Abstract

http://ssrn.com/abstract=874156
 


 



The Erosion of Rights by Past Breach


Omri Ben-Shahar


University of Chicago Law School


American Law and Economics Review, Vol. 1, No. 1, pp. 190-238, 1999

Abstract:     
Legal rights may erode as a result of past, uncontested, breach. In light of ongoing violations, the rightholder's lackluster enforcement may result in the loss of the entitlement. The doctrines of course of performance in contract law and adverse possession in property law are prominent examples of this widespread erosion phenomenon. In analyzing the effects of such laws, the article confronts two conflicting intuitions. On the one hand, the 'licence' to continue breach prospectively encourages opportunism. On the other hand, the risk of erosion may reinforce the rightholder's motivation to take antierosion measures, bolstering the credibility of the threat to enforce, thus better preserving the entitlement. The article proves that these two effects of erosion rules always balance out. The same amount of value will be extracted from the rightholder, irrespective of the law's erosion doctrine. The article also demonstrates the limits of this 'irrelevance' claim and the factors that may lead to its collapse. It applies the analysis to offer new perspectives on various prominent legal rules.

Accepted Paper Series





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Date posted: February 29, 2008  

Suggested Citation

Ben-Shahar, Omri, The Erosion of Rights by Past Breach. American Law and Economics Review, Vol. 1, No. 1, pp. 190-238, 1999. Available at SSRN: http://ssrn.com/abstract=874156

Contact Information

Omri Ben-Shahar (Contact Author)
University of Chicago Law School ( email )
1111 E. 60th St.
Chicago, IL 60637
United States
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