预约功能的法经济分析——兼评“疑约”的两种解释论

Economic Analysis of Precontract’s Function——Comment on the two interpretation theories of “suspicious contract”

以缔约意向形成、预约成立以及本约成立为三个标志性时点,合同成立可以分为预约成立和预约促成本约两个先行后续的阶段。预约的法经济分析表明预约旨在成立本约且构成新的缔约约束,具有缔约担保功能和缔约延缓功能。功能视阈下,认定当事人对是否订立另一个更完备的合同约定不明确的"疑约"性质时,以探求当事人真实意思为本的主观解释论优于以合同条款内容判断合同属性的客观解释论。

Taking the Intention to form a contract,the establishment of a precontract,the establishment of the contract as the iconic time point,we can divide the process of establishing a contract into two phases: the stage of setting up a precontract,and the stage of establishing a contract on the basis of a precontract.The economic analysis of the precontract shows that a precontract is intended to establish a contract and constitutes a new contracting constraint.A precontract has two functions: guarantee contract establishment and delay contract establishment.Under the functional threshold,the subjective interpretation theory is superior to the objective interpretation theory which argues contract attributes should be judged according to its terms,when a "suspicious contract" is determined.The "suspicious contract" should be confirmed as a precontract.This is in line with the principle of freedom of contract and the original intention of the principle of encouraging transactions.