2009 • Volume 34 • Number 1

Bargaining in the Shadow of the Lawsuit: a Social Norms Theory of Incomplete Contracts

Claire A. Hill

Complex business contracts are notoriously difficult to write and read. Certainly, when litigation arises, courts scarcely have an easy time interpreting them. Indeed, contracts don’t look at all as though they are written to tell a court what the parties want. Why can’t smart, well motivated lawyers do a better job? My article argues that they rationally do not try. I argue for a view of contracting in which parties are not principally trying to set forth an agreement for a court to enforce. Rather, by leaving inartful language and ambiguity in the agreement, parties are bonding themselves not to seek precipitous recourse to litigation. The agreement entered into provides each party with grounds to bring a lawsuit if it so desires. Thus, if one party sues, the other party will virtually always have grounds to countersue. The complex transacting community has a norm against litigation in any event; bonding encourages and bolsters this norm, as well as norms of appropriate conduct throughout the contracting relationship. The contracting process, and the contract that results, thus serves importantly to create the parties’ relationship and to set the stage for dispute resolution consistent with preserving the relationship, as well as to keep available the backstop of enforcement if needed.