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Embedded Options and the Case Against Compensation in Contract Law

Author

Listed:
  • Robert Scott

    (University of Virginia School of Law)

  • George Triantis

    (University of Virginia School of Law)

Abstract
Despite the fact that compensation is the governing principle in contract law remedies, it has tenuous historical, economic and empirical support. A promisor's right to breach and pay damages (which is subject to the compensation principle) is only a subset of a larger family of termination rights that do not purport to compensate the promisee for losses suffered when the promisor walks away from the contemplated exchange. These termination rights can be characterized as embedded options that serve important risk management functions. We show that sellers often sell insurance to their buyers in the form of these embedded options. We explain why compensation is of little relevance to the option price agreed to by the parties, which is a function of the value of the option to the buyer, its cost to the seller and the market in which they transact. We thus propose a novel justification for why penalty liquidated damages may be higher than seller's costs: they are option prices that reflect the value of the options to the buyer. The regulation of liquidated damages is thus tantamount to price regulation, which is outside the realm of contract law. Moreover, in light of the heterogeneity among optimal option prices, we also make the case against having an expectation damages default rule to begin with. In thick markets, we argue for enforcing the parties ex ante risk allocation with market damages. In thin markets, we propose that parties be induced to agree explicitly with respect to all termination rights, including breach damages, by the threat of specific performance of their contemplated exchange or, in the case of consumers, by a default rule that provides them a termination option at no cost.

Suggested Citation

  • Robert Scott & George Triantis, "undated". "Embedded Options and the Case Against Compensation in Contract Law," University of Virginia John M. Olin Program for Law & Economics Working Paper Series uvalwps-1013, University of Virginia School of Law.
    • Handle: RePEc:bep:uvalwp:uvalwps-1013
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    File URL: http://law.bepress.com/cgi/viewcontent.cgi?article=1013&context=uvalwps
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    Citations

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    Cited by:

    1. Marco Buso & Cesare Dosi & Michele Moretto, 2021. "Do exit options increase the value for money of public–private partnerships?," Journal of Economics & Management Strategy, Wiley Blackwell, vol. 30(4), pages 721-742, November.
    2. Bar-Gill Oren, 2005. "Pricing Legal Options: A Behavioral Perspective," Review of Law & Economics, De Gruyter, vol. 1(2), pages 204-240, September.
    3. Omri Ben-Shahar & Eric A. Posner, 2011. "The Right to Withdraw in Contract Law," The Journal of Legal Studies, University of Chicago Press, vol. 40(1), pages 115-148.
    4. Marco Buso & Cesare Dosi & Michele Moretto, 2018. "Termination Fees and Contract Design in Public-Private Partnerships," Working Papers 2018.32, Fondazione Eni Enrico Mattei.
    5. Steven Walt, 2011. "Penalty Clauses and Liquidated Damages," Chapters, in: Gerrit De Geest (ed.), Contract Law and Economics, chapter 10, Edward Elgar Publishing.
    6. Robert S. Steigerwald, 2015. "Central Counterparty Clearing and Systemic Risk Regulation," World Scientific Book Chapters, in: Anastasios G Malliaris & William T Ziemba (ed.), THE WORLD SCIENTIFIC HANDBOOK OF FUTURES MARKETS, chapter 7, pages 181-246, World Scientific Publishing Co. Pte. Ltd..
    7. Christopher T. Wonnell, 2011. "Unjust Enrichment and Quasi-Contracts," Chapters, in: Gerrit De Geest (ed.), Contract Law and Economics, chapter 21, Edward Elgar Publishing.
    8. J. Luzak, 2014. "To Withdraw Or Not To Withdraw? Evaluation of the Mandatory Right of Withdrawal in Consumer Distance Selling Contracts Taking Into Account Its Behavioural Effects on Consumers," Journal of Consumer Policy, Springer, vol. 37(1), pages 91-111, March.

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