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Optimal Penalties in Contracts

Author

Listed:
  • Aaron S. Edlin

    (University of California, Berkeley)

  • Alan Schwartz

    (Yale University)

Abstract

Contract law's liquidated damage rules prevent enforcement of contractual damage measures that require the promisor, if it breaches, to transfer to the promisee a sum that exceeds the net gain the promisee expected to make from performance; but these rules permit the promisor to transfer less than the promisee's expectation. We define a contractual damage multiplier as any number between zero and infinity by which the promisee's expected gain -- its expectation interest -- is multiplied. Multipliers of one or less thus comply with the liquidated damage rules while multipliers that exceed one do not; the high multipliers are unenforceable penalties. This paper shows that multipliers of any size can be efficient or inefficient, depending on the parties' purposes in creating them. For example, a multiplier that exceeds one will decrease welfare if used by a seller with market power to deter entry; but will increase welfare if used by parties to induce efficient relation specific investment. As a consequence, a court should inquire, not into the size of the multiplier, but into the purpose the multiplier serves for the parties.

Suggested Citation

  • Aaron S. Edlin & Alan Schwartz, 2003. "Optimal Penalties in Contracts," Law and Economics 0303002, University Library of Munich, Germany.
  • Handle: RePEc:wpa:wuwple:0303002
    Note: 29 pages, Adobe.pdf
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    File URL: https://econwpa.ub.uni-muenchen.de/econ-wp/le/papers/0303/0303002.pdf
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    Citations

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    Cited by:

    1. Alexander Stremitzer, 2012. "Standard Breach Remedies, Quality Thresholds, and Cooperative Investments," The Journal of Law, Economics, and Organization, Oxford University Press, vol. 28(2), pages 337-359.
    2. Ottorino Chillemi & Claudio Mezzetti, 2014. "Optimal procurement mechanisms: bidding on price and damages for breach," Economic Theory, Springer;Society for the Advancement of Economic Theory (SAET), vol. 55(2), pages 335-355, February.
    3. Richard Gilbert & Eirik Gaard Kristiansen, 2018. "Licensing and innovation with imperfect contract enforcement," Journal of Economics & Management Strategy, Wiley Blackwell, vol. 27(2), pages 297-314, June.
    4. Ronen Avraham & Zhiyong Liu, 2006. "Incomplete Contracts with Asymmetric Information: Exclusive Versus Optional Remedies," American Law and Economics Review, American Law and Economics Association, vol. 8(3), pages 523-561.
    5. Ola Kvaløy & Trond E. Olsen, 2016. "Incentive Provision when Contracting is Costly," Economica, London School of Economics and Political Science, vol. 83(332), pages 741-767, October.
    6. Cesare Dosi & Michele Moretto, 2017. "Cost Uncertainty and Time Overruns in Public Procurement: a Scoring Auction for a Contract with Delay Penalties," Working Papers 2017.02, Fondazione Eni Enrico Mattei.
    7. Liu, Zhiyong & Avraham, Ronen, 2012. "Ex ante versus ex post expectation damages," International Review of Law and Economics, Elsevier, vol. 32(4), pages 339-355.
    8. Cesare Dosi & Michele Moretto, 2017. "Cost Uncertainty and Time Overruns in Public Procurement: a Scoring Auction for a Contract with Delay Penalties," Working Papers 2017.02, Fondazione Eni Enrico Mattei.
    9. Emre M. Demirezen & Subodha Kumar & Bala Shetty, 2016. "Managing Co-Creation in Information Technology Projects: A Differential Games Approach," Information Systems Research, INFORMS, vol. 27(3), pages 517-537.
    10. Comino, Stefano & Manenti, Fabio M. & Nicolò, Antonio, 2011. "Ex-ante licensing in sequential innovations," Games and Economic Behavior, Elsevier, vol. 73(2), pages 388-401.
    11. Alexander, Corinne & Ivanic, Rasto & Rosch, Stephanie & Tyner, Wallace & Wu, Steven Y. & Yoder, Joshua R., 2012. "Contract theory and implications for perennial energy crop contracting," Energy Economics, Elsevier, vol. 34(4), pages 970-979.
    12. Sugata Bag, 2010. "Whither Contract Damages: Contracts with Bilateral Reliance, One-sided Private Information," Revista de la Maestría de Derecho Económico, Universidad Javeriana - Derecho Económico, December.

    More about this item

    JEL classification:

    • K12 - Law and Economics - - Basic Areas of Law - - - Contract Law

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