Unfair Terms in Standard Form Consumer Contracts

This paper explores the amendments to the Fair trading Act 1986 introducing provisions preventing the use of unfair terms in standard form consumer contracts. The amendments are drafted in close line with Australian federal and state legislation addressing unfair terms. This paper outlines the provisions, identifies two key differences between the Australian and New Zealand legislation, and argues that as a result of those differences the protection will not be effective. The ultimate conclusion reached is that consumers in New Zealand are now protected from unfair terms within standard form contracts in form but not substanc

The Dynamics of Contract Evolution

Contract scholarship has given little attention to the production process for contracts. The usual assumption is that the parties will construct the contract ex nihilo, choosing all the terms so that they will maximize the surplus from the contract. In fact, parties draft most contracts by slightly modifying the terms of contracts that they have used in the past, or that other parties have used in related transactions. A small literature on boilerplate recognizes this phenomenon, but little empirical work examines the process. This Article provides an empirical analysis by drawing on a data set of sovereign bonds. The authors show that exogenous factors are key determinants in the evolution of these contracts. We find an evolutionary pattern that roughly separates into three stages. Stage one where a particular standard form dominates; stage two where there are external shocks and marginal players experiment with deviations from the standard form; and stage three where a new standard emerges. The pattern confirms roughly to the S curve commonly described in the product innovation literature. The authors also find that more marginal law firms are likely to be leaders in innovation at early stages of the innovation cycle but that dominant law firms are the leaders at later stages

Variation in Boilerplate: Rational Design or Random Mutation?

Standard contract doctrine presumes that sophisticated parties choose their terminology carefully because they want courts or counterparts to understand what they intended. The implication of this “Rational Design” model of rational behavior is that courts should pay careful attention to the precise phrasing of contracts. Using a study of the sovereign bond market, we examine the Rational Design model as applied to standard-form contracting. In NML v. Argentina, federal courts in New York attached importance to the precise phrasing of the boilerplate contracts at issue. The industry promptly condemned the decision for a supposedly erroneous interpretation of a variant of a hoary boilerplate clause. Utilizing data on how contracting practices responded to the decision, we ask whether the market response indicates that parties in fact intended for the small variations in their contract language to embody a particular meaning. We find the data supports a model closer to random mutation rather than rational design

Construction contract policy: do we mean what we say?

Recent developments in contracting practice in the UK have built upon recommendations contained in highprofile reports, such as those by Latham and Egan. However, the New Engineering Contract (NEC), endorsed by Latham, is based upon principles of contract drafting that seem open to question. Any contract operates in the context of its legislative environment and current working practices. This report identifies eight contentious hypotheses in the literature on construction contracts and tests their validity in a sample survey that attracted 190 responses. The survey shows, among other things, that while partnership is a positive and useful idea, authoritative contract management is considered more effective and that “win-win” contracts, while desirable, are basically impractical. Further, precision and fairness in contracts are not easy to achieve simultaneously. While participants should know what is in their contracts, they should not routinely resort to legal action; and standard-form contracts should not seek to be universally applicable. Fundamental changes to drafting policy should be undertaken within the context of current legal contract doctrine and with a sensitivity to the way that contracts are used in contemporary practice. Attitudes to construction contracting may seem to be changing on the surface, but detailed analysis of what lies behind apparent agreement on new ways of working reveals that attitudes are changing much more slowly than they appear to be

Hidden insurance in a moral hazard economy

We consider an economy where individuals privately choose effort and trade competitively priced securities that pay off with effort-determined probability. We show that if insurance against a negative shock is sufficiently incomplete, then standard functional form restrictions ensure that individual objective functions are optimized by an effort and insurance combination that is unique and satisfies first- and second-order conditions. Modeling insurance incompleteness in terms of costly production of private insurance services, we characterize the constrained inefficiency arising in general equilibrium from competitive pricing of nonexclusive financial contracts

Asset Ownership and Contractability of Interaction

In a property-rights framework, I study how organizational form and quantity contracts interact in generating investment incentives. The model nests standard property-rights and hold-up models as special cases. I admit general message-dependent contracts, but provide conditions under which non-contingent contracts are optimal. First, I contribute to the foundation of the property-rights theory: I characterize under which circumstances its predictions are correct when trade is contractible. Second, I study how the optimal use of the incentive instruments depends on the environment. This is in the spirit of the multitasking literature. Finally, the model produces implications of the property-rights theory that are empirically testable.Property Rights, Incomplete Contracts, Specific Investments

Media contracts formalization using a standardized contract expression language

Contract Expression Languages allow representing business contracts in a digital and structured form. Some examples are the Content Reference Forum format, the OASIS eContracts standard or a proposed extension for MPEG-21 Part 5. These formats have influenced the design of the MPEG-21 Contract Expression Language (CEL), which has been recently specified by modelling the most relevant clauses in audiovisual contracts. The MPEG-21 CEL, described in this paper, defines a language for representing media contracts as XML. It is structured in two schemas, a core defining the structural elements of a contract, and an extension with vocabulary for specific applications.Peer ReviewedPostprint (author’s final draft

Production Externalities and Two-Way Distortion in Principal-Multi-Agent Problems.

This paper studies an otherwise standard principal-agent problem with hidden information, but whether there are positive production externalities between agents: the output of any agent depends positively on the effort expended by the other agents. It is shown that the optimal contract for the principal exhibits two-way distortion: the effort of any agent is oversupplied (relative to the first-best) when his marginal cost effort is low, and undersupplied his marginal cost of effort is high. This pattern of distortion cannot otherwise arise in optimal single- or multi-agent incentive contracts, unless there are countervailing incentives. However, unlike the countervailing incentives case, the pattern of distortion is robust to the precise form of the externality.INFORMATION ; EXTERNALITIES