In this article it is demonstrated that voluntary bargaining over a collective decision under asymmetric information may well lead to ex post efficiency if the default decision is non-trivial. It is argued that the default decision may be interpreted as a simple contract that the parties have written ex ante. This result is used in order to show that simple unconditional contracts which are renegotiated may allow the hold-up problem to be solved, even if the parties' valuations are private information.
A vexing problem in contract law is modification. Two parties sign a contract but before they fully perform, they modify the contract. Should courts enforce the modified agreement? A private remedy is for the parties to write a contract that is robust to hold-up or that makes the facts relevant to modification verifiable. Provisions accomplishing these ends are renegotiation-design and revelation mechanisms. But implementing them requires commitment power. Conventional contract technologies to ensure commitment – liquidated damages – are disfavored by courts and themselves subject to renegotiation. Smart contracts written on blockchain ledgers offer a solution. We explain the basic economics and legal relevance of these technologies, and we argue that they can implement liquidated damages without courts. We address the hurdles courts may impose to use of smart contracts on blockchain and show that sophisticated parties' ex ante commitment to them may lead courts to allow their use as pre-commitment devices.
In the early models of incomplete contract neither party used to invest in the subject matter of the contract; those models primarily kept their focus on analyzing the effect of legal rules on parties' incentives to trade or to breach. The modern models stretched beyond that to include value enhancing investments into its purview and establish an important result: (legal) penalties often are necessary to induce efficient investment; otherwise 'hold-up' (underinvestment) a general phenomenon when contracts are incomplete. But most of these models' findings are limited to typically symmetric or complete information scenario. In reality, the contracting parties usually possess some non-contractible private information either on their reliance or on their out side trading options or both (since either it is costly to describe or non-verifiable) and there may be ex-ante uncertainty associated with their valuations. So far asymmetric information has played a very limited role in the analysis of hold up problem. Therefore, in light of new and asymmetric information that the parties expected to realize subsequent to a binding contract, a systematic analysis has been attempted to see - first, how the legal remedies can solve hold up problem when parties also bear ex ante private information; secondly, how the courts of law can play a greater role than that has been realized. Focus remains on the ex-ante design of the contract, which would serve as an implicit substitute to complete contracts. Under asymmetric participation to contract, one of our main results shows that although the expectation damage remedy maximizes the social surplus for the parties across different dimensions of asymmetry (uncertainty) but induces excessive reliance. It is also found that party designed liquidated damage remedy is superior to all other court imposed remedies when one-sided asymmetry is concern. Finally we show that when dual asymmetry (uncertainty) is present in a contracting situation a high damage measure (even higher that expectation damage) induces efficient reliance by the parties. These results bear serious implications for various contract doctrines and debates.
Optimal contracts between a buyer and a seller who trade multiple goods under asymmetric information are considered. The seller makes sequences of unobservable investments, and then realizes the value of the goods. The investment level and value of goods are private information for the seller and the buyer respectively. In this situation, although the parties can write complete contracts, a hold-up problem exists. It is shown that each good is not traded sequentially in the second-best contract, but they are treated independently or as one bundled good. Dynamic contracts cannot solve the hold-up problem.
Quot;Buyer-optionquot; contracts, in which the buyer selects the product variant to be traded and chooses whether to accept delivery, are often used to solve holdup problems. We present a simple game that focuses sharply on subgames in which the buyer proposes inefficient actions in order to improve his bargaining position. We argue for one of several alternative ways to model this situation. We then apply that modeling choice to recent models of the foundations of incomplete contracts and show that a buyer-option contract is sufficient to induce first-best outcomes.
In this article, we analyze the canonical hold-up model of Hart and Moore under the assumption that the courts can verify delivery of the good by the seller. It is shown that no further renegotiation design is necessary to achieve the first best: simple option contracts, which give the seller the right to take the delivery decision and specify payments depending on whether delivery takes place, allow implementation of efficient investment decisions and efficient trade.
