Dissertation•
Justifying the application of the theory of efficient breach specifically within the context of commercial contracting.
27 Sep 2018-
TL;DR: In this article, the authors provide a functional, and justifiable application of the theory of the efficient breach of a commercial contract within the commercial context, where the underlying intention behind commercial contracting is profit generation.
Abstract: This thesis provides a functional, and justifiable application of the theory of the efficient breach of
contract within the commercial context. Limiting the theory’s application in this way is the primary
original contribution. This is because the theory of efficient breach has not been explicitly applied
solely to the commercial setting previously. This is legitimate because the underlying intention
behind commercial contracting is profit generation. As such, maximising the wealth which flows
from commercial contracts will be the focus of the parties involved. An additional original
contribution is that this thesis represents the first major discussion of efficient breach which applies
the theory to English law.
This thesis also makes additional contributions. A definition of “commercial” in a contract law
context is established to frame the discussion that is to follow. It is then outlined that the fundamental
structure of English contract law will remain the same whether a dispute concerns a commercial, or
a non-commercial contract. However, there is a difference in the approach of the court where rights
are pursued for commercial, profit driven reasons in contrast with rights that are of a personal nature.
Next, it is set out that in English law, promise is not the basis of contract. As such, the efficient breach
of commercial contracts cannot be discounted based on issues of morality which are linked to
promise breaking. Numerous other criticisms which have been directed at efficient breach are also
discounted.
Ultimately, a legitimate formulation of the efficient breach of commercial contracts is outlined. This
iteration is permissive, rather than mandatory. It provides efficient optionality, meaning that where
a party has the opportunity to breach efficiently, it will not necessarily take place. However, should
a party choose to breach, they will be justified. This is a departure from more prescriptive approaches.
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References
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Book•
01 Jan 1974TL;DR: The authors described three heuristics that are employed in making judgements under uncertainty: representativeness, availability of instances or scenarios, and adjustment from an anchor, which is usually employed in numerical prediction when a relevant value is available.
Abstract: This article described three heuristics that are employed in making judgements under uncertainty: (i) representativeness, which is usually employed when people are asked to judge the probability that an object or event A belongs to class or process B; (ii) availability of instances or scenarios, which is often employed when people are asked to assess the frequency of a class or the plausibility of a particular development; and (iii) adjustment from an anchor, which is usually employed in numerical prediction when a relevant value is available. These heuristics are highly economical and usually effective, but they lead to systematic and predictable errors. A better understanding of these heuristics and of the biases to which they lead could improve judgements and decisions in situations of uncertainty.
31,082 citations
TL;DR: The transaction cost approach to the study of economic organization regards the transaction as the basic unit of analysis and holds that an understanding of transaction cost economizing is central to the analysis of organizations as mentioned in this paper.
Abstract: The transaction cost approach to the study of economic organization regards the transaction as the basic unit of analysis and holds that an understanding of transaction cost economizing is central to the study of organizations. Applications of this approach require that transactions be dimensionalized and that alternative governance structures be described. Economizing is accomplished by assigning transactions to governance structures in a discriminating way. The approach applies both to the determination of efficient boundaries, as between firms and markets, and to the organization of internal transactions, including the design of employment relations. The approach is compared and contrasted with selected parts of the organization theory literature.
5,819 citations
01 Jan 1961
4,716 citations
Journal Article•
TL;DR: In 1881, Edgeworth posait comme premier principe de l'economie le fait "que chaque agent a comme motivation unique son interet propre" Cette conception egoiste de lhomme a penetre la theorie economique and persiste L'A demontre l'inconsistance des concepts qui en sont les points nodaux: "rationalite" de la "conduite" which consiste a "choisir" selon "l'ordre de ses preferences" ou
Abstract: En 1881, Edgeworth posait comme premier principe de l'economie le fait "que chaque agent a comme motivation unique son interet propre" Cette conception egoiste de l'homme a penetre la theorie economique et y persiste L'A demontre l'inconsistance des concepts qui en sont les points nodaux: "rationalite" de la "conduite" qui consiste a "choisir" selon "l'ordre de ses preferences" ou selon le critere de "l'engagement financier" ou de "l'utilite"
2,934 citations
"Justifying the application of the t..." refers background in this paper
...1551; Seana V Shiffrin, ‘Must I Mean What You Think I Should Have Said?’ (2012) 98 Virginia Law Review 159....
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TL;DR: Kahneman and Thaler as mentioned in this paper showed that even profit-maximizing firms will have an incentive to act in a manner that is perceived as fair if the individuals with whom they deal are willing to resist unfair transactions and punish unfair firms at some cost to themselves.
Abstract: The advantages and disadvantages of expanding the standard economic model by more realistic behavioral assumptions have received much attention. The issue raised in this article is whether it is useful to complicate-or perhaps to enrichthe model of the profit-seeking firm by considering the preferences that people have for being treated fairly and for treating others fairly. The absence of considerations of fairness and loyalty from standard economic theory is one of the most striking contrasts between this body of theory and other social sciences-and also between economic theory and lay intuitions about human behavior. Actions in many domains commonly conform to standards of decency that are more restrictive than the legal ones: the institutions of tipping and lost-and-found offices rest on expectations of such actions. Nevertheless, the standard microeconomic model of the profitmaximizing firm assigns essentially no role to The traditional assumption that fairness is irrelevant to economic analysis is questioned. Even profit-maximizing firms will have an incentive to act in a manner that is perceived as fair if the individuals with whom they deal are willing to resist unfair transactions and punish unfair firms at some cost to themselves. Three experiments demonstrated that willingness to enforce fairness is common. Community standards for actions affecting customers, tenants, and employees were studied in telephone surveys. The rules of fairness, some of which are not obvious, help explain some anomalous market phenomena. * The research for this paper was supported by the Department of Fisheries and Oceans Canada. Kahneman and Thaler were also supported, respectively, by the U.S. Office of Naval Research and by the Alfred P. Sloan Foundation. Conversations with J. Brander, R. Frank, and A. Tversky were very helpful. We also thank Leslie McPherson and Daniel Treisman for their assistance. The paper presented at the conference and commented on by the discussants included a detailed report of study 3, which is only summarized here. It did not contain study 1, which was incomplete at the time. Daniel Kahneman is now in the Department of Psychology, University of California, Berkeley 94720.
2,316 citations