The Research Of Foreseeability

Foreseeability is one of the most important rules in civil law. Chinese contract law establishes the rules. So far, there are so many papers about it in contract law. But in tort law, it is mainly involved in common law while fewer studies about it in China. This paper attempts to do some research of the rules in both contract and tort law fields in order to give my advices on some confused questions in contract law and learn from tort law.The first part will make a concrete analysis of the theoretical basis. From the value of the law, the foreseeability embodies the requirements of freedom. Freedom has two aspects--positive and negative one. Foreseeability is closely related to them. Through improving one's foreseeablity, his scope of action can be expanded. Then the freedom of action is ensured. It also includes the requirements of order. Everyone is responsible for the consequences of his foreseeable conduct then the others can have expectations. So it is helpful for stable social order. From the perspective of economic law, the rules are based on efficiency. The foreseeablity in contract law can reduce the breach of contract, because the contractual party has to consider what he would get from the default. As a result, it is useful for the efficiency. On the same time, in tort law, if everyone was liable for unforeseeable losses of his conduct, people will spend more time on how to prevent the injury and also may reduce similar reasonable and necessary conduct. The society will be influenced and this does not accord with the requirements of efficiency.The second part will analyze the elements of the rules. In contract law the foreseeable party should be the defaulting party while it is infringer in tort law. On the problem of foreseeable time, generally the contract and tort law are on the time of conduct, but there are some exceptions. Foreseeable objects and damage have close relation. This part mainly introduces and summarizes the application of foreseeability in many countries in common.The third part mainly clarifies some relevant concepts which have close relations with foreseeability. Firstly, for the influence of fault, this part will analyze from contract and tort law. In the contract law, there are no arguments on negligence. Intent and gross negligence varies with the liability principle. In no-fault liability principle, it should apply foreseeability rules to limit the compensation. And in fault liability principle, intent or gross negligence is condemned, so there is no need to limit the compensation. In tort law, if the offender is intentional, the rules are not used and in negligence only foreseeable plaintiff is included.Secondly, in judging whether intervening causes interrupt causality, foreseeability plays an important role. If intervening causes are foreseeable, it doesn't exempt the defendant's legal responsibility for his own negligent conduct. But when these intervening causes themselves are not foreseeable or although foreseeable but the consequences have far exceeded, the intervening causes replace the defendant's conduct and interrupt the causal chain.Finally, it will discuss how the foreseeability limits the damages, In contract law, if the damages are foreseeable, these damages are compensatory, hi tort law, as long as damages are about in the scope of the foreseeable damages, the exact way does not matter. But the rules of head eggshell are exception.The fourth part discusses what will be considered when foreseeability is applicable in contract and tort law. Foreseeability has much to do with value judgment and is flexible. When foreseeability is applicable for limiting compensation in contract, it should think about the individual situation such as the identity, trading rules and occasions and so on. These influence foreseeability in some degree. In tort law, we also need to consider if we make the damage foreseeable what will happen to the whole industry and society. The question involves excessive prevention and public policies. This section refers the parties of personal circumstances, trade rules and occasions, excessive prevention and public policies.The fifth part is also an important one. This section will introduce the use of foreseeability in the contract law and also learn from other countries. Meanwhile it will discuss how to use the rules when contractual party is in gross negligence or intent and how to clarify the losses. Because our contract law generally executes no-fault liability principle, this makes the intent or negligence has little effect on determining the compensation. The foreseeabiliy is the same. But if the part is intent, the foreseeable time should be the time of the breach of contract, In the classification of losses, we can learn from common law—general loss and special one. When it refers to special losses, whether the other party is informed and the consideration can also be learned. This will benefit the disorder of classification of losses in law.The continental law's four elements of liability principle predominates our tort law. And fault is a kind of thought. Meanwhile the duty of care is not clear as it is in common law. So does it mean, in our tort law, we cannot apply the foreseeability? In my opinion, in judging the fault, we have used the foreseeability in practice, but it is not clearly stated. Such as negligence is one should foresee the consequences of his conduct, but he does not, or he foresees the result will happen but do nothing to prevent it because he believes the results can be avoided,In judging causality, although our country follows the continental law, but with the differences between continental law and common law are less and less, it is possible for us to use foreseeability to judge causality. Finally, to establish a reasonable person's standard is very important. At the same time, choosing some symbol cases in our nation is a necessary method. Meanwhile the foreseeable plaintiff theory is also useful for us.