Posted: 14 Nov 2001 Last revised: 1 Apr 2021

See all articles by Robert D. Cooter

Robert D. Cooter

University of California, Berkeley - School of Law

Ariel Porat

Tel Aviv University; University of Chicago - Law School


In standard models of contracts, efficient incentives require the promisor to pay damages for non-performance and the promisee to receive no damages. To give efficient incentives to both parties, we propose a novel contract requiring the promisor to pay damages for nonperformance to a third party, not to the promisee. In exchange for the right to damages, the third party pays the promisor and promisee in advance before performance or nonperformance occurs. We call this novel contract "anti-insurance" because it strengthens incentives by magnifying risk, whereas insurance erodes incentives by spreading risk. Anti-insurance is based on the general principle that when several parties jointly create risk, efficient incentives typically require each party to bear the full risk. Without a third party, the most that can be achieved is to divide the risk among the parties. By improving incentives, anti-insurance contracts can create value and benefit everyone as required for a voluntary exchange.

JEL Classification: A1, D0, D8, K0, K10, K12, K13, K42, L0

Suggested Citation

Cooter, Robert D. and Porat, Ariel, Anti-Insurance. 31 Journal of Legal Studies 203 (2002), UC Berkeley Public Law Research Paper No. 71, Available at SSRN:

Robert D. Cooter

University of California, Berkeley - School of Law ( email )

Berkeley, CA 94720-7200
United States
510-642-0503 (Phone)
510-642-3767 (Fax)

Ariel Porat (Contact Author)

Tel Aviv University ( email )

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


University of Chicago - Law School ( email )

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


Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Abstract Views
PlumX Metrics