Directors' Duty to Creditors and the Debt Contract
Journal of Business & Technology Law, Vol. 1, No. 2, p. 553, 2007
54 Pages Posted: 22 Jan 2008
Under the current model of corporate fiduciary law, informational asymmetry between managers and creditors makes the debt contract inadequate to efficiently govern the debtor-creditor relationship. More specifically, as currently devised, the debt contract fails to prevent managerial opportunism, that is, the managers' tendency to increase the investment's risk ex post. Anticipating this contract's failure,creditors ask for higher interest rates. Moreover, because of the scarcity of credible information, they tend to pool firms in general risk categories and price debt on the basis of the average risk increase pursued within each category. As a result, social costs arise and credit capital is inefficiently allocated.
A governance model providing for a permissive regime of directors' duty to creditors and a rule of textualist interpretation of the debt contract are the legal tools I propose to attempt to redress the existing contractual inefficiency. By sanctioning directors with personal liability for increasing the level of risk contractually accepted by creditors, the proposed duty would serve: (i) as a bonding mechanism to induce directors to fulfill the contract and refrain from managerial opportunism; and (ii) to make the debt contract a credible signal on corporate risk. Paired to the duty's existence, the adoption of a textualist interpretative rule, which mandates to consider accepted by creditors any risk they have not contractually excluded or limited, would (i) give both parties the right incentives to write more state-contingent contracts; and (ii) reduce uncertainty in legal relationships by ruling out the possibility of ex post completion of the contract (and of the duty itself) by the third adjudicator. Ultimately, the model I propose aims at achieving a two-fold purpose. On the one hand, it attempts to make the credit market better able to price debt on the basis of firms' specific risks, i.e., to move the market from the existing pooling equilibrium to separating equilibria. On the other, it aims at enabling parties to contract so as to maximize the ex ante value of their exchanges.
Keywords: corporate governance, fiduciary duties, incomplete contracts, contract theory, covenants
JEL Classification: K0, K12, K22
Suggested Citation: Suggested Citation