A Study Of Foreseeability Rule In Contract Law

Foreseeability rule was first regulated in Napoleonic Code in 1804 and was further enhanced in British and American laws with cases. In China, foreseeability rule is stipulated in Article 113 Contract Law. But with very few words of stipulation, it seems to be too general and basic. No systematical principle design has been formed in foreseeability rule in Chinese Laws, because we just drew on the experiences of foreign laws in terms of that. Over a decade has passed since the first stipulation of foreseeability rule in Chinese Laws. However, in courts, judges barely use this rule to defend and argue.The author starts from the origin of foreseeability rule. The first part introduces the first regulation of foreseeability rule in French Law, its development in British Law, the international adoption and recognition in lawmaking etc. The second part analyses several theories, which act as the theoretical basis of foreseeability rule and then proposes the author’s personal view. The third part discusses the range of application of foreseeability rule in China combining with foreign condition. The fourth part demonstrates the basic concept of foreseeability rule: foreseeable subject is the default party; foreseeable time is the time the contract being signed; foreseeable content should include the type of damage, rather than the specific degree the damage would be. But the damage should reach a certain degree. The fifth part emphasizes to discuss the judgment criteria of foreseeability and assessment factors on judging foreseeability. The final part summarizes the current situation of legislation and judicial practice of foreseeability rule in China. On the basis of that, the author points out the existing problems of foreseeability rule of our country and makes some own suggestions for its improvement.