Incomplete contracts

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In economic theory, the field of contract theory can be subdivided in the theory of complete contracts and the theory of incomplete contracts.

Contents

In contract law, an incomplete contract is one that is defective or uncertain in a material respect. A complete contract in economic theory means a contract which provides for the rights, obligations and remedies of the parties in every possible state of the world. [1] However, since the human mind is a scarce resource and the mind cannot collect, process, and understand an infinite amount of information, economic actors are limited in their rationality (the limitations of the human mind in understanding and solving complex problems) and one cannot anticipate all possible contingencies. [2] [3] Or perhaps because it is too expensive to write a complete contract, the parties will opt for a "sufficiently complete" contract. [4] In short, every contract is incomplete for a variety of reasons and limitations. The incompleteness of a contract also means that the protection it provides may be inadequate. [5] Even if a contract is incomplete, the legal validity of the contract cannot be denied, and an incomplete contract does not mean that it is unenforceable. The terms and provisions of the contract still have influence and are binding on the parties to the contract. As for contractual incompleteness, the law is concerned with when and how a court should fill gaps in a contract when there are too many or too uncertain to be enforceable, and when it is obliged to negotiate to make an incomplete contract fully complete or to achieve the desired final contract. [1]

The incomplete contracting paradigm was pioneered by Sanford J. Grossman, Oliver D. Hart, and John H. Moore. In their seminal contributions, Grossman and Hart (1986), Hart and Moore (1990), and Hart (1995) argue that in practice, contracts cannot specify what is to be done in every possible contingency. [6] [7] [8] At the time of contracting, future contingencies may not even be describable. Moreover, parties cannot commit themselves never to engage in mutually beneficial renegotiation later on in their relationship. Thus, an immediate consequence of the incomplete contracting approach is the so-called hold-up problem. [9] Since at least in some states of the world the parties will renegotiate their contractual arrangements later on, they have insufficient incentives to make relationship-specific investments (since a party's investment returns will partially go to the other party in the renegotiations). Oliver Hart and his co-authors argue that the hold-up problem may be mitigated by choosing a suitable ownership structure ex-ante (according to the incomplete contracting paradigm, more complex contractual arrangements are ruled out). Hence, the property rights approach to the theory of the firm can explain the pros and cons of vertical integration, thus providing a formal answer to important questions regarding the boundaries of the firm that were first raised by Ronald Coase (1937). [10]

The incomplete contracting approach has been subject of a still ongoing discussion in contract theory. In particular, some authors such as Maskin and Tirole (1999) argue that rational parties should be able to solve the hold-up problem with complex contracts, while Hart and Moore (1999) point out that these contractual solutions do not work if renegotiation cannot be ruled out. [11] [12] [13] Some authors have argued that the pros and cons of vertical integration can sometimes also be explained in complete contracting models. [14] The property rights approach based on incomplete contracting has been criticized by Williamson (2000) because it is focused on ex-ante investment incentives, while it neglects ex-post inefficiencies. [15] It has been pointed out by Schmitz (2006) that the property rights approach can be extended to the case of asymmetric information, which may explain ex-post inefficiencies. [16] The property rights approach has also been extended by Chiu (1998) and DeMeza and Lockwood (1998), who allow for different ways to model the renegotiations. [17] [18] In a more recent extension, Hart and Moore (2008) have argued that contracts may serve as reference points. [19] The theory of incomplete contracts has been successfully applied in various contexts, including privatization, [20] [21] international trade, [22] [23] management of research & development, [24] [25] allocation of formal and real authority, [26] advocacy, [27] and many others.

The 2016 Nobel Prize in Economics was awarded to Oliver D. Hart and Bengt Holmström for their contribution to contract theory, including incomplete contracts. [28]

In economic theory

In 1986, Grossman and Hart (1986) used incomplete contract theory in their seminal paper on the costs and benefits of vertical integration to answer the question "What is a firm and what determines its boundaries?". The Grossman-Hart theory of property rights is the first to explain[ citation needed ] in a straightforward manner why markets are so important in the context of organizational choice. The advantage of non-integrated markets is that the owners (entrepreneurs) can exercise their control, while the advantage of market transactions also stems from the power of restraint conferred by ownership. [29] The fact that economic actors are only finitely rational and cannot foresee all possible contingencies is perhaps at the heart of the problem. [30] However, as this uncertain state of nature or behavior cannot be written into an enforceable contract, when the contract is incomplete, not all uses of the asset can be specified in advance and any contract negotiated in advance must leave some discretion as to the use of the asset, with the 'owner' of the company being the party to whom residual control is allocated at the contract stage. Grossman and Hart claim that the essence of the firm lies in the decision-making power conferred by the ownership of its assets. In a world of incomplete contracts, decision-making power plays a key role in determining the incentives of owners. [31] Grossman and Hart believe that the optimal allocation or governance structure of property rights is the allocation that minimizes efficiency losses. Therefore, where Party A's investment is more important than Party B's, it is preferable to allocate title to the asset to Party A, even if this discourages Party B's investment. [32] Incomplete contractual/property rights approach gives rise to theories of ownership and vertical integration, and it also directly addresses the question of what constitutes a firm. Both Grossman and Hart consider the firm to be a collection of assets over which the owners have residual control. [3]

In 1990, Oliver Hart and John Moore published another article, "Property Rights and the Nature of the Firm", which provided a framework for addressing when transactions should take place within the firm and when they should take place through the market. [33] The essence of the 1986 Grossman-Hart model is about the optimal allocation of the constraining forces conferred by ownership, and its model of property rights is about the allocation of assets between individuals (entrepreneurs) rather than firms. Whereas the Hart-Moore model of 1990 extends this optimal allocation of traction, property rights theory clarifies the content of the asset allocation assumptions between firms and identifies a firm with the assets that its owners control. [34] One of Hart-Moore's key findings suggests an explanation for why firms, rather than workers, tend to own most of the non-human assets used to produce goods and services: complementary assets should be owned by one person. [31]

New ideas

Incomplete contracts can create scenarios that lead to inefficient investments and market failures, but incompleteness is essentially a feasibility constraint. The 'strategic ambiguity hypothesis' assumes that the optimal formal contract may be deliberately incomplete. Companies use strategic ambiguity to circumvent legal constraints. Invalidate these agreements and make the law insufficient to prevent their formation and performance. [4]

Limitations

Contracts have many restrictions in terms. Incomplete contracts are also limited by them. Contractual terms are the specific details of an agreement, including the rights and obligations of the parties. Contractual terms are broadly divided into two types, express terms and implied terms. Express terms are included in the signed contract, or a caveat that is reasonably noticeable to the other party. Implicit terms include those implied by the court and any relevant legal provisions. [35]

Terms implied by the Court

Courts are often willing to imply a term in a settled contract to "fill in the gaps" as long as it is:

Example:

Statutory implied terms

Example：

ACL’s (Australian Consumer Law) implied terms in consumer contracts are intended to protect the buyer, and there is an implied term in every contract for the sale of goods. Conditions of ownership by the seller, implies the right to sell these goods to the buyer: [37]

Unenforceable terms

  1. If one of the parties to the contract is a minor or a person lacking mental capacity, that party will not have the legal capacity to contract. [38] Only if both contract parties have the legal capacity to sign a contract, contracts are only enforceable.
  2. Some contracts are classified by common law as illegal and unenforceable:

——Criminal or tortious contracts [39]

——Contracts to promote corruption in public office [40]

——Contracts intended to avoid paying taxes [41]

——Contracts to prevent or delay the administration of justice [42]

The effect of a breach of a statutory provision on the validity and enforceability of a contract depends on the wording of the regulation itself. [43] An agreement may just be illegal because it violates a statutory prohibition. [44]

See also

Related Research Articles

"The Nature of the Firm" (1937) is an article by Ronald Coase. It offered an economic explanation of why individuals choose to form partnerships, companies, and other business entities rather than trading bilaterally through contracts on a market. The author was awarded the Nobel Memorial Prize in Economic Sciences in 1991 in part due to this paper. Despite the honor, the paper was written when Coase was an undergraduate and he described it later in life as "little more than an undergraduate essay."

In economics and related disciplines, a transaction cost is a cost in making any economic trade when participating in a market. The idea that transactions form the basis of economic thinking was introduced by the institutional economist John R. Commons in 1931, and Oliver E. Williamson's Transaction Cost Economics article, published in 2008, popularized the concept of transaction costs. Douglass C. North argues that institutions, understood as the set of rules in a society, are key in the determination of transaction costs. In this sense, institutions that facilitate low transaction costs, boost economic growth.

<span class="mw-page-title-main">Vertical integration</span> When a company owns its supply chain

In microeconomics, management and international political economy, vertical integration is an arrangement in which the supply chain of a company is integrated and owned by that company. Usually each member of the supply chain produces a different product or (market-specific) service, and the products combine to satisfy a common need. It contrasts with horizontal integration, wherein a company produces several items that are related to one another. Vertical integration has also described management styles that bring large portions of the supply chain not only under a common ownership but also into one corporation.

From a legal point of view, a contract is an institutional arrangement for the way in which resources flow, which defines the various relationships between the parties to a transaction or limits the rights and obligations of the parties.

A complete contract is an important concept from contract theory.

In law and economics, the Coase theorem describes the economic efficiency of an economic allocation or outcome in the presence of externalities. The theorem is significant because, if true, the conclusion is that it is possible for private individuals to make choices that can solve the problem of market externalities. The theorem states that if the provision of a good or service results in an externality and trade in that good or service is possible, then bargaining will lead to a Pareto efficient outcome regardless of the initial allocation of property. A key condition for this outcome is that there are sufficiently low transaction costs in the bargaining and exchange process. This 'theorem' is commonly attributed to Nobel Prize laureate Ronald Coase.

<span class="mw-page-title-main">State ownership</span> Ownership of industry, assets, or businesses by a public body

State ownership, also called public ownership or government ownership, is the ownership of an industry, asset, or enterprise by the state or a public body representing a community, as opposed to an individual or private party. Public ownership specifically refers to industries selling goods and services to consumers and differs from public goods and government services financed out of a government's general budget. Public ownership can take place at the national, regional, local, or municipal levels of government; or can refer to non-governmental public ownership vested in autonomous public enterprises. Public ownership is one of the three major forms of property ownership, differentiated from private, collective/cooperative, and common ownership.

Build–operate–transfer (BOT) or build–own–operate–transfer (BOOT) is a form of project delivery method, usually for large-scale infrastructure projects, wherein a private entity receives a concession from the public sector to finance, design, construct, own, and operate a facility stated in the concession contract. The private entity will have the right to operate it for a set period of time. This enables the project proponent to recover its investment and operating and maintenance expenses in the project.

<span class="mw-page-title-main">Option contract</span>

An option contract, or simply option, is defined as "a promise which meets the requirements for the formation of a contract and limits the promisor's power to revoke an offer". Option contracts are common in relation to property and in professional sports.

The theory of the firm consists of a number of economic theories that explain and predict the nature of the firm, company, or corporation, including its existence, behaviour, structure, and relationship to the market. Firms are key drivers in economics, providing goods and services in return for monetary payments and rewards. Organisational structure, incentives, employee productivity, and information all influence the successful operation of a firm in the economy and within itself. As such major economic theories such as transaction cost theory, managerial economics and behavioural theory of the firm will allow for an in-depth analysis on various firm and management types.

In economics, the hold-up problem is central to the theory of incomplete contracts, and shows the difficulty in writing complete contracts. A hold-up problem arises when two factors are present:

  1. Parties to a future transaction must make noncontractible relationship-specific investments before the transaction takes place.
  2. The specific form of the optimal transaction cannot be determined with certainty beforehand.

Common ownership refers to holding the assets of an organization, enterprise or community indivisibly rather than in the names of the individual members or groups of members as common property.

Sanford "Sandy" Jay Grossman is an American economist and hedge fund manager specializing in quantitative finance. Grossman’s research has spanned the analysis of information in securities markets, corporate structure, property rights, and optimal dynamic risk management. He has published widely in leading economic and business journals, including American Economic Review, Journal of Econometrics, Econometrica, and Journal of Finance. His research in macroeconomics, finance, and risk management has earned numerous awards. Grossman is currently Chairman and CEO of QFS Asset Management, an affiliate of which he founded in 1988. QFS Asset Management shut down its sole remaining hedge fund in January 2014.

<span class="mw-page-title-main">Oliver Hart (economist)</span> American economist

Sir Oliver Simon D'Arcy Hart is a British-born American economist, currently the Lewis P. and Linda L. Geyser University Professor at Harvard University. Together with Bengt R. Holmström, he received the Nobel Memorial Prize in Economic Sciences in 2016.

New Institutional Economics (NIE) is an economic perspective that attempts to extend economics by focusing on the institutions that underlie economic activity and with analysis beyond earlier institutional economics and neoclassical economics. Unlike neoclassical economics, it also considers the role of culture and classical political economy in economic development.

<span class="mw-page-title-main">Bengt Holmström</span> Finnish economist and Nobel laureate (born 1949)

Bengt Robert Holmström is a Finnish economist who is currently Paul A. Samuelson Professor of Economics (Emeritus) at the Massachusetts Institute of Technology. Together with Oliver Hart, he received the Central Bank of Sweden Nobel Memorial Prize in Economic Sciences in 2016.

Property rights are constructs in economics for determining how a resource or economic good is used and owned, which have developed over ancient and modern history, from Abrahamic law to Article 17 of the Universal Declaration of Human Rights. Resources can be owned by individuals, associations, collectives, or governments.

Innovation management is a combination of the management of innovation processes, and change management. It refers to product, business process, marketing and organizational innovation. Innovation management is the subject of ISO 56000 series standards being developed by ISO TC 279.

Organizational economics involves the use of economic logic and methods to understand the existence, nature, design, and performance of organizations, especially managed ones.

Yeon-Koo Che (Korean: 최연구) is a Korean American economist. He is the Kelvin J. Lancaster Professor of Economic Theory at Columbia University, a position he held since 2009. Prior to joining Columbia in 2005, he was a professor at University of Wisconsin-Madison.

References

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  3. 1 2 Aghion, Philippe; Holden, Richard (2011-05-01). "Incomplete Contracts and the Theory of the Firm: What Have We Learned over the Past 25 Years?". Journal of Economic Perspectives. 25 (2): 181–197. doi: 10.1257/jep.25.2.181 . ISSN   0895-3309.
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  15. ↑ Williamson, Oliver E (2000). "The New Institutional Economics: Taking Stock, Looking Ahead". Journal of Economic Literature. 38 (3): 595–613. CiteSeerX   10.1.1.128.7824 . doi:10.1257/jel.38.3.595. ISSN   0022-0515.
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  31. 1 2 Holmström, Bengt (2016), Aghion, Philippe; Dewatripont, Mathias; Legros, Patrick; Zingales, Luigi (eds.), "Grossman-Hart (1986) as a Theory of Markets", The Impact of Incomplete Contracts on Economics, New York: Oxford University Press, doi:10.1093/acprof:oso/9780199826223.001.0001, ISBN   978-0-19-982622-3 , retrieved 2022-04-26
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