优先购买权的再思考【外文翻译】.docVIP

外文翻译 RETHINKING RIGHTS OF FIRST REFUSAL David I. Walker* Among the many provisions of the incorporating documents of a close corporation, an item will often appear (usually well towards the back) labeled Rights of First Refusal. By adopting this provision, the shareholders of the corporation promise that they only will sell their shares after negotiating a price with a third party and offering the shares at that price to their fellow shareholders. Although the details will vary, such rights of first refusal are ubiquitous in commercial contracts and encumber assets ranging from gas stations to oil pipelines, from shares of stock to livestock; and they are not limited to constraining sales or even to restricting the disposition of property. In the typical right of first refusal arrangement, at least three parties are implicated -- the owner and rightholder who have contracted for the grant of the right and one or more potential third-party buyers. This Article investigates the economic impact of the grant on each of these parties, and seeks to determine why the contracting parties make such commitments and why they adopt this particular instrument. This Article has three primary goals: 1. Demonstrate that rights of first refusal are costly for the contracting parties. The few commentators who have considered the matter have suggested that rights of first or, beyond transaction costs, simply transfer value from the refusal are economically innocuous grantor to the rightholder. If, at worst, a right of first refusal simply transferred value between the contracting parties, little justification would be needed for its adoption. The transfer could be compensated for ex ante, if necessary, and the benefit beyond transaction costs arising from the instrument would represent added value to be divided by the contracting parties. My first goal, however, is to demonstrate that parties adopting rights of firs