계약구속력의 근거에 관한 법이론적 고찰

A human is assumed as rational by Chales Fried's Promissory Theory based on the classical contract theory and Law and Economics grounded on the classical economics alike. However, if, in reality, humans suffer from the bounded rationality which is serous, a state interference may be necessary. Patrick Atiyah argues on this recognition that the ground for the binding force of contract is the action of detrimental reliance, etc rather than the contract party's intent. By the way, it is promise principle which supplies a ground of commitment that justifies such a reliance. In other words, the ground for such a reliance also is a contract party's intent(in this case, a promisor's intent). For this reason, Atiyah's argument seems to be unacceptable. To solve the problem of bounded rationality, contract parties frequently organize relational contracts or implicit contracts. Also, according to the recent behavioral economics, libertarian paternalism by choice architect induces contract parties to rational choices and thus improves economic efficiency. If so, relational contracts, implicit contracts, and libertarian paternalism by choice architect are helpful in some way or other to solve the problems caused by the phenomenon of bounded rationality, including the lack of intent and the precedence of state's efficiency calculation over a party's. As a result, we can keep arguing that the ground for the binding force of contract is the contract party's intent. For like Chales Fried's Promissory Theory, the Law and Economics focuses on a party's intent.