"Strategic Vagueness in Contract Design: The Case of Corporate Acquisitions"

Michigan Law Authors
Areas of Interest
Publish Date
Yale Law Journal
Publication Type
Journal Article

The unprecedented and unanticipated economic and financial shocks of the past
couple of years have led parties to look for contractual escapes from deals. As the current crisis
works its way through our economic system, however, attention will be shifted from the
collapsed deals to the design of future transactions. The vague language of past agreements has
fueled disputes and threatened costly and uncertain litigation. Should future parties, in corporate
acquisition deals and other commercial contracts, inject greater precision in their agreements?
There are many proponents of this advice. However, we lack a theoretical framework for setting
out the costs and benefits of vague and precise provisions. In this Article, we provide such a
framework in order to improve awareness of the strategic use of vagueness in contracting.
The conventional rules-standards analysis suggests that vague terms are justified when the
expected larger litigation costs in enforcing standards are outweighed by the lower costs of
drafting. In acquisition agreements, this would suggest that vague MAC clauses yield benefits
only by reducing front-end drafting costs. Yet, some proxies for material adverse change, such as
quantitative thresholds in stock price, revenues, or accounting earnings, are easy to draft and can
be verified at low cost. They are usually noisy proxies, however, and therefore are not perfect.
We demonstrate that litigation costs, when properly harnessed, can in fact improve
contracting by operating as a screen on the seller’s decision to sue. We review three possible
goals of MAC clauses: (a) to provide efficient incentives for investment and precautions against
future contingencies by the seller between the time of the agreement and closing; (b) to allow
the seller to better signal its private information to the acquirer at the time of contracting; and
(c) to enable the seller to better signal private information at the time of closing, in order to
promote ex post efficiency in terminating or executing the acquisition. We show that, in
achieving these goals, vague provisions may work better than more precise and less costly

Full Text