Current law and economics scholarship analyzes efficient breach cases monolithically. The standard analysis holds that breach is efficient when performance of a contract generates a negative surplus for the parties. However, by simplistically grouping efficient breach cases as of a single kind, the prior literature overlooks some important factors that meaningfully distinguish types of efficient breach, such as effects of the breach on productive and allocative efficiency, restraints on the incentive to breach, information-forcing, and competitive effects of the right to breach. We argue that these factors are important for the development of a more nuanced economic theory of efficient breach. More specifically, we contend that there are relevant economic considerations that distinguish breaches carried out for the pursuit of a gain (“gain-seeking breaches”) from breaches meant to prevent a loss (“loss-avoiding breaches”) and breaches carried out by the seller from those carried out by a buyer. We show that the economic argument for loss-avoiding efficient breach is stronger than for gain-seeking efficient breach especially when the breaching party is the seller. From this analysis, we generated several hypotheses, which we tested in an incentivized lab experiment. The data show that test participants’ reactions differ with respect to gain-seeking and loss-avoiding breaches, exhibiting behavior in line with our theoretical predictions, giving us insight into the preferences and expectations of ordinary people in cases of breach, and being correlated with the apparent intuitions of judges in deciding efficient breach cases
