理性才能双赢：论承诺之前必须理清的概念

Win-win by reason: on the concept that must be clarified before commitment

社会进步需要合作,而合作需要合同双方坚守诚信。诚信原则贯穿于合作的全过程。合同谈判时要诚信,否则要承担缔约过失责任;合同履行时要诚信,否则要承担违约责任。即便是合作履行完毕后,合同双方仍要诚信履行后合同义务。其中,对诚信要求最严格的是在履约过程中。履约不诚信的后果最严重,而其最典型的形式就是违约。理性分析会发现,有些“违约”在签订合同时就注定会发生,有些“违约”完全可以避免。不仅如此,实践中还会出现误认为是“违约”或误认为“不违约”的情况。基于上述情况,笔者首先明确当事人违约有一部分源于签约时缺乏理性的思考和评估,承诺完成“不可能事件”;其次,将当事人签约时应当考虑或关注的情况分为必然事件、偶然事件和不可抗力并作简要的定义和分析;最后,提出建设工程合同中必须注意的几个建议。

Cooperation is required for social progress, andboth parties should adhere to the integrity of the contract in cooperation. The principle of good faith runs through the whole process of cooperation. The contract negotiations must be based on good faith, otherwise the breaching party should assume the contracting fault responsibility. The contract should be performed in good faith, otherwise the breaching party should be liable for breach of contract.Both parties shall fulfill their obligations in good faith even after the completion of cooperation, wherein the most strict requirement for good faith lies in the process of contract performance. The consequence of bad faith is the most serious, and its most typical form is breach of contract. Rational analysis shows that some "defaults" are bound to happen when the contract is signed, and some "defaults" can be avoided completely. In addition, it can be mistaken as "default" or "non-default". The author firstly makes it clear that a part of the breach of contract is caused due to the lack of rational thinking and evaluation, and some parties promise to complete the "impossible event" based on the above situation. Secondly, the situations that the parties should consider or pay attention to when signingin practiceare classified into inevitable events, accidental events and force majeure, andbrief definition and analysis are made. Finally, some suggestions that must be paid attention to in the construction contract are put forward.