Unbundling Efficient Breach

39 Pages Posted: 10 Aug 2014 Last revised: 19 Dec 2014

See all articles by Maria Bigoni

Maria Bigoni

University of Bologna - Department of Economics; IZA Institute of Labor Economics

Stefania Bortolotti

MPI for Research on Collective Goods

Francesco Parisi

University of Minnesota - Law School; University of Bologna

Ariel Porat

Tel Aviv University; University of Chicago - Law School

Date Written: August 8, 2014


Current law and economics scholarship analyzes efficient breach cases monolithically. The standard analysis holds that breach is efficient when performance of a contract generates a negative surplus for the parties. However, by simplistically grouping efficient breach cases as of a single kind, the prior literature overlooks some important factors that meaningfully distinguish types of efficient breach, such as effects of the breach on productive and allocative efficiency, restraints on the incentive to breach, information-forcing, and competitive effects of the right to breach. We argue that these factors are important for the development of a more nuanced economic theory of efficient breach. More specifically, we contend that there are relevant economic considerations that distinguish breaches carried out for the pursuit of a gain (“gain-seeking breaches”) from breaches meant to prevent a loss (“loss-avoiding breaches”) and breaches carried out by the seller from those carried out by a buyer. We show that the economic argument for loss-avoiding efficient breach is stronger than for gain-seeking efficient breach especially when the breaching party is the seller. From this analysis, we generated several hypotheses, which we tested in an incentivized lab experiment. The data show that test participants’ reactions differ with respect to gain-seeking and loss-avoiding breaches, exhibiting behavior in line with our theoretical predictions, giving us insight into the preferences and expectations of ordinary people in cases of breach, and being correlated with the apparent intuitions of judges in deciding efficient breach cases.

Suggested Citation

Bigoni, Maria and Bortolotti, Stefania and Parisi, Francesco and Porat, Ariel, Unbundling Efficient Breach (August 8, 2014). University of Chicago Coase-Sandor Institute for Law & Economics Research Paper No. 695, Minnesota Legal Studies Research Paper No. 14-57, Available at SSRN: https://ssrn.com/abstract=2477973 or http://dx.doi.org/10.2139/ssrn.2477973

Maria Bigoni

University of Bologna - Department of Economics ( email )

Piazza Scaravilli 2
Bologna, Bologna 40126
+390512098134 (Phone)

HOME PAGE: http://https://www.unibo.it/sitoweb/maria.bigoni/en

IZA Institute of Labor Economics ( email )

P.O. Box 7240
Bonn, D-53072

Stefania Bortolotti

MPI for Research on Collective Goods ( email )

Kurt-Schumacher-Str. 10
D-53113 Bonn, 53113

Francesco Parisi

University of Minnesota - Law School ( email )

229 19th Avenue South
Minneapolis, MN 55455
United States

University of Bologna ( email )

Piazza Scaravilli 1
40126 Bologna, fc 47100

Ariel Porat (Contact Author)

Tel Aviv University ( email )

Ramat Aviv
Tel Aviv, 69978
972-3-6408283 (Phone)
972-3-6407260 (Fax)

HOME PAGE: http://english.tau.ac.il/profile/porata

University of Chicago - Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States

HOME PAGE: http://www.law.uchicago.edu/faculty/porat

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