Private information and the option to not sue: A reevaluation of contract remedies

Ronen Avraham, Zhiyong Liu

Research output: Contribution to journalArticlepeer-review

Abstract

In this paper, we study contracts with two-sided incomplete information. Prior literature on contract remedies does not formally account for the nonbreaching party's option to not sue for damages upon breach, when her expected payoff from suing is negative, given the contractual terms and her private information about her post-breach loss. With this option incorporated into the analysis, we show that: First, courts should commit to awarding fixed damages, because awarding flexible damages based on ex post information will distort the incentives to breach. This result is not driven by the information-forcing effect of basing damages on ex ante expectations, la Hadley vs. Baxendale, rather it is driven by the endogenous decision to litigate breach. Second, the option of acquiescing to the breach expands the breach set under specific performance, which can be more efficient than other remedies. Third, the efficiency advantage of ex ante expectation damages over ex post actual damages is further enhanced when we account for the possibility of renegotiation.

Original languageEnglish
Pages (from-to)77-102
Number of pages26
JournalJournal of Law, Economics, and Organization
Volume28
Issue number1
DOIs
StatePublished - Apr 2012
Externally publishedYes

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