Posted: 28 Sep 2010
Date Written: September 28, 2010
In several contract situations, parties exchange promises of future performance, creating reciprocal obligations. In this paper, we extend the standard models of contract remedies to consider the incentives created by contracts where both parties provide only executory consideration and where the parties’ obligations are yet to be performed. We show that the legal remedies that govern these contracts provide valuable enforcement mechanisms that are not available when parties enter into a contract where they exchange a promise for an actual performance. We show that when the values of the parties’ performances are interdependent, contracts with executory consideration create effort incentives that are superior to the incentives of contracts with executed consideration. In contracts with independent values, contracts with executory consideration also offer a valuable instrument to correct enforcement imperfections. Such imperfections include imperfect compensation and litigation costs.
Keywords: Executory Contracts, Remedies for Breach, Defense of Non-Performance, Preclusion Rule
JEL Classification: K12, K41
Suggested Citation: Suggested Citation
Parisi, Francesco and Luppi, Barbara and Fon, Vincy, Optimal Remedies for Bilateral Contracts (September 28, 2010). Journal of Legal Studies, Forthcoming; Minnesota Legal Studies Research Paper No. 10-56. Available at SSRN: https://ssrn.com/abstract=1684091