 x whatever A gave him/her w Chooses how much (if any) to give back to player A w So for example… if player A decides to send $3… w then A has $7 left, and B has $19… w and then B can send back to A any amount from 0 to $19 w if A sends $9, B has $37, A has $1 plus whatever B sends back w 26

A two-player game, similar to the investment/agency game w We’ll try the game four different ways: w Anonymously – A and B don’t know who each other are w Privately – A and B don’t interact, but will learn who each other are after the game w Face to face – A and B know who each other are, and can discuss the game before playing, but their actions remain private w Publicly – A and B play out loud in front of the class 27

Repeated interactions 28

Repeated games 29

Repeated games Player 1 (you) Trust me Don’t Player 2 (me) (100, 0) Share profits (150, 50) Keep all the money (0, 200) w Suppose we’ll play the game over and over w After each game, 10% chance relationship ends, 90% chance we play at least once more… 30

Repeated games w Suppose you’ve chosen to trust me w Keep all the money: I get $200 today, nothing ever again w Share profits: I get $50 today, $50 tomorrow, $50 day after… w Value of relationship = w Since this is more than $200, we can get cooperation 31

Repeated games w Suppose you’ve chosen to trust me w Keep all the money: I get $200 today, nothing ever again w Share profits: I get $50 today, $50 tomorrow, $50 day after… w Value of relationship = w Since this is more than $200, we can get cooperation 32

Repeated games and reputation w Diamond dealers in New York (Friedman) “…people routinely exchange large sums of money for envelopes containing lots of little stones without first inspecting, weighing, and testing each one” “Parties to a contract agree in advance to arbitration; if… one of them refuses to accept the arbitrator’s verdict, he is no longer a diamond merchant – because everyone in the industry now knows he cannot be trusted. ” 33

Repeated games and reputation w The first purpose of contract law is to enable cooperation, by converting games with noncooperative solutions into games with cooperative solutions w The sixth purpose of contract law is to foster enduring relationships, which solve the problem of cooperation with less reliance on courts to enforce contracts w Law assigns legal duties to certain long-term relationships Bank has fiduciary duty to depositors w Mc. Donalds franchisee has certain duties to franchisor w 34

Repeated games and the endgame problem w Suppose we’ll play agency game 60 times $50 x 60 = $3, 000 > $200, so cooperation seems like no problem w But… w w In game #60, reputation has no value to me Last time we’re going to interact w So I have no reason not to keep all the money w So you have no reason to trust me w w But if we weren’t going to cooperate in game #60, then in game #59… 35

Repeated games and the endgame problem w Endgame problem: once there’s a definite end to our relationship, no reason to trust each other w Example: collapse of communism in late 1980 s w w w Communism believed to be much less efficient than capitalism But fall of communism led to decrease in growth Under communism, lots of production relied on gray market Transactions weren’t protected by law, so they relied on long-term relationships Fall of communism upset these relationships 36

One other bit I like from Friedman 37

Friedman on premarital sex 38

Friedman on premarital sex 39

That’s it for contract law w Purposes for contract law: w w w Encourage cooperation Encourage efficient disclosure of information Secure optimal commitment to performance Secure efficient reliance Provide efficient default rules and regulations Foster enduring relationships End of material on second midterm w Wednesday, we begin tort law 40