Contract Law and Economics by Gerrit De Geest (ed.)

By Gerrit De Geest (ed.)

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The argument of Cooter and Ulen appears to be based on the earlier work of Hirshleifer (1971, p. 561), who made a distinction between ‘foreknowledge’ and ‘discovery’. indd 34 16/12/10 16:54:55 Contractual mistake and misrepresentation 35 reveal’ and which ‘involves only the value of priority in time of superior knowledge’. This type of information leads only to redistribution of wealth, without increasing social welfare. Discovery, by contrast, is ‘the recognition of something that possibly already exists, though [it will remain] hidden from view unless and until the discovery is made’ (Hirshleifer, 1971, p.

If the probability of legal enforcement is imperfect (q , 1), D can always be increased to achieve Dq $ 0 P 2 V 0 by setting D $ 0 P 2 V 0 /q. Notwithstanding a low q will undermine legal deterrence, effective deterrence can be restored by increasing D.

Fostering Efficient Information Exchange or Information Gathering The law and economics literature usually attributes two basic functions to contract law: the optimization of the incentives to perform and the optimization of the incentives to rely. A third function of contract law, which has traditionally received less attention, is the optimization of incentives to gather information on the probability of performance and to disclose that information efficiently. The remedies for breach of contract can be calibrated in such a way as to address the informational issue (Craswell, 1988, 1989).

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