Research On The Foreseeability Rule On Breach Of Contract

Predictability rules can reasonable distribution of benefits and risk between the parties, maintain the balance of interests between the parties, and to encourage efficient information transmission, the judicial practice of China for predictability rules apply rarely, this reflects the predictability of contract law the provisions of article 113 of the standard uncertainty, a fuzzy rules apply, in the face of increasingly complex contract dispute, to confirm the range of damage compensation is more difficult, comparison method was studied for the predictability rules, we discussed the problem of the extent of breach of contract damages at the same time should be according to the actual situation in our country, analysis of predictability rules in our country the problems in the judicial application and indicate its way out, to build accord with the actual demand of local predictability rules, ensure contract justice, to ensure the safety of trading.The first part:the theory basis of predictability rules, the part is the main content of the theory for predictability rules. Predictability rules was described in detail in the germination and development of Roman law, based on the theory of fair and free, risk burden, in line with the aim of balance the interests between the parties analysis predictability rules foresee the main body. The second part:domestic and foreign related legislation and theory about predictable rules and precedents, this part through the analysis of the typical cases of Anglo-American law system, law and civil law legislation regulation has been clear about the general situation, the special circumstances of predictability rules apply the difference, the breaching party’s subjective state influence on rules apply, damages of Germany and Japan, limit the scope of the legislation. The third Part:the foreseeable rules applicable, from the rational expectations and implied agreement rules to analyze the predictability of the judgment standard, the type of contract, the degree of knowledge of the parties, the obligation of information revealing aspects to consider the different of predictability rules apply, in the process of predictability rules apply to conform to the public policy, the principle of proportionality, safeguard the interests of both parties. The fourth part: the previous part of the analysis of predictability rules, put forward the Suggestions of perfecting our country’s rules of predictability. First, on the legislation to make a clear distinction between deliberate and gross negligence, to distinguish the general situation and the special circumstances apply to the rule, and encourage the parties in the form of legislation of risk burden in terms of the contract, liability for breach of contract to be clear. Second, strengthen the judge’s discretion in the judicial use of norms, strengthen the exemplary role of guiding cases the supreme law, refer to the independent third party damage assessment report.