Early Repayment of Loans Under EU Law: The Lexitor Judgment

Recent changes in EU law provide flexibility and protection to consumers, facilitating early repayment of loans, when the consumer is no longer interested in continuing a credit relationship. From an economic point of view, early repayment of loans should be facilitated, because it allows money that is no longer needed to be put to other desirable uses. Under current EU law, as recently interpreted in the Lexitor judgment by the Court of Justice of the European Union, upon early repayment of a loan, consumers can obtain a pro-rated reimbursement of all the up-front and recurring costs of the loan, including origination fees and ancillary service costs. In this brief article, we take a critical look at the current EU approach to this issue, suggesting that, while the legislature made the pragmatic choice in permitting partial reimbursement of up-front costs, this leads to several economic inefficiencies that can ultimately hurt the consumer. Repayment of up-front costs, and of any other sunk cost associated with the creation of the loan, can lead to a suboptimal mix of lending contracts. Some consumers could, in fact, take out a lower interest rate long-term credit, even though they may only need a short-term loan, and this would create a disadvantage for the overall class of consumers. In order to actually protect the economic interest of consumers and carry out the intent of the legislature, we conclude that the up-front costs for non-mandatory ancillary services (such as brokerage fees, etc.) should not be included in the costs that are eligible for reimbursement in the event of early repayment of the loan. By excluding these costs, consumers will not be incentivized to overconsume such services, minimizing the negative externalities imposed on other consumers

Protecting privacy amid questions of economic efficiency and egalitarianism

This paper aims to analyze theories developed both in favor and against privacy protection according to current practices in the West. In the paper, we will examine economic justifications for privacy protection as defined by American economists and jurists, as well as the advantages to be derived by a possible elimination of said protection. Moving beyond existing economic theories, this piece develops a new economic idea, wherein privacy protection is warranted when an individual becomes interested in another's habits for a specific reason: to root out different behaviors in that person by observing a behavior that is correlated with those behaviors. Imagine the scenario of a worker who is also a soccer player, who is not competitive on the job, and is a team player, when he plays soccer, with his co-workers. The two facts, one of loving his own soccer team, and second, of not being competitive in the workplace are expressions of the same human attitude, or of a certain aspect of his personality. The employer is interested in finding out if this worker plays soccer in order to identify a lack of competitiveness on the job, and perhaps to assign him more menial tasks. The employer wishes to know the worker's interest in soccer in order to deduce therefrom a second circumstance: non-competitiveness in the workplace. Thus if regulating others' conduct is not forbidden, the worker, in order not to be found out, will no longer play soccer; he will suffer a loss in terms of his personal welfare, while the employer, on the other hand, will gain nothing, having discovered nothing. From this comes a different justification for privacy protection. In the paper, however, we note that privacy protection is a tool for encouraging equality or, in pejorative terms, egalitarianism. Behind the privacy “screen,” indeed, everyone appears in shades of gray. Privacy protection makes individuals indistinguishable. In terms of inter-personal relationships, this means a “veil” of ignorance, with all its attendant costs. Therefore, it is possible that the economic justifications defined by those in favor of privacy protection should be put aside in favor of transparency among individuals

The Inefficiency of Decoupling Liability

The scope of this paper is to demonstrate that only in case of unilateral accident a party will take efficient level of activity. In all cases of bilateral accidents there will be aòwaus a party that will take a too high level of activity. But the reason that I try to demonstrate in this work is not that one party does not consider the expected damage, but instead the also the party that has an interest to consider the expected damage will take a too high level of activity (i.e. even if the expected damage is part of her private costs). The reason why that happens is that, in case of strict liability for the injurer with a defence he will not take account of the precaution costs of the victim, and in any case of a regime of negligence the victim will not consider in her cost-benefit analysis the precaution costs of the injurer. The consequence of that is a level of activity which is inefficient for a different reason with respect to that well known: that is the fact that a party does not bear the expected damage. I accept this known solution but I underpin another problem. The conclusion is that also decoupling does not produce an efficient consequence and that the search of tort efficient rules is still more difficult

The Problem of Internalisation of Social Costs and the Ideas of Ronald Coase

This work examines the influence of Coasian thought on the analysis of externalities as used by economists and legal economists. Ronald Coase, a Chicago scholar, advanced a series of critiques of the Pigovian tax system; the theorem that bears his name is merely the best known. In his 1960 work, he sought to demonstrate that the internationalisation of social costs was not always socially useful. In addition, he identified other institutional solutions to which systems can - and often do - resort. One of these solutions is to simply authorise the harmful activity without introducing mechanisms to internalise social costs. Beyond the abstraction of his ideas, Coase's method of analysis has not had a great influence on economists' thinking. His theorem, as it is commonly known, looks more like an elegant, abstract reflection then a tool for identifying institutional solutions to concrete societal problems. Among legal economists, however, Coase's teachings have had a greater influence. Unfortunately, even within this group of scholars, the conviction that external costs should, optimally, be internalised often emerges almost unconsciously in their literature. The risk inherent in this attitude lies in the possibility of finding systems for internalising social costs in legal institutions which do not appear to have such an underlying logic, as for example some kinds of tort liability

The Inefficiency of Decoupling Liability

The scope of this paper is to demonstrate that only in case of unilateral accident a party will take efficient level of activity. In all cases of bilateral accidents there will be aòwaus a party that will take a too high level of activity. But the reason that I try to demonstrate in this work is not that one party does not consider the expected damage, but instead the also the party that has an interest to consider the expected damage will take a too high level of activity (i.e. even if the expected damage is part of her private costs). The reason why that happens is that, in case of strict liability for the injurer with a defence he will not take account of the precaution costs of the victim, and in any case of a regime of negligence the victim will not consider in her cost-benefit analysis the precaution costs of the injurer. The consequence of that is a level of activity which is inefficient for a different reason with respect to that well known: that is the fact that a party does not bear the expected damage. I accept this known solution but I underpin another problem. The conclusion is that also decoupling does not produce an efficient consequence and that the search of tort efficient rules is still more difficult

Understanding "The Problem of Social Cost"

This paper examines the positions of Coase and Pigou in regard to the problem of external effects (externalities). Assessing their two most important works, it appears that Coase has a more relevant preference for an evaluation of total efficiency, while Pigou, with some exceptions, is convinced that it is almost always socially desirable to reach marginal efficiency through taxes or liability. It is interesting that the economist of Chicago, who has elaborated on the renowned theorem, thinks that is not desirable to reach efficiency at the margin every time, and that it is often preferable to evaluate the total, which indicates the solution that is more welfare enhancing. A certain confusion in the work of Coase is noticeable. On one hand he criticizes Pigou for statements regarding the social desirability of relocating some industries away from the towns, and on the other hand, he suggests solutions that give an absolute right for an activity that is incompatible with the activity of another subject. In this way he eliminates the possibility of having a solution that is in accordance with Coase’s idea, which stresses that any external effect is reciprocal. The adjective “reciprocal” means that damage to Y is the consequence of limiting the activity of Y in order to allow for the activity of X. The opposite is also true: A benefit for Y causes damage to X. Beyond this criticism, Coase’s arguments against Pigou’s tools are represented by the famous theorem, according to which a public intervention is not necessary in order to obtain efficiency when transaction costs are low. However, the theorem is not an idea that can be used to say that Pigou’s methods are useless when transaction costs are high. Indeed, when transaction costs are high, efficiency cannot be reached through negotiations. Coase, nonetheless, rejects Pigou’s tools for every situation. Through a deep examination of the paragraphs of “The Problem of Social Costs,” it is understandable why Coase opposes Pigou’s tools. First of all, he considers that the remedy consisting in the compensation of the victim. To Pigou’s way of thinking, this is a strict liability rule. Coase states that the damage is caused by both parties, and, moreover, the amount of the damage depends on both parties. He understands that the compensation method described by Pigou can bring about moral hazards and, therefore, brings about new social costs. Since the article was written in 1960, Coase’s theory has been developed and has become a pillar of tort law and economics. Pigou proposed a tax as an alternative remedy for external effects, which does not bring about a behavior of moral hazard, because the victim bears the expected costs. However, Coase is diffident in regard to the tax. His idea was not developed by other scholars in the subsequent years. Coase understands that efficiency should require a tax on the victim, so that the victim considers the increase of the costs of precaution for the injurer due to creating the nuisance. In other words, Coase understands that the tax does not produce the socially optimal activity level of the parties if the costs of precaution of the other party are not considered as a component of the tax. Therefore, Coase‘s belief is that the tools of Pigou create so many problems as to make them inefficient

Activity-Level Externalities

In the literature we find unanimous consensus on the analysis of bilateral accident models. In bilateral accident models, indeed, it is usually held that both with the negligence rule and with strict liability with contributory negligence, the residual bearer adopts an efficient level of precaution and efficient activity levels; the party that is not the residual bearer, on the other hand, chooses an excessive activity level since once the due precautions have been taken, they do not answer for the damage, regardless of the activity level adopted. One of the possible solutions put forward in the doctrine to achieve a first-best situation in the bilateral accident model is that of decoupling liability, in which both the parties are residual bearers: therefore, this is the idea of a Pigovian tax, under which the injurer pays the State a tax equal to the expected damage and the victim is not compensated for the damage suffered. In this way both the parties have an interest in acting diligently in order to reduce the costs which they incur and in choosing an efficient activity level. In our view, the common doctrinal assumptions are based on an erroneous belief. By building on an idea of Coase’s that is not held in sufficient regard by the doctrine, we intend to show that the residual bearer also maintains an excessive activity level in bilateral accidents, since he does not consider the precaution costs of the counterparty. He therefore tends to act even when his benefits are greater than the total expected damage and the cost of his precautions, but lower than the total social costs, in the sense of the sum of the expected damage, the cost of his precautions and the cost of the counterparty’s precaution

Activity-Level Externalities

In the literature we find unanimous consensus on the analysis of bilateral accident models. In bilateral accident models, indeed, it is usually held that both with the negligence rule and with strict liability with contributory negligence, the residual bearer adopts an efficient level of precaution and efficient activity levels; the party that is not the residual bearer, on the other hand, chooses an excessive activity level since once the due precautions have been taken, they do not answer for the damage, regardless of the activity level adopted. One of the possible solutions put forward in the doctrine to achieve a first-best situation in the bilateral accident model is that of decoupling liability, in which both the parties are residual bearers: therefore, this is the idea of a Pigovian tax, under which the injurer pays the State a tax equal to the expected damage and the victim is not compensated for the damage suffered. In this way both the parties have an interest in acting diligently in order to reduce the costs which they incur and in choosing an efficient activity level. In our view, the common doctrinal assumptions are based on an erroneous belief. By building on an idea of Coase’s that is not held in sufficient regard by the doctrine, we intend to show that the residual bearer also maintains an excessive activity level in bilateral accidents, since he does not consider the precaution costs of the counterparty. He therefore tends to act even when his benefits are greater than the total expected damage and the cost of his precautions, but lower than the total social costs, in the sense of the sum of the expected damage, the cost of his precautions and the cost of the counterparty’s precaution