Sleeping Giant Contracts

28 Pages Posted: 25 Aug 2019 Last revised: 7 Oct 2019

See all articles by G. Mitu Gulati

G. Mitu Gulati

Duke University School of Law

Marcel Kahan

New York University School of Law; European Corporate Governance Institute

Date Written: August 25, 2019

Abstract

The standard model of contracting assumes that parties agree to the terms optimal for them. Furthermore, if courts misinterpret this language, parties will correct it in subsequent contracts to ensure that future courts don’t make the same error. Scholars have observed, however, that the foregoing assumptions often do not match behavior–particularly in the world of boilerplate contracts. Why not? We examine the aftermath of a 2017 case, Wilmington Saving v. Cash America, to unpack some of the possible reasons for contract stickiness.

We find evidence of a phenomenon that has not previously been identified as a cause of contract stickiness. Certain contracts involve, on one side, sophisticated actors who are nevertheless not represented by their own lawyers. In these contracts, which we term “sleeping giant contracts,” there is sometimes a gap between lawyers’ understanding of a provision, which is based on their legal expertise and the fine print of a contract, and the understanding of market participants, which can be vague and impressionistic. Interviews with lawyers and investors suggest the presence of such a gap with respect to the provisions at issue in Wilmington Saving v. Cash America. The potential for such gaps in “sleeping giant contract” has implications for the effect and function of courts’ interpretations of boilerplate contract terms.

Keywords: corporate bonds, contract stickiness, Wilmington v. Cash America, make-whole, boilerplate

JEL Classification: K12, K22, G32, Z13

Suggested Citation

Gulati, Gaurang Mitu and Kahan, Marcel, Sleeping Giant Contracts (August 25, 2019). Duke Law School Public Law & Legal Theory Series No. 2019-62; NYU Law and Economics Research Paper No. 19-35. Available at SSRN: https://ssrn.com/abstract=3442355 or http://dx.doi.org/10.2139/ssrn.3442355

Gaurang Mitu Gulati (Contact Author)

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States

Marcel Kahan

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States
212-998-6268 (Phone)
212-995-4341 (Fax)

European Corporate Governance Institute ( email )

c/o ECARES ULB CP 114
B-1050 Brussels
Belgium

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