Regulating Contract Formation: Precontractual Reliance, Sunk Costs, and Market Structure

49 Pages Posted: 17 Feb 2006

See all articles by Barak Medina

Barak Medina

Hebrew University of Jerusalem - Faculty of Law

Ofer Grosskopf

Tel-Aviv University Faculty of Law

Date Written: February 2006

Abstract

This article challenges the plausibility of one of the cornerstones of the law and economics literature — the prospect of under-investment in precontractual reliance (PCR). It shows that a negotiating party may well be motivated to invest in PCR not only through her expectation to extract the benefits that the investment yields (Added-Value Motivation), but also through the effect of the investment on her position vis-à-vis her competitors (Competition-Based Motivation). It further demonstrates that the Competition-Based Motivation is frequently sufficient to induce optimal PCR, even without appropriate contractual provisions or legal intervention. Following this analysis several normative implications are suggested, key of which is the argument that legal intervention, which is aimed at encouraging PCR, is generally unwarranted. However, the discussion does not yield an unrestricted support of laissez-faire policy, of avoiding regulating the bargaining process. It shows that efficiency considerations may justify legal intervention that aims mainly to prevent over-investment in PCR. Specifically, legal intervention may be required to deter one side from illegitimately exploiting the competition between his potential contracting partners and to achieve optimal allocation of transferable PCR.

Keywords: precontractual reliance, contract formation, sunk cost

JEL Classification: K12

Suggested Citation

Medina, Barak and Grosskopf, Ofer, Regulating Contract Formation: Precontractual Reliance, Sunk Costs, and Market Structure (February 2006). Available at SSRN: https://ssrn.com/abstract=883323 or http://dx.doi.org/10.2139/ssrn.883323

Barak Medina (Contact Author)

Hebrew University of Jerusalem - Faculty of Law ( email )

Mount Scopus
Mount Scopus, IL 91905
Israel

Ofer Grosskopf

Tel-Aviv University Faculty of Law ( email )

Ramat Aviv
Tel Aviv, 69978
Israel

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