Research On The Rule Of Foreseeability In The Remedy For Breach Of Contract

It is one of the basic tasks of contract law to determine the extent to which the damages for breach of contract should be paid.Losses incurred by breach of contract can theoretically be of infinitude by virtue of the uninterruptable continuation of causational chains,and so can the amount of damages therefor.In order to fairly allocate risks among contracting parties,it is thus necessary to limit the extent of damages and one of the rules playing function of such a kind is the rule of foreseeability(the "Rule" or "Rules").The Rule is a widely adopted instrument for limiting the extent of damages for contract breach and is also the subject matter on which this dissertation intents to discuss.This dissertation purports to provide,through the institutional researches on the Rule,a useful reference to the relevant theoretical discussion and judicial practice of our country.Chapterâ… begins with a brief review of the history of origination and diffusion of the Rule,then summarizes the essentials of the Rules in French, English and American domestic laws,as well as international,regional uniform contract laws with additional specific discussions on the main issues concerning the Rule in each jurisdiction.The discussion on the French Rule mainly focuses on Article 1150 of the Civil Code of France, which also concisely illustrates the Rule's actual application with reference to judicial opinions of some French courts.The discussion on the English Rule purports to figure out the essentials of Test of Remoteness.In order to achieve this goal,four significant precedents are analyzed in detail, where the holdings thereof are abstracted and discussed.The discussion on the American Rule is made through annotating Article 351 of Restatement(second) of Contracts with reference to relevant precedents and statutes.Moreover,this chapter also makes a brief comparison among the Rules of CISG,PICC and PECL.Chapterâ…¡firstly makes a subject-oriented comparison among the Rules in French,English,American laws,the similarities and differences between which are indicated with necessary comments and illustrations. Then the institutional purposes of the Rule receives a detailed theoretical discussion,where the idea is brought forward based on the review,analysis, construction of the history of contract theory that the institutional purpose of the Rule is to make equality in exchange realized.Chapterâ…¢analyzes the problems in legislation and judicial application of the Rule before and after the enactment of Contract Law of the PRC and notes that one of the existing problems in judicial application of the Rule in China is the absence of an efficient judicial analysis mode for the Rule.For purpose of such a problem,this chapter suggests a tentative judicial analysis mode for the Rule which is drafted strictly on basis of the PRC law.The conclusive part discusses the contingency and inevitability of the Rule's birth and existence and some related issues on law-transplantation.