Abstract
This paper concerns companies that sell commodities and are in their initial stages of formation and growth. Such companies will often face severe difficulties due to the banking system’s unwillingness to finance their activities before they are able to develop sufficient credit histories. When faced with a loss contract, such a company may prefer to breach and litigate simply in order to gain time before having to pay off its debt, thereby preventing immediate insolvency. We have designed a new financial tool to eliminate this incentive to willfully litigate. Under this mechanism, the seller undertakes an obligation to pay a bank the amount of the buyer’s damages if the seller does not deliver the good on delivery day in accordance with the contract and law. The bank, in turn, undertakes to pay the buyer the amount of her damages if received by the bank. The effect of this mechanism is to shift the buyer’s entitlement to the bank. This increases the seller’s cost of willful litigation: if the seller chooses to breach he will prefer paying the buyer’s damages to the bank in order to avoid any indication of default on the bank’s records, since such an indication will affect his credit rating and access to financial markets in the future. In addition, the mechanism gives the seller an incentive to breach the contract if and only if the contract becomes ex-post inefficient. We also demonstrate ex-ante benefits from the mechanism: by eliminating the risk of willful litigation, established buyers may be willing to raise the contract price, thereby increasing the probability of newcomers’ survival. The mechanism also enables the banking system to screen new companies according to their quality, and use their contracts as collateral. Ultimately, this can result in the newcomer achieving financial stability earlier.
Acknowledgment
The authors wish to thank Ronen Avraham, Jacob Boudoukh, Barak Medina, Francesco Parisi, Ariel Porat, Yuval Procaccia, Avi Weiss and participants in the Economic Analysis of Litigation Workshop, University of Catania, participants in the Conference of the European Association of Law and Economics (EALE) in Aix-en-Provance, and participants in the law and economics workshops at Tel-Aviv University and at Bar-Ilan University for their helpful comments and Hanan Cidor for useful research assistance.
References
Aghion, P. , T.Fally, and S.Scarpetta. 2007. “Credit Constraints as a Barrier to the Entry and Post-Entry Growth of Firms,” 22Economic Policy731–779.Search in Google Scholar
Ayres, I . 2005. Optional Law: The Structure of Legal Entitlements. Chicago, IL: University of Chicago Press.Search in Google Scholar
Ayres, I. , and E. L.Talley. 1995. “Solomonic Bargaining: Dividing a Legal Entitlement to Facilitate Coasean Trade,” 104Yale Law Journal1027–1117.Search in Google Scholar
Barron, J. M. , and M.Staten. 2003. “The Value of Comprehensive Credit Reports: Lessons from the U.S. Experience,” manuscript, available at: http://www.privacyalliance.org/resources/staten.pdf.Search in Google Scholar
Bartelsman, E. J. , J.Haltiwanger, and S.Scarpetta. 2004. “Microeconomic Evidence of Creative Destruction in Industrial and Developing Countries,” Discussion Paper No. 04-114/3, Tinbergen Institute, available at: http://hdl.handle.net/10419/86370.Search in Google Scholar
Bebchuk, L. A . 1988. “Suing Solely to Extract a Settlement Offer,” 17Journal of Legal Studies437–449.Search in Google Scholar
Bebchuk, L. A. , and S.Shavell. 1991. “Information and the Scope of Liability for Breach of Contract: The Rule of Hadley v. Baxendale,” 7Journal of Law, Economics & Organization284–312.Search in Google Scholar
Ben-Shahar, O. , and C. E.Schneider. 2014. More Than You Wanted to Know: The Failure of Mandated Disclosure. Princeton, NJ: Princeton University Press.Search in Google Scholar
Berger, A. N. , and G. F.Udell. 1995. “Relationship Lending and Lines of Credit in Small Firm Finance,” 68Journal of Business351–381.Search in Google Scholar
Berger, A. N. , and G. F.Udell. 1998. “The Economics of Small Business Finance: The Roles of Private Equity and Debt Markets in the Financial Growth Cycle,” 22Journal of Banking & Finance613–673.Search in Google Scholar
Bernstein, L . 1992. “Opting Out Of the Legal System: Extralegal Contractual Relations in the Diamond Industry,” 21Journal of Legal Studies115–157.Search in Google Scholar
Blegvad, B. -M . 1990. “Commercial Relations, Contract, and Litigation in Denmark: A Discussion of Macaulay’s Theories,” 24Law & Society Review397–412.Search in Google Scholar
Board of Governors of the Federal Reserve System. 2007. Report to the Congress on the Availability of Credit to Small Businesses, available at: http://www.federalreserve.gov/boarddocs/rptcongress/smallbusinesscredit/sbfreport2007.pdf.Search in Google Scholar
Bodie, Z. , A.Kane, and A.Marcus. 2014. Investments, 10th Global ed. New York, NY: McGraw-Hill Education.Search in Google Scholar
Brown, M. , and C.Zehnder. 2007. “Credit Reporting, Relationship Banking, and Loan Repayment,” 39Journal of Money, Credit and Banking1883–1918.Search in Google Scholar
Brown, M. , and C.Zehnder. 2008. “The Emergence of Information Sharing in Credit Markets,” IEER Working Paper No. 317, University of Zurich, available at: http://ssrn.com/abstract=922661.Search in Google Scholar
Cooter, R. , and A.Porat. 2002. “‘Anti-Insurance’,” 31Journal of Legal Studies203–232.Search in Google Scholar
Diamond, D . 1991. “Monitoring and Reputation: The Choice Between Bank Loans and Directly Placed Debt,” 99Journal of Political Economics688–721.Search in Google Scholar
Dunworth, T. , and J.Rogers. 1996. “Corporations in Courts: Big Business Litigation in U.S. Federal Courts, 1971–1991,” 21Law Social Inquiry497–592.Search in Google Scholar
Economic Report of the President. 2011. available at: http://www.whitehouse.gov/administration/eop/cea/economic-report-of-the-President/2011.Search in Google Scholar
Fulmer, J. G. , T. A.Gavin, and W. J.Bertin. 1991–1992. “What Factors Influence the Lending Decision: A Survey of Commercial Loan Officers,” 7Commercial Lending Review64–69.Search in Google Scholar
Galanter, M . 1983. “Reading the Landscape of Disputes: What We Know and Don’t Know (and Think We Know) About Our Allegedly Contentious and Litigation Society,” 31UCLA Law Review4–71.Search in Google Scholar
Hurst, J. W . 1980–1981. “The Functions of Courts in the United States, 1950–1980,” 15Law & Society Review401–471.Search in Google Scholar
Jacobi, O. , and A.Weiss. 2013. “The Effect of Time on Default Remedies for Breach of Contract,” 35International Review of Law & Economics13–25.Search in Google Scholar
Jokivuolle, E. , and S.Peura. 2003. “Incorporating Collateral Value Uncertainty in Loss Given Default Estimates and Loan-to-Value Ratios,” 9Europe Financial Management299–314.Search in Google Scholar
Kallberg, J. G. , and G. F.Udell. 2003. “The Value of Private Sector Credit Information,” 27Journal of Banking & Finance449–469.Search in Google Scholar
Klemm Analysis Group. 2005. “Impact of Litigation on Small Business,” No. 265 SBA Research Summary.Search in Google Scholar
Knaup, A. E . 2005. “Survival and Longevity in the Business Employment Dynamics Data,” 128Monthly Labor Review50–56.Search in Google Scholar
Kronman, A . 1978. “Specific Performance,” 45University of Chicago Law Review351–375.Search in Google Scholar
Leitner, Y . 2006. “Using Collateral to Secure Loans,” 2Business Review9.Search in Google Scholar
Lin, Li . 2014. “Optimal Loan-to-Value Ratio and the Efficiency Gains of Default,” 10Annals of Finance47–69.Search in Google Scholar
Macneil, I . 1981. “Economic Analysis of Contractual Relations: Its Shortfalls and the Need for a ‘Rich Classificatory Apparatus’,” 75Northwestern University Law Review1018–1063.Search in Google Scholar
Macneil, I . 1982. “Efficient Breach of Contract Circles in the Sky,” 68Virginia Law Review947–969.Search in Google Scholar
Mahoney, P. G . 1995. “Contract Remedies and Options Pricing,” 24Journal of Legal Studies139–163.Search in Google Scholar
McAfee, R. P. , H. M.Mialon, and M. A.Williams. 2004. “What Is a Barrier to Entry?,” 94American Economic Review461–465.Search in Google Scholar
Mcdonald, R. L . 2013. Derivatives Markets, 3rd ed. Boston, MA: Pearson.Search in Google Scholar
Miller, M. J . 2003. “Credit Reporting Systems Around the Globe: The State of the Art in Public and Private Credit Registries,” in M. J.Miller, ed. Credit Reporting Systems and the International Economy. Cambridge, MA: MIT Press.Search in Google Scholar
Nelson, W. E . 1990. “Contract Litigation and the Elite Bar in New York City, 1960–1980,” 39Emory Law Journal413–462.Search in Google Scholar
Petersen, M. A. , and R. G.Rajan. 1994. “The Benefits of Lending Relationships: Evidence From Small Business Data,” 49Journal of Finance3–37.Search in Google Scholar
Posner, R. A . 2011. Economic Analysis of Law, 8th ed. New York: Aspen Publishers.Search in Google Scholar
SBA (a), “Am I a Small Business?,” available at: http://www.sba.gov/content/am-i-small-business-concern.Search in Google Scholar
SBA (b), “Guide to Size Standards,” available at: http://www.sba.gov/content/guide-size-standards.Search in Google Scholar
SBA. 2009. “The Small Business Economy – A Report to the President,” available at: http://www.sba.gov/advocacy/849/6282.Search in Google Scholar
SBA. 2012. “Table of Small Business Size Standards Matched to North American Industry Classification System Codes,” available at: http://www.sba.gov/sites/default/files/files/Size_Standards_Table.pdf.Search in Google Scholar
Schelling, T. C . 2006. Strategies of Commitment and Other Essays. Cambridge, MA: Harvard University Press.Search in Google Scholar
Schwartz, A . 1990. “The Myth That Promisees Prefer Supracompensatory Remedies: An Analysis of Contracting for Damage Measures,” 100YALE Law Journal369–407.Search in Google Scholar
Shavell, S . 1980. “Damage Measure for Breach of Contract,” 11Bell Journal of Economics466–490.Search in Google Scholar
Shavell, S . 1984. “The Design of Contract and Remedies for Breach,” 11Quarterly Journal of Economics121–148.Search in Google Scholar
Terry, C. T . 1995. “Option Pricing Theory and the Economic Incentive Analysis of Nonrecourse Acquisition Liabilities,” 12American Journal of Tax Policy273–397.Search in Google Scholar
Uniform Commercial Code, Official Text and Comments . 2013–2014 ed., by the American Law Institute, Thomson West.Search in Google Scholar
Varian, H. R . 2010. Intermediate Microeconomics, 8th ed. New York, NY: W. W. Norton & Company, Inc.Search in Google Scholar
White, B. H. , and W. L.Medford. 2004. “Column: Dismissals of Bankruptcies Filed in Bad Faith: What’s the Standard?,” 23–10American Bankruptcy Institute Journal26.Search in Google Scholar
White, J. J. , and R. S.Summers. 2010. Uniform Commercial Code, 6th ed. St. Paul, MN: West Academic Publishing.Search in Google Scholar
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