Marketing's emphasis of exchange relationships versus transactions has prompted interest in approaches for regulating the conduct of participants in these associations. Because growing scholarship in law has questioned the theoretical and practical consistency of legal approaches for governing exchange relationships, increasing attention has been given to nonlegal approaches. However, empirical and anecdotal evidence suggests that the law remains a key mechanism of regulation in exchange. The author investigates the safeguarding nature of legal and nonlegal governance approaches. Examining exchange as a process, he proposes a model of governance that contrasts the role of these approaches. Implications for the management and research of exchange relationships and public policy are discussed.
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References
1.
Achrol, SinghRavi, TorgerReve, and LouisW. Stern (1983), “The Environment of Marketing Channel Dyads: A Framework or Comparative Analysis,” Journal of Marketing, 47 (Fall), 55–67.
2.
Anderson, Erin (1985), “The Salesperson as Outside Agent or Employee: A Transaction Cost Analysis,” Marketing Science, 4 (Summer), 234–54.
3.
Anderson, Erin (1988), “Transaction Costs as Determinants of Opportunism in Integrated and Independent Sales Force,” Journal of Economic Behavior and Organization, 9 (3), 247–64.
4.
Anderson, Erin and AnneCoughlan (1987), “International Market Entry and Expansion Via Independent or Integrated Channels of Distribution,” Journal of Marketing, 51 (January), 71–82.
5.
Anderson, Erin and AnneCoughlan and RichardL. Oliver (1987), “Perspectives on Behavior-Based vs. Outcome-Based Salesforce Control Systems,” Journal of Marketing, 51 (October), 76–88.
6.
Anderson, Erin and AnneCoughlan and RichardL. Oliver and BartonWeitz (1983), “Make or Buy Decisions: Vertical Integration and Marketing Productivity,” Sloan Management Review, 27 (Spring), 3–19.
7.
Anderson, Erin and AnneCoughlan and RichardL. Oliver and BartonWeitz (1992), “The Use of Pledges to Build and Sustain Commitment in Distribution Channels,” Journal of Marketing Research, 29 (February), 18–24.
8.
Arndt, Johan (1979), “Toward a Concept of Domesticated Markets,” Journal of Marketing, 43 (Fall), 69–75.
9.
Arrow, KennethJ. (1985), “The Economics of Agency,” in Principals and Agents: The Structure of Business, PrattJ. and ZeckhauserR., eds. Boston: Harvard Business School Press, 37–51.
10.
BanfieldE.C. (1958), The Moral Basis of a Backward Society.New York: The Free Press.
11.
Beale, Hugh and DugdaleTony (1975), “Contracts Between Businessmen: Planning and the Use of Contractual Remedies,” British Journal of Law and Society, 2, 45–60.
12.
Blau, Peter (1964), Exchange and Power in Social Life.New York: John Wiley & Sons, Inc.
13.
Boyle, Brett, DwyerF. Robert, RobertA. Robicheaux, and JamesT. Simpson (1992), “On Influence Strategies in Marketing Channels,” Journal of Marketing, 29 (November), 462–73.
14.
Bromberg, AllanR. and LarryE. Ribstein (1988), Bromberg and Ribstein on Partnership.Boston: Little, Brown Publishing.
15.
Calamari, JohnD. and JosephM. Perillo (1987), Contracts.St. Paul, MN: West Publishing.
16.
Charney, David (1990), “Nonlegal Sanctions in Commercial Relationships,” Harvard Law Review, 104 (2), 373–467.
17.
Coase, Ronald (1988), The Firm, the Market and the Law.Chicago: University of Chicago Press.
18.
CommonsJ., (1950), The Economics of Collective Action.New York: MacMillan.
19.
DugdaleA.M. and LoweN.V. (1976), “Contracts to Contract and Contracts to Negotiate,” Journal of Business Law, 28–37.
20.
Dwyer, RobertR., PaulH. Schurr, and SejoOh (1987), “Developing Buyer-Seller Relationships,” Journal of Marketing, 51 (April), 11–27.
21.
Farnsworth, AllenE. (1987), “Precontractual Liability and Preliminary Agreements: Fair Dealing and Failed Negotiations,” Columbia Law Review, 87, 217–94.
22.
Feldman v. Allegheny International Inc. (1988), 850 F. 2d1217.
23.
FerrellO.C., LarryG. Gresham, and JohnFraedrich (1985), “A Contingency Framework for Understanding Ethical Decision Making in Marketing,” Journal of Marketing, 49 (Summer), 87–96.
24.
FerrellO.C., LarryG. Gresham, and JohnFraedrich, and (1989), “A Synthesis of Ethical Decision Models for Marketing,” Journal of Macromarketing, 9 (Fall), 55–64.
25.
Ford, David (1980), “The Development of Buyer-Seller Relationships in Industrial Markets,” European Journal of Marketing, 19 (5/6), 339–53.
26.
Frazier, GaryL., RobertE. Spekman, and CharlesR. O'Neal (1988), “Just-In-Time Exchange Relationships in Industrial Markets,” Journal of Marketing, 52 (October), 52–67.
27.
Gilmore, Grant (1974), The Death of Contract.Columbus, OH: Ohio State University Press.
28.
Goetz, CharlesJ. and RobertE. Scott (1981), “Principles of Relational Contracts,” Virginia Law Review, 67 (6), 1089–150.
29.
Goetz, CharlesJ. and RobertE. Scott (1983), “The Mitigation Principle: Toward a General Theory of Contractual Obligation,” Virginia Law Review, 69 (6), 967–1024.
30.
Goldberg, Victor (1979), “The Law and Economics of Vertical Restrictions: A Relational Perspective,” Texas Law Review, 58, 19–129.
31.
Graham, DanielA. and EllenR. Peirce (1989), “Contract Modification: An Economic Analysis of the Hold-up Game,” Law and Contemporary Problems, 52 (1), 9–32.
32.
Gundlach, GregoryT. and RaviS. Achrol (1993), “Governance in Exchange: Contract Law and Its Alternatives,” Journal of Public Policy & Marketing, 12 (November), 141–55.
33.
Gundlach, GregoryT. and RaviS. Achrol and PatrickE. Murphy (1993), “Ethical and Legal Foundations of Relational Marketing Exchanges,” Journal of Marketing, 57 (October), 35–46.
34.
Hadfield, GillionK. (1990), “Problematic Relations: Franchising and the Law of Incomplete Contracts,” Stanford Law Review, 42, 927–92.
35.
Heide, JanB. (1994), “Interorganizational Governance in Marketing Channels,” Journal of Marketing, 58 (January), 71–85.
36.
Heide, JanB. and GeorgeJohn (1988), “The Role of Dependence Balancing in Safeguarding Transaction- Specific Assets in Conventional Channels,” Journal of Marketing, 52 (January), 20–35.
37.
Heide, JanB. and GeorgeJohn (1990), “Alliances in Industrial Purchasing: The Determinants of Joint Action in Buyer-Supplier Relationships,” Journal of Marketing Research, 27 (February), 24–36.
38.
Heide, JanB. and GeorgeJohn (1992), “Do Norms Really Matter?” Journal of Marketing, 56 (2), 32–44.
39.
Houston, FranklinS. (1994), Marketing Exchange Relationships, Transactions, and Their Media.Westport, CT: Quorem Books.
40.
Houston, FranklinS. and JuleB. Gassenheimer (1987), “Marketing and Exchange,” Journal of Marketing, 41 (October), 3–18.
41.
Hunt, ShelbyD. and VitellS. (1986), “A General Theory of Marketing Ethics,” Journal of Macromarketing, 6 (Spring), 5–16.
42.
Jackson, BarbaraB. (1985), Winning and Keeping Industrial Customers: The Dynamics of Customer Relationships.Lexington, MA: D.C. Heath and Company.
43.
John, George (1984), “An Empirical Investigation of Some Antecedents of Opportunism in a Marketing Channel,” Journal of Marketing Research, 21 (August), 278–89.
44.
John, George and BartonA. Weitz (1989), “Salesforce Compensation: An Empirical Investigation of Factors Related to Use of Salary vs. Incentive Compensation,” Journal of Marketing Research, 26 (February), 1–14.
45.
Kaufmann, PatrickJ. and LouisW. Stern (1988), “Relational Exchange Norms, Perceptions of Unfairness, and Retained Hostility in Commercial Litigation,” Journal of Conflict Resolution, 32 (3), 534–52.
46.
KeetonW., DobbsD., KeetonR., andOwnD. (1984), Prosserand Keeton on Torts.St. Paul, MN: West Publishing.
47.
Klein, Benjamin (1980), “Transaction Cost Determinants of ‘Unfair’ Contractual Arrangements,” American Economic Review, 70, 356–62.
48.
Klein, Benjamin and KeithB. Leffler (1981), “The Role of Market Contracts in Assuring Contractual Performance,” Journal of Political Economy, 89 (4), 615–41.
49.
Klein, Saul, GaryL. Frazier, and VictorJ. Roth (1990), “A Transaction Cost Analysis Model of Channel Integration of International Markets,” Journal of Marketing Research, 27 (May), 196–208.
50.
Lewis, Richard (1982), “Contracts Between Businessmen: Reform of the Law of Firm Offers and an Empirical Study of Tendering Practices in the Building Industry,” Journal of Law and Society, 9 (2), 153–75.
51.
Linzer, Peter (1981), “On the Amorality of Contract Remedies—Efficiency, Equity, and the Second Restatement,” Columbia Law Review, 81, 111–39.
52.
Livermore, John (1986), “Exemption Clauses in Inter-Business Contracts,” Journal of Business Law, March, 90–102.
53.
Macaulay, Stewart (1963), “Non-Contractual Relations in Business: A Preliminary Study,” American Sociological Review, 28, 55–69.
54.
Macneil, IanR. (1978), “Contracts; Adjustment of Long-Term Economic Relations Under Classical, Neoclassical, and Relational Contract Law,” Northwestern Law Review, 72, 854–905.
55.
Macneil, IanR. (1980), The New Social Contract: An Inquiry into Modern Contractual Relations.New Haven, CT: Yale University Press.
56.
Macneil, IanR. (1981), “Economic Analysis of Contractual Relations: Its Shortfalls and the Need for a Rich Classificatory Apparatus,” Northwestern University Law Review, 75 (6), 1018–63.
57.
Macneil, IanR. (1982), Comments to the Workshop on Transaction Cost Analysis in Marketing (August), Evanston, IL.
58.
Meinhard v. Salmon (1928), 249 N.Y. 458.
59.
Metzger, MichaelB. and MichaelJ. Phillips (1983), “The Emergence of Promissory Estoppel as an Independent Theory of Recovery,” Rutgers Law Review, 35, 472–557.
60.
Muris, TimothyJ. (1981), “Opportunistic Behavior and the Law of Conduct,” Minnesota Law Review, 65, 521–90.
61.
Narasimhan, Subha (1987), “Modification: The Self-Help Specific Performance Remedy,” Yale Law Journal, 97, 61–95.
62.
Narasimhan, Subha (1989), “Relationship or Boundary? Handling Successive Contract,” California Law Review, 77, 1077–122.
63.
Noordewier, ThomasG.,GeorgeJohn, and JohnR. Nevin (1990), “Performance Outcomes of Purchasing Arrangements in Industrial Buyer-Vendor Relationships,” Journal of Marketing, 54 (4), 80–93.
64.
Palay, ThomasM. (1985), “Avoiding Regulatory Constraints: Contracting Safeguards and the Role of Informal Agreements,” Journal of Law, Economics and Organization, 1 (1), 155–75.
65.
Pruitt, DeanG. (1981), Negotiation Behavior.New York: Academic Press, Inc.
66.
Restatement of Contracts, 2nd (1981), American Law Institute.
67.
RobinD.P. and ReidenbachE.E. (1987), “Social Responsibility, Ethics, and Marketing Strategy: Closing the Gap Between Concept and Application,” Journal of Marketing, 51 (January), 44–58.
Schelling, ThomasC. (1956), “An Essay on Bargaining,” American Economic Review, 46 (June), 281–306.
70.
Scott, Robert (1990), “A Relational Theory of Default Rules for Commercial Contracts,” Journal of Legal Studies, 19, 597–616.
71.
Shell, RichardG. (1991), “Opportunism and Trust in the Negotiation of Commercial Contracts: Toward a New Cause of Action,” Vanderbilt Law Review, 44 (2), 221–82.
72.
Stern, LouisW. and TorgerReve (1980), “Distribution Channels as Political Economics: A Framework for Comparative Analysis,” Journal of Marketing, 44 (Summer), 52–64.
73.
Thomas, GloriaP. and GaryF. Soldow (1988), “A Rules-Based Approach to Competitive Interaction,” Journal of Marketing, 52 (April), 63–74.
74.
Uniform Commercial Code (1978), American Law Institute and the National Conference of Commissioners on Uniform State Laws.
Varadarajan, RajanP. and DanielRajaratnam (1986), “Symbiotic Marketing Revisited,” Journal of Marketing, 56 (October), 1–17.
77.
Vestal, AllanW. (1991), “‘Ask Me No Questions and I'll Tell You No Lies’: Statutory and Common-Law Disclosure Requirements Within High-Tech Joint Ventures,” Tulane Law Review, 65 (4), 705–74.
78.
Vincent-Jones, Peter (1989), “Contract and Business Transactions: A Socio-legal Analysis,” Journal of Law and Society, 16 (2), 166–86.
79.
Webster, FrederickE. (1992), “The Changing Role of Marketing in the Corporation,” Journal of Marketing, 56 (4), 1–17.
80.
Weizsacker, CarlF.F. Von (1981), Barriers to Entry.New York: Farrar Straus Giroux.
81.
Williams, OliverF. and PatrickE. Murphy (1990), “The Ethics Virtue: A Moral Theory for Marketing,” Journal of Macromarketing, 10 (Spring), 19–29.
82.
Williamson, OliverE. (1975), Markets and Hierarchies, Analysis and Antitrust Implications.New York: Free Press.
83.
Williamson, OliverE. (1979), “Transaction Cost Economics: The Governance of Contractual Relations,” Journal of Law and Economics, 22, 233–61.
84.
Williamson, OliverE. (1983), “Credible Commitments: Using Hostages to Support Exchange,” The American Economic Review, 73 (4), 519–10.
85.
Williamson, OliverE. (1985), The Economic Institutions of Capitalism.New York: The Free Press.
86.
Williamson, OliverE. and WilliamG. Ouchi (1981), “The Markets and Hierarchies Program of Research: Origins, Implications, Prospects,” in Perspectives on Organizational Design and Behavior, Van de VenA.H. and JoyceW.F., eds. New York: John Wiley & Sons, 347–70.
87.
Williamson, OliverE. and WilliamG. Ouchi, MichaelL. Wachter, and JeffreyE. Harris (1975), “Understanding the Employment Relation; The Analysis of Idiosyncratic Exchange,” Bell Journal of Economics, 6, 250–78.
88.
Wisconsin Knife Works v. National Metal Crafters (1986), 781 F.2d 1280.
