Application And Perfection Of Foreseeability Rule In The Compensation For Expect Interest Of Breach Of Contract

Throughout the legislation and practice of the compensation for expect interest of breach of contract around the world, the foreseeability rule has a significant role in the system of compensation for breach of contract as an important restrictive rule. This paper aims to explore legitimacy of the application of the foreseeability rule in the system of compensation for expect interest of breach of contract, the development of this rule in theory and the specific application in practice. According to the analysis from different types of cases in China's judicial practice and the inadequacy of the proposed application, the author of this essay elaborates own opinions as the reference to perfection.This paper is divided into five parts. The first part mainly introduces the legal basis of compensation for expect interest of breach of contract, such as the concept and type of the expect interest of breach of contract. The view of this part is that the compensation for expect interest of breach of contract is in line with the 113 rd provisions of the "contract law" in China. The compensation for expect interest of breach of contract is the proper meaning of compensation for breach of contract.In the second part, it introduces the relationship between the limitation of the compensation for expect interest of breach of contract and the foreseeability rule. From the necessity of the limitation of the compensation for expect interest of breach of contract, it explores the specific relationship between the produce and development of foreseeability rule and the limitation of compensation for expect interest of breach of contract. The view of this part is that the connection between the produce and development of this rule and the discussion of the legitimacy of the compensation for expect interest of breach of contract is inseparable, and the main role of the rule is to limit the compensation for expect interest of breach of contract.In the third part, it discusses the applicable conditions of the foreseeability rule in the compensation for expect interest of breach of contract. It analyses the subject, content, extension and the judgment standard of having foreseen or being ought to have foreseen in the legislation and specific application of foreseeability rule in the compensation for expect interest of breach of contract from the comparative law. The views are as follows: the subject of foreseeability rule should be the party who breached, the time is at the time of the conclusion of the contract, the content is the type of the damage not the degree or amount, and the standard of having foreseen or being ought to have foreseen should be generally reasonable person standard.The fourth part is the investigation of judicial practice of the application of the foreseeability rule in the compensation for expect interest of breach of contract in our country. Firstly, it analyzes the liability of compensation for rescission of a contract due to breach. The courts have different attitudes to compensation for expect interest of breach of contract, it gives theoretical analysis of this phenomenon, then concludes that the liability of compensation should contain the compensation for expect interest of breach of contract. Secondly, the reduction and increasing of penalty also take the compensation for expect interest of breach of contract into account in legislation and practice, so it is rational. Next, the paper discusses comprehensive application of foreseeability rule and reduction rules in the condition of non-market and market price fluctuations, the court should consider all relevant factors, analyze the foreseeability of the default party in order to make a fair judgment. And then it studies the foreseeable content of expect interest of breach of contract. There are different practices. There are many courts requiring the default party to foresee the amount of the expect interest of breach of contract. Finally, in the foreseeable judgment standards, the court generally requires the victim to bear the burden of proof on the amount of the expect interest of breach of contract, leading to excessive demand for the foreseeable content. By empirical analysis of the relevant cases in China, it discusses the different methods to deal with the problems of foreseeability.The fifth part is the response to the problem in the process of the application of the foreseeability rule in the compensation for expect interest of breach of contract. By making clear that the foreseeable content of the compensation for expect interest of breach of contract is the type of the damage rather than the degree or amount, distinguishing usual case and special case, setting information disclosure obligation, reducing standard of proof of expect interest of breach of contract on amount, the author of this essay believes that the application of foreseeability rule in the compensation for expect interest of breach of contract can be improved.