도산조항의 효력

Abstract

Ipso facto clauses may incur transaction costs due to renegotiations and, therefore, are ex post inefficient. Nevertheless, parties to a contract may have ex ante incentives to include an ipso facto clause in the contract. First, as the interests of insolvent debtors and estates are not aligned, a party can set the terms of the contract applicable when it remains solvent in its favor as compensation for allowing, when it becomes insolvent, the other party to be excused from its obligations under the contract or to obtain gains from renegotiation of the contract by invoking판례평석 the ipso facto clause. Such possibility of a party extracting private benefits at the expense of its investors engenders social inefficiency by discouraging investments for the projects the pursuit of which is socially desirable. Second, the risk of an insolvent party defaulting on its obligations under the contract that would otherwise be borne by the other party can be avoided by the ipso facto clause. Such avoidance of default risk after insolvency of a party is socially efficient in the sense that, by removing the need to offer compensation for that risk even before it is materialized, it encourages executions of contracts the performance of which is socially desirable. This conflict of competing policy goals makes it difficult to determine whether ipso facto clauses be enforceable or not.