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Wat zou het antwoord van het Nederlandse overeenkomstenrecht op plotselinge schaarste moeten zijn? In deze bijdrage staat de verhouding tussen schaarste, contractuele gebondenheid en publieke belangen centraal. Een markt, als verdelingsmechanisme van schaarse middelen en arbeid onder eindverantwoordelijkheid van de overheid, kan zelf als publiek belang worden beschouwd. Juist vanwege het denken in markten, kan het Nederlandse overeenkomstenrecht uitstekend worden uitgelegd in rechtseconomische termen. Vanuit rechtseconomisch perspectief is contractuele gebondenheid cruciaal voor een goed functionerende markt, ook bij plotselinge schaarste. Door een rechtseconomische analyse van het leerstuk van de onvoorziene omstandigheden, wordt de afgelopen coronarechtspraak geplaatst in het kader van een ideale markt en bovendien aangegeven waar rechtseconomische concepten dat leerstuk kunnen verhelderen.

Oliver Williamson has coined the term "fundamental transformation". It captures the following situation: before they strike a deal, buyer and seller are protected by competition. Yet thereafter they find themselves in a bilateral monopoly. With common knowledge of standard preferences, both sides conclude the contract regardless if its expected value exceeds their outside options. We run an experiment to test whether additional behavioral reasons deter mutually beneficial trade. If the risk materializes, another individual makes a windfall profit. She does so by intentionally exploiting the first individual. The first individual is let down, although she has knowingly exposed herself to this risk. Participants sell the opportunity to enter the contractual relationship at a price below its expected value. This effect is driven by risk aversion, and already present if the risk is stochastic. Behavioral effects are heterogeneous. About a quarter of participants exhibit the hypothesized additional deterrent effect.

In fast-paced and knowledge-intensive environments, licensing partnerships can be powerful levers for market expansion. Research on the management of technology-oriented licenses has nonetheless pointed out the risks of corrosive disputes caused by conflicting interests or misunderstandings among licensing partners. The choice made ex ante on mechanisms for resolving potential disputes is of prime importance in the execution of licensing exchanges. Although the legal literature has widely emphasized the advantages of arbitration towards litigation, public ordering remains the “default” option in managers’ eyes. By adopting a transaction cost economics logic, our study explores the conditions under which licensing partners may prefer arbitration over public ordering during the contractual-design phase. In accordance with our theoretical arguments, findings show that the occurrence of arbitration provisions increases when the coordination orientation adopted by licensing partners is extensive. In situations where both monitoring and coordination orientations are simultaneously extensive, results reveal a greater propensity to prefer arbitration over public ordering. Our research therefore supports the view that corporate decision-makers tend to favor the conciliatory stance and compromising awards typically associated with arbitration, only when exchanges are expected to be highly coordinative. Their preference for arbitration over litigation is magnified when the coordination orientation develops alongside the monitoring orientation.

Public goods are dealt with in two literatures that neglect each other. Mechanism design advises a social planner that expects individuals to misrepresent their valuations. Experiments study the provision of the good when preferences might be non-standard. We introduce the problem of the mechanism design literature into a public good experiment. Valuations for the good are heterogeneous. To each group we add a participant with power to impose a contribution scheme. We study four settings: the authority has no personal interest and (1) valuations are common knowledge or (2) active participants may misrepresent their types; the authority has a personal interest (3) and must decide before learning her own valuation or (4) knows her own valuation. Disinterested social planners predominantly choose a payment rule that gives every group member the same ?nal payoff, even if misrepresentation is possible. Authorities are overly optimistic about truth telling. Interested social planners abuse their power, except if the opportunity cost of a more balanced rule is small.

In a full-information, zero transactions costs world, the degree of protection afforded to an entitlement does not affect the likelihood of efficient trade. In reality, imperfect information is often inevitable. Specifically, a party will usually have incomplete information about fairness norms held by the other party – fairness norms that affect the other party’s willingness to pay (WTP) or willingness to accept (WTA). Importantly, these fairness norms may depend on how strongly the entitlement is protected. We experimentally test the effect of the degree of protection on the parties’ WTP and WTA and on the likelihood of efficient trade by varying the legal remedy for infringing upon the owner’s entitlement. We show that our participants can be divided into three groups corresponding to three different fairness norms: negative types whose WTP and WTA are decreasing in the strength of the legal remedy; positive types whose WTP and WTA are increasing in the strength of the legal remedy; and flat types whose WTP and WTA do not depend on the strength of the legal remedy. We find that type is role-dependent, such that a higher WTP and a lower WTA – the combination most conducive to efficient trade – is obtained with a weaker legal remedy.

Under common law, the standard remedy for breach of contract is expectation damages. Under continental law, the standard is specific performance. The common law solution is ex post efficient. But is it also ex ante efficient? We use experimental methods to test whether knowing that non-fulfilment will only lead to damages deters mutually beneficial trade. The design excludes aversion against others willfully breaking their promises. We find that there is indeed less trade if specific performance is not guaranteed, provided the preference for the traded commodity is sufficiently pronounced.

On the doctrinal surface, there is a deep divide between common and continental law when it comes to the origin of contractual obligations. Under continental law, in principle a unilateral promise suffices. Common law by contrast requires consideration. When it comes to deciding cases, the divide is much less pronounced. But for the most part the law does not govern people's lives through adjudication. It matches or molds their moral intuitions. We test these intuitions in the lab. If consideration is required, participants believe that all participants make more ambitious promises. But they themselves make a more cautious promise. These two effects cancel out, so that promises are not more likely to be kept with consideration.

Introduction Unforeseen circumstances pose one of the perennial dilemmas of private law: if due to unforseen circumstances performance becomes impracticable or even impossible, is a non-performing party then still liable out of the contract? Or might he be excused? In other words, should precedence be given to rules based on the adage pacta sunt servanda , or rather to excuses based on clausula rebus sic stantibus or other good faith principles? The French legislature clearly struggled with this dilemma in its recent adjustment of the Code civil , as can be seen from the Projet d'ordonnance of 2015 and the ordonnance n o 2016–131 of 10 February 2016. Before, a seemingly endless parade of scholars, both within and outside France, discussed the current solution in the Code civil to the problem of unforeseen circumstances, but also the solutions proposed in various draft s, such as the Avant-projet Catala. In the previous contribution to this volume, Introducing Imprevision into French Contract Law, A Paradigm Shift in Comparative Perspective , Tobias Lutzi not only analysed an impressive amount of French and foreign contemporary scholarship on – the traditional lack of – imprevision in French private law, but also assessed the current, proposed and recently adopted French solutions to commercial impracticability resulting from unforeseen circumstances. For this assessment, he compared the English, German (in particular) and the current, proposed and new French solutions to unforeseen circumstances with each other, thereby highlighting lessons to be learned from the German solution. The focus of Lutzi's comparison is mainly at a conceptual level, namely whether the systems compared offer an adequate exception to rules based on pacta sunt servanda and he argues that the German solution to the problem of unforeseen circumstances – to which the new Article 1195 Code civil will be quite similar – is to be preferred over the English, and the current and previously proposed French solutions.