| 1．The fool theoryI, the writer, am a worker for practical affairs of law in Taiwan, have been worked on the practical affairs of a lawyer for many years with a major job as an agent to draft contracts and to suit etc. I have got many thoughts and feelings in the experiences of working of years, and I cannot help writing them down. A question has germinated in my mind for years: Does a contract protect a good guy or a wise guy? The gist of the law for contract is to protect a good guy; however, things often come to contrary ends.Modern economic theories suppose that men are "rational persons" and "economic persons", they can be clearly aware of their benefits. However, the truth is, men of kind hearts often become fools jeered at. Contracts of good quality shall not merely provide stipulations to make fools much hurt and thereby become wiser and wiser; only those contracts that provide stipulations able to protect fools are contracts of good quality.The "fool" talked about here actually can be explained broadly, it includes the meaning of an "overly faint-hearted person" that tends to give promise; a society of specialties and sharing out of works involves contracts concerning the fields of many specialties, ordinary people can not understand those contracts such as medical contracts, lawyer contracts and technologic contracts etc., and this results that "promises will be made out of ignorance"; moreover, both two parties may be "foolish" and both make promises. Therefore, under the strong impelling of private interests in the society with fine sharing out of works, every one can be a fool in the time and the space of a contract. Protection for fools thereby is a very imperative thing.Conventional contracts evidently have a radical defect, wherein they are supposed that men are "rational persons" and can effectively handle their own interests. And the contracts are entered into on an overly simply required basis, that is, when the "opposite" opinions of both parties (or all parties) get mutual consent, the contracts are completed, and the content of each contract then is "integrally formed" of the opinions. Here, under the imaging combination which is "rational and mutual opposition inclusive", the weak parties surely are sad defeated losers.We can easily find that, the birth of a contract does not certainly mean that the contract can be completely performed; a baby just born can never stand up for walking, performance of a contract always is a course of growth rather than a goal to get in a shot. By all means, we can try to stipulate for the contract to make it very detailed in advance, and then "perform according thereto"; however, we have found in practicing that, it is absolutely impossible to completely perform according thereto; there must be a lot of unexpected things that are large and small in the course of performing the contract, a creditor of blockhead certainly can make thorough unfortunateness of a debtor. In view of this, to "perform according thereto" is never the sole way for performing, there are evidently some things else in the contract.Each contract has its essential requisite that is a common object all the interested parties desire tomake come true; in lack of such an essential requisite, the contract will be very weak actually. The problem is not exactly that someone cheats others, or someone makes others obscured, and it is not exactly that the information is not equitable or that someone tries to take advantage of others; the problem nowadays is often that both two parties making the contract are in lack of information and experiences, and even that they only have ideals on the contract to be made without any typical model in practicing, they only image rather than get many experiences, or even that if they have planned, the plan is only an imagination of an object that not yet happens. While in practicing after entering into the contract, the ideals disappear, the plan is ineffective, the imagined object never happens perhaps; rather, there are many new issues c...
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