Drawing from a model of bargaining behavior based on transaction cost economics, relational theories of contract,23 Williamsonian models of contracting behavior, and other economic insights, this Article argues that achieving the optimal solution for the complexities of bargaining relationships demands the adoption of a new legal default rule. This new default rule should have two aspects: First, the law should substantively recognize an implicit bargain, even in the absence of explicitly reciprocal communications. Second, the law should impose an obligation to perform that incorporates the terms of the parties' unexpressed, implicit bargain.



Publication Date


Document Type


Place of Original Publication

Hastings Law Journal

Publication Information

44 Hastings Law Journal 621 (1993)

Included in

Contracts Commons


COinS Juliet P. Kostritsky Faculty Bio