亚洲免费av电影一区二区三区,日韩爱爱视频,51精品视频一区二区三区,91视频爱爱,日韩欧美在线播放视频,中文字幕少妇AV,亚洲电影中文字幕,久久久久亚洲av成人网址,久久综合视频网站,国产在线不卡免费播放

        ?

        Contract Law Imperfection Cause and Rulings

        2016-04-29 00:00:00張祎萌
        今日財(cái)富 2016年31期

        Abstract:Contract is one of the foundations of modern society. With the development of contract law, the art of crafting contracts has evolved from a crude bargaining game to systematic economic theories. A common phenomenon is that contracts will have incomplete terms, or insensible terms. The reason is usually a mixture of two causes. Behind each imperfection, there are costs and gains in both negotiating and enforcing. When ruling cases about these contracts, the court will have to keep in mind such costs and gains, and process such imperfections accordingly. Sometimes, both parties even intentionally leave gaps in the contract, to minimize transaction costs. What cause this? I will explain it in the following essay, accompanying some ways that court might follow.

        Key Words:Imperfect contract;Allocating risk;Saving transaction costs;Ways to solve the imperfection

        Contract is one of the foundations of modern society. With the development of contract law, the art of crafting contracts has evolved from a crude bargaining game to systematic economic theories. A common phenomenon is that contracts will have incomplete terms, or insensible terms. The reason is usually a mixture of two causes: parties often do not have a comprehensive prediction of the future, and sometimes it is less expensive to leave a gap than to measure transaction costs at drafting time. Behind each imperfection, there are costs and gains in both negotiating and enforcing. When ruling cases about these contracts, the court will have to keep in mind such costs and gains, and process such imperfections accordingly.

        As the first factor to cause an imperfect contract, imperfect expectation of future risk is not rare in the real life. In fact, real contracts often allocate risks imperfectly although they have explained some risks in the content. No matter how rational the contracting parties are, there are still several small probability events that people wouldn’t have expected before the signing of a contract. For instance, hijacking incidence, a sudden outbreak of the war, even any unknown infectious disease and so on, all these items are able to affect the actual implementation of the contract. Therefore, some inevitable gaps are left, the contracts are always lack of full specific.

        In addition, there is also another possibility to lead an imperfect contract. Sometimes, contracting parties are able to anticipate almost every case before the signing, but several cases among them is nearly impossible to occur. Under such a situation, both contracting parties would not spend more time and more resources to consider how to deal with it in the contract, since each party seeks for the minimization of transaction costs. Therefore, some small probability events would be intentionally ignored in the contract. In a word, the expectations of risks held in people’s minds do not always include everything which could happen in the actual life.

        Sometimes, parties intentionally leave gaps in the contract, to minimize transaction costs. The contracts explicitly explain parts of specific attributes of the transaction costs. However, they do not explain other attributes that though are parts of the transaction costs are costly to measure, hence, the contracts are imperfect. Transaction costs, considered as the second point of the former question, could not be ignored by people. Moreover, as transaction costs increase, gaps would be left in the contract. Thus, with the existence of the transaction costs, the contract is seldom fully specified. Sometimes transaction costs could also cause several externalities, misinformation, or monopolies and so on. All the people want to do is to minimize transaction costs for approaching perfection.

        To minimize the transaction costs, we need to analyze if allocation of Ex ante risks is better than allocation of Ex post losses. Contracting parties aim at saving transaction costs by leaving gaps in the contract, when the expected cost of filling a gap is smaller than the actual cost of negotiating about every specific item. Therefrom, we get the final cost of allocating losses through using the cost of allocating Ex post losses multiples their probability, it is not difficult for us to find that it is always smaller than the costs of allocating Ex ante risks. In this way, contracting parties would be able to minimize the transaction costs.

        These factors demonstrate how and why contracts are usually not perfect. When such imperfections are presented in court, what choices does the court have? There are three major ways the court may follow: enforcing explicit terms disregarding the imperfection, applying default rules to fill in gaps, and regulating the contract by enforcing mandatory rules instead of contract terms.

        Contracts are almost always flawed somewhere, so sometimes the court may decide to just enforce the explicit terms of the contract as if the contract is perfect, disregarding the imperfections. Such tolerance is always necessary, because in real life, contracts are produced with certain time and cost limitations, and thus improbable to be fully exhaustive and complete. In most occasions of private transaction, not every imperfection can be sensibly fixed by filling gaps or replacing terms; in this case, the court is supposed to make judgements only based on the contract as written. Therefore, the court will consider the imperfect contraction as a perfect one, and then enforce every explicit term.

        To fill a gap, the court will use an instrument named default rules. As discussed above, when gaps are left intentionally, the parties are aimed to minimize transaction costs. In this case, the critical element is the bargain between both sides. From the perspective of the court, the major mission is to assist contracting parties in pursuing an efficient bargain instead of an inefficient one. Both parties will benefit from an efficient bargain from filling the gap, or even reach the maximum gain in the end. For instance, if the court imputes the terms which meet both preferences of contracting parties through only one bargain, the transaction cost will be minimum, which means the gain will reach the maximum. The court will evaluate efficiency of default rules by hypothetical bargain, finding out the terms that would be reached if the missing terms were negotiated when the contract was drafted. Essentially, the court will undertake the cost of performing the bargaining procedure, and thus the resulting bargain is more efficient than parties actually negotiating.

        When there are imperfections within the explicit terms, rather than having gaps, the court may decide to avoid the terms, and regulate the contract. To replace the explicit terms, the court will use an instrument named mandatory rules. In this case, the court will make a regulation to against imperfection. In other words, the court will distribute an ideal contract which is perfect, then using mandatory rules to describe the imperfect contract.

        Today, leaving imperfections and dealing with imperfections are all part of the economic theory of contract, and thus the parties of contracts and the court both tend to minimize costs and maximize gains. Through such model, production and enforcement of contracts are more efficient and realistic than a crude bargaining model.

        Reference:

        Law and Economics (6th Edition), Robert Cooter and Thomas Ulen, 2012

        Contract Theory and the Limits of Contract Law, Alan Schwartz and Robert E. Scott, 2003

        青青草免费手机视频在线观看| 久久亚洲国产成人精品v| 精品少妇后入一区二区三区| 国产一级黄色录像大片| 国产a√无码专区亚洲av| 超碰97人人做人人爱少妇| 国产欧美日韩图片一区二区| 99视频偷拍视频一区二区三区| 男女av一区二区三区| 亚洲日韩一区二区三区| 国产成人啪精品午夜网站| 日韩人妻免费一区二区三区| 色佬精品免费在线视频| 人妻少妇精品无码专区动漫| 久久久久成人亚洲综合精品| 日韩精品中文字幕免费人妻| 99人中文字幕亚洲区三| 亚洲女初尝黑人巨高清| 国产自产精品露脸刺激91在线| 尤物成av人片在线观看| 偷拍偷窥女厕一区二区视频| 三级特黄60分钟在线观看| 国产无码十八禁| 高清不卡av在线播放| 丰满少妇人妻久久久久久| 四虎成人精品无码永久在线| 亚洲高清在线观看免费视频 | 欧美日韩精品乱国产538| 国产成人激情视频在线观看| 国产一品二品三品精品在线| 性生交大片免费看淑女出招 | 人妻聚色窝窝人体www一区| 五月天婷婷综合网| 国产精品高清一区二区三区人妖| 亚洲精品无码精品mv在线观看| 天天摸日日摸狠狠添| 欧美日本视频一区| 手机在线看片国产人妻| 无码任你躁久久久久久久| 国产AV国片精品有毛| 久久少妇高潮免费观看|