出版社：Suntory Toyota International Centres for Economics and Related Disciplines
摘要：We find an economic rationale for the common sense answer to the question in our
title — courts should not always enforce what the contracting parties write. We
describe and analyze a contractual environment that allows a role for an active
court. An active court can improve on the outcome that the parties would achieve
without it. The institutional role of the court is to maximize the parties’
welfare under a veil of ignorance. We study a buyer-seller multiple-widget model
with risk-neutral agents, asymmetric information and ex-ante investments. The
court must decide when to uphold a contract and when to void it. The parties
know their private information at the time of contracting, and this drives a
wedge between ex-ante and interim-efficient contracts. In particular, if the
court enforces all contracts, pooling obtains in equilibrium. By voiding some
contracts the court is able to induce them to separate, and hence improve
ex-ante welfare. In some cases, an ambiguous court that voids and upholds both
with positive probability may be able to increase welfare even further.
