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The Proprietary Foundations of Corporate Law

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  • John Armour
  • Michael J Whincop

Abstract

Recent work in both the theory of the firm and of corporate law has called into question the appropriateness of analysing corporate law as ‘merely’ a set of standard form contracts. This article develops these ideas by focusing on property law’s role in underpinning corporate enterprise. Rights to control assets are a significant mechanism of governance in the firm. Practical circumstances dictate that such rights must be shared. Property law protects the rights of co-owners against each other’s opportunistic attempts to grant entitlements to t hird parties. At the same time, it uses a range of strategies to minimise the costs such protection imposes on third parties. The choice of strategy significantly affects co-owners’ freedom to customise their control-sharing arrangements. This theory is applied to give an account of the ‘proprietary foundations’ of corporate law, which has significant implications for the way in which the subject’s functions are understood and evaluated.

Suggested Citation

  • John Armour & Michael J Whincop, 2005. "The Proprietary Foundations of Corporate Law," Working Papers wp299, Centre for Business Research, University of Cambridge.
    • Handle: RePEc:cbr:cbrwps:wp299
    Note: PRO-2
    as

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    File URL: https://www.jbs.cam.ac.uk/cbrwp299/
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    References listed on IDEAS

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    1. Hart, Oliver & Moore, John, 1990. "Property Rights and the Nature of the Firm," Journal of Political Economy, University of Chicago Press, vol. 98(6), pages 1119-1158, December.
    2. Oliver Hart & John Moore, 1998. "Default and Renegotiation: A Dynamic Model of Debt," The Quarterly Journal of Economics, President and Fellows of Harvard College, vol. 113(1), pages 1-41.
    3. Eisenberg, Melvin, 1999. "Corporate Law, Social Norms and Belief Systems," Berkeley Olin Program in Law & Economics, Working Paper Series qt1dh3j8qj, Berkeley Olin Program in Law & Economics.
    4. La Porta, Rafael & Florencio Lopez-de-Silanes & Andrei Shleifer & Robert W. Vishny, 1997. "Legal Determinants of External Finance," Journal of Finance, American Finance Association, vol. 52(3), pages 1131-1150, July.
    5. Barzel,Yoram, 1997. "Economic Analysis of Property Rights," Cambridge Books, Cambridge University Press, number 9780521597135, February.
    6. Hansmann, Henry & Kraakman, Reinier, 2002. "Property, Contract, and Verification: The Numerus Clausus Problem and the Divisibility of Rights," The Journal of Legal Studies, University of Chicago Press, vol. 31(2), pages 373-420, June.
    7. Schwartz, Alan, 1989. "A Theory of Loan Priorities," The Journal of Legal Studies, University of Chicago Press, vol. 18(2), pages 209-261, June.
    8. Alan Schwartz, 1997. "Priority Contracts and Priority in Bankruptcy," Yale School of Management Working Papers ysm72, Yale School of Management.
    9. Alchian, Armen A & Demsetz, Harold, 1972. "Production , Information Costs, and Economic Organization," American Economic Review, American Economic Association, vol. 62(5), pages 777-795, December.
    10. Schwartz, Alan, 1992. "Relational Contracts in the Courts: An Analysis of Incomplete Agreements and Judicial Strategies," The Journal of Legal Studies, University of Chicago Press, vol. 21(2), pages 271-318, June.
    11. Simon Deakin & Alan Hughes, 1999. "Economic Efficiency and the Proceduralisation of Company Law," Working Papers wp133, Centre for Business Research, University of Cambridge.
    12. J.Armour & S.Deakin, 2001. "Insolvency, Employment Protection and Corporate Restructuring: The effects of TUPE," Working Papers wp204, Centre for Business Research, University of Cambridge.
    13. Henry B. Hansmann & Ugo A. Mattei, 1998. "The Functions Of Trust Law: A Comparative Legal And Economic Analysis," Yale School of Management Working Papers ysm102, Yale School of Management.
    14. Henry Hansmann & Reinier Kraakman, 2000. "The Essential Role of Organizational Law," Yale School of Management Working Papers ysm147, Yale School of Management, revised 01 Nov 2001.
    15. Luigi Zingales, 1997. "Corporate Governance," NBER Working Papers 6309, National Bureau of Economic Research, Inc.
    16. Smith, Clifford W, Jr & Warner, Jerold B, 1979. "Bankruptcy, Secured Debt, and Optimal Capital Structure: Comment," Journal of Finance, American Finance Association, vol. 34(1), pages 247-251, March.
    17. Klein, Benjamin & Crawford, Robert G & Alchian, Armen A, 1978. "Vertical Integration, Appropriable Rents, and the Competitive Contracting Process," Journal of Law and Economics, University of Chicago Press, vol. 21(2), pages 297-326, October.
    18. Barak Medina, 2003. "Augmenting the Value of Ownership by Protecting It Only Partially: The "Market-Overt" Rule Revisited," The Journal of Law, Economics, and Organization, Oxford University Press, vol. 19(2), pages 343-372, October.
    19. Cheffins, Brian R., 1997. "Company Law: Theory, Structure and Operation," OUP Catalogue, Oxford University Press, number 9780198764694.
    20. Smith, Clifford Jr. & Warner, Jerold B., 1979. "On financial contracting : An analysis of bond covenants," Journal of Financial Economics, Elsevier, vol. 7(2), pages 117-161, June.
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    More about this item

    Keywords

    theory of corporate law; shared ownership; property rights;
    All these keywords.

    JEL classification:

    • D23 - Microeconomics - - Production and Organizations - - - Organizational Behavior; Transaction Costs; Property Rights
    • G34 - Financial Economics - - Corporate Finance and Governance - - - Mergers; Acquisitions; Restructuring; Corporate Governance
    • K11 - Law and Economics - - Basic Areas of Law - - - Property Law
    • K22 - Law and Economics - - Regulation and Business Law - - - Business and Securities Law

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