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SSRN Electronic Journal
Article . 2008 . Peer-reviewed
Data sources: Crossref
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On the Necessity of Necessity: An Economic Analysis of Contracts Concluded in a Situation of Need

An economic analysis of contracts concluded in a situation of need
Authors: Szalai, Akos; Cserne, Peter;

On the Necessity of Necessity: An Economic Analysis of Contracts Concluded in a Situation of Need

Abstract

An important characteristic of necessity cases is that ex ante and sometimes even ex post both parties have an interest in upholding the contract. From an economic perspective, the policy objective of regulating necessity is to give optimal incentives for precaution, search and rescue. These incentive effects have been widely discussed in the law and economics literature, the received view being that price control based on the costs of the rescue plus a small reward provide optimal incentives. In this paper we argue that the received view is unwarranted. Our model suggests that in many cases the socially efficient contract price is higher than the rescue costs. To be sure, due to serious information problems the practical implementation of this theoretical optimum is much more difficult than the cost-plus price setting supported by the received view. While the policy implications of our model are rather tentative we suggest that the judicial costs of estimating policy variables should be taken into account. A second objective of this paper is to argue for an economic interpretation of the term ‘necessity’ in contract law. Instead of various substantive criteria suggested in the philosophical literature we suggest defining the term by working backwards from the possible remedies. The excuse of necessity should be available for contracting parties when, all things considered, a judicial control (modification) of the contract price is desirable. Necessity is thus “defined” by what courts can and should do.

Countries
United Kingdom, Netherlands
Keywords

Social welfare, 330, Economic analysis, Social losses, Contract law

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selected citations
These citations are derived from selected sources.
This is an alternative to the "Influence" indicator, which also reflects the overall/total impact of an article in the research community at large, based on the underlying citation network (diachronically).
BIP!Citations provided by BIP!
popularity
This indicator reflects the "current" impact/attention (the "hype") of an article in the research community at large, based on the underlying citation network.
BIP!Popularity provided by BIP!
influence
This indicator reflects the overall/total impact of an article in the research community at large, based on the underlying citation network (diachronically).
BIP!Influence provided by BIP!
impulse
This indicator reflects the initial momentum of an article directly after its publication, based on the underlying citation network.
BIP!Impulse provided by BIP!
1
Average
Average
Average
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