A Study On Judicial Application Of The Rule Reasonable Foreseeability

The civil law is complicated and profound, involving a lot of statutory rules, one of which is reasonable foreseeability. It is sometimes controversial for judgment of compensation for damages. In usual cases, damages due to violation of agreement shall be completely compensated, but damages due to violation of agreement not only cover the direct damages which are seldom disputable, but also the relatively uncertain losses in acquirable interests. The futurity and exportability of acquirable interests lead to difficulties in affirming the scope of damage compensation. Therefore it is necessary to define acquirable interests. Reasonable foreseeability is an important rule to determine compensation for damages due to violation of agreement.The first part of this paper discusses the necessity of reasonable foreseeability in judicial application. The author firstly discusses the establishment condition of the rule from perspective of the concept of reasonable foreseeability and essentials of establishment, and then introduces the historical development of reasonable foreseeability, by taking the typical nations in two law systems as examples. Furthermore, the author introduces the development of reasonable foreseeability in Chinese laws, with a special explanation that the influence of such a rule is profound after reasonable foreseeability is clearly stipulated in the contract law due to broad coverage of application scope of the contract law and a legal reference is provided for judgment of damage scope due to violation of agreement. It is noticeable that the rule has played an active role in our judicial practice, and even had a great significance on our economic and social development. Thus, at the end of this part, the significance of reasonable foreseeability in judicial application has been illustrated, including control of transaction cost, maximization of interests, exemption of liabilities for distant damages, reflection of honesty and credibility, and advocation of fairness and justice.In the second part, the application of reasonable foreseeability in the contract law is systematically illustrated from three aspects, including the application scope of reasonable foreseeability in the contract law, the application condition of reasonable foreseeability in the contract law, and constraints influencing application of reasonable foreseeability. The application scope is classified into general scope and special scope. The former refers to the common circumstances to apply the rule, while the latter refers to special situations to apply this rule, including contracting fault liabilities, willful default, moral damage, and other damages against violation beyond the contract. The application condition should be the time when the violation of agreement made by one party has infringed the interests of the other party. Parties engaged in the agreement and the contents of agreement are the constraints for application of the rule. This part is a major part to study reasonable foreseeability in this paper.In the third part, the paper discusses the application scope of reasonable foreseeability in Britain and American tort laws, application scope of compensation for damages, and the scope of reasonable foreseeablity in tort, from the perspective of the application of reasonable foreseeability in tort laws. While tort and violation are overlapped, reasonable foreseeability could play particular rules. In torts, reasonable foreseeability is a major rule used to indentify the causes in tort of negligence, as well as the essential condition for the offender of negligence to assume liabilities. The application scope of compensation for damages due to infringement mainly includes the body, subject, time, and content in foreseeability. The scope of reasonable foreseeability in infringement contains two parts, including parties influenced by damages due to infringement and the type of damages caused by illegal behaviors.In the fourth part, the author makes suggestions on improvement of judicial application of reasonable foreseeability, including clarity of judicial application of reasonable foreseeability, definition of the degree and criteria for judgment of reasonable foreseeeability, regulation of the execution of judge’s discretionary power, and clarity of parties’ duty of disclosure ahead of time on foreseeable damage. As the paper points out, there are definitely a lot of noticeable problems in practice of reasonable foreseeability. Some judges are so timid in practice of the rule that the non-breaching party fails to be compensated. Alternatively, some judges are not able to determine the limit of reasonable foreseeability so that the compensation scope is amplified to make to breaching party over pressured.Since the author has experienced many typical cases in judicial practice as well as our daily life in which reasonable foreseeability can be applied, the author has a deep feeling to application of reasonable foreseeability. Therefore, the author hopes this paper could help the improvement and application of reasonable foreseeability.