The Foreseeability Rule In Default Damages

As one of the restrictions to the complete compensation principle of damages,the foreseeability rule has widely accepted and applied in most countries of the world.The foreseeability rule has established in Article113of Contract Law in China. Butthe rule has much to improve in China’s legislative and judicial practice. In order tomake the application of the rule in China much better, the paper discusses theintension and value of the rule by its development history and reviews. It alsosummarizes and contrasts the content of the foreseeability rule of French law、Anglo-American law system、PICC and CISG. At the end, the author analyzes thebasis and the problems of the rule to judge in China’s legal practice combined withthe judicatory cases in China.The first chapter discusses the evolution of the rule. First, the author reviews theformation and development of the rule: originated in roman law、established in Frenchlaw、developed in Anglo-American law system. Second, the author reviews thearguments in defense of and against and gives the author’s opinion about the rule,which is the rule has special value and place in civil law for its theoretical basis,including the theory of autonomy and policy in French law and the efficiency andjustice in Anglo-American law, and also has challenges for the flexible judgmentstandard. At last, the author compares the foreseeability rule with the theory ofrelative causality、the foreseeability rule in tort law and the fault.The second chapter talks about the applicable scope and content of the rule. The author compares the content of the rule from the following aspects: the foreseeablesubject、the foreseeable time、the foreseeable content、the foreseeable standards of theFrench、Britain、the United States and the international convention, and gives theconclusion that the foreseeable subject should be the defaulting party、the foreseeabletime should be the time when contract is signed、the foreseeable content should be thetype of damage and the foreseeable standard should be the objective standard. For thescope of the foreseeability rule, it’s applied to the liability for breach of contract. Andit also can apply to the mental damages compensation for breach of contract.The third chapter talks about the condition of the basis judgment of theforeseeability rule in our country’s legal practice. The author pointed out the mainbasis of the rule judgment according to the rule application in the judicial cases ofChina and the problems it existed.