Towards an Economic Analysis of the Antecedent Benefit Doctrine

We need the antecedent benefit doctrine because it combines the legal regime and moral incentives into a vehicle of welfare enhancement. Neither law nor morality leads separately to efficient result. The legal regime needs morality as it gives incentives to provide others with unsolicited benefits, encourages promises where there is no material reason to promise, helps to keep these promises, and counterweights eventual negative effects of the legal regulation. In turn, morality is also improved by the legal regime as far as law secures more effective enforcement and, more importantly, selects among socially desirable and undesirable promises by making only desirable promises enforceable.However, law and morality are distinct regulatory forces within the doctrine and should remain as such. Law cannot absorb morality without infringing on the human integrity necessary for free promises. By trying so, it would also undermine the beneficial effect of morality, as independent and costless motivating force. In the other hand, morality alone would sometimes produce socially inefficient exchanges. This paper, in a deconstructive manner, makes clear why not all promises should be legally enforceable, despite the fact that it is desirable to have a contradictory social norm suggesting that "all promises should be kept." It also demonstrates where and how the antecedent benefit doctrine works better than restitution arguing that in certain cases where restitutionary remedies are unavailable or would remain neutral the antecedent benefit doctrine promotes social welfare. It argues that the real function of the antecedent benefit rule is not the legal approbation of moral consideration rather the quantitative refinement of boundedly rational promises. It has the potential to make non-bargained-for transactions more efficient.