עילת הקשירה בדיני התחרות: היבטים קוגניטיביים והתנהגותיים

Antitrust laws prohibit a monopolist from making the sale of the product or service over which it holds a monopoly conditional on terms which, by their nature or according to common commercial usage, are unrelated to the sale. Essentially, a monopolist is prohibited from making the sale of the product or service conditional on the purchase of another service or product – a practice known as ‘tying’. Intuitively, tying harms consumers in a direct manner. It forces them to purchase a product that they do not want in addition to the product they desire. Nonetheless, the literature has long argued that such simple exploitation is impossible. Although the literature has identified certain market conditions under which tying may be harmful, the usage of tying in the most straightforward and intuitive manner is still considered impossible.This article offers two explanations for the profitability of tying from the monopolistic seller’s perspective. The explanations are based on well-known cognitive biases. The article shows that consumers’ susceptibility to these biases can systematically and routinely be used by monopolists to increase the amount that consumers are willing to pay for the tied products. The article also explains why exploiting these biases is contingent on the seller’s market power.The analysis does not necessarily imply that the prohibition on tying is justified. The normative implications of the analysis depend on one’s attitude toward exploitation of cognitive biases, and on a balancing of the benefits of the prohibition and its costs. Nonetheless, the analysis can explain the legislator’s concern with tying. The analysis also reinforces the basic intuition regarding the profitability of tying from the monopolist’s perspective.