The adjudication of accounting-based compensation contracts in the pre-1934 period

Abstract

During the nineteenth and early twentieth centuries, many aspects of business organization and relations in the US were left to ostensibly private arrangement, including the accounting measures, rules and procedures which governed particular agreements. The existence of these accounting-based provisions or ‘accounting contracts’ is frequently cited in the literature on US accounting regulation. However, relatively little is known about their treatment by the US courts. This paper examines the adjudication of the most litigated type of accounting contact, the accounting-based compensation agreement, prior to 1934. Drawing on Braucher's analysis of the regulatory dimensions of contract (1990), the study finds that even in the ‘pre-statutory’ period external normative definition was essential to the enforcement of these agreements. This evidence suggests that the dichotomy between contractual and non-contractual legal approaches pervading the literature on accounting regulation may be exaggerated and raises questions about calls to replace ‘regulation’ with ‘freedom of contract’, i.e., suggestions to free accounting relations from external normative constraint.