On The Foreseeability Rule In The Contract Law

The foreseeability rule is also called reasonably predictable rule, which refers tothe rule that one party of the contract bears the liability due to the breach of thecontract, and the extent of compensation shall not exceed the losses foreseen orshould be foreseen when the party of contract conclude the contract. As an importantrule to limit the scope of damages for breach of compensation, the foreseeability ruleplays an active role in reasonable sharing contract risk, guaranteeing the tradesecurity and maintaining the contractual justice. At present, the foresseability rule iswidely adopted by many countries in the world as well as in the internationallegislation. The article113thof contract law of China also makes a provision forforeseeability legislatively, but the content is too simple without a clear definition ofspecific applicable standards. This paper uses a way of combining the theory withthe practice, and through comparing the more mature legislation and doctrines of theforesseability rule in other countries to stress on analysis of the problems of theforesseability rule existing in legislative and judicial practices, and then refers to theadvanced legislative and judicial experiences of other countries to propose somesuggestions for further improving the foresseability rule in China. This paper isdivided into three chapters, and the structure is as follows:The first chapter introduces a general overview of the foreseeability rule. Itarranges and reviews the development history of the foreseeability rule.The ruleoriginated in Roman Law, was established in French Law, and developed and improved constantly in Anglo-American law system. It also studies the basicstructure of the foreseeability rule, and then through the comparison of thelegislation and the doctrines of France, Britain and the United States, includingcombining with the important international conventions, to carry out an analysis ofthe foresseability rule’s major components such as the subject, the time, the contentand so on, and based on this to point out the different features of the foreseeabilityrule’s setting under different theoretical guidances, proposing personal views.The second chapter analyses the legislative status of the rule in our country, andpoints out some problems existing in current judicial practice. For instance, there is alack of a uniform classification for contract losses, and the judgment standard isambiguous, and the judging factors are inconsistent, and the excluding applicationunder special circumstances is not clear and so on, and analyses the major cause ofthe existing problems.The third chapter puts forward the legislative and judicial improvementsuggestions of the rule,based on the advanced experiences of other countries, as wellas combining the main problems appearing in the judicial practice of our country. Inlegislation, the applicable standards and important reference factors should be clearlyforeseen, as well as clearing the exclusions and application of the foresseability ruleand foreseeable time exceptions and so on. In justice, the reasonable proposalsshould be proposed so as to proper use the thoughts and approaches of theforeseeability rule. It should be clarified that whether there is a causal relationshipbetween the breach and the damage, in order to further improve the burden of proof,while strengthening the case instruction, thereby making the foreseeability rule havemore certainty and operability in judicial practice.