On The Rule Of Foreseeability In Damages For Breach Of Contract

Article 113 of the Contract Law of China stipulates the foreseeability rule as the limiting rule for the scope of damages for breach of contract.If a damage is unforeseeable to the defaulting party when the contract is concluded,the damage is excluded from the scope of damages.However,in judicial practice,the application of the predictability rule is in conservative position.The claim for compensation is often denied on the grounds of unforeseeable damage.The legal precedent,which determines that the damage is foreseeable and supports the claim for damage,belongs to the case of low probability in judicial practice;In the same case,its frequent that the judgment of predictability is diametrically opposite in different stages.Most domestic scholars believe that the root cause of this phenomenon lies in the vagueness of the theoretical connotation and judgment criteria of the predictability rule.Aiming at the specific application of the predictability rule,they put forward a variety of solutions such as alternative standard,great possibility standard,rational person standard and so on.However,the rational person standard adopted by most viewpoints also has its impropriety.At the same time,the predictability rule also has its own difficulties.Even if the loss is foreseeable,the application of the rule will be unreasonable if the parties do not explicitly or implicitly bear the risk of the loss.On the contrary,the evolution of the provisions dealing with the scope of damages for non-performance of the contract in Japan,reflects the view of attaching importance to the agreement of the parties and the risk allocation made by the contractual norms for the purpose of realizing the interests of the contract.It also puts forward the argument that the judgment of predictability should be based on the interpretation of the contract.In the process of amending the Debt Law of Japan,the changes in the provisions of the trial case and related discussions also involve specific issues such as whether a separate rule should be set up for intentional non-performance.Compared with quite causality theory,the predictability rule does have its advantages,but it should also be noted that the essence of the predictability rule lies in the fact that both parties concerned use the contract to realize the benefits of the risks,based on the contractual norms of risk allocation,and This point of view considers the theoretical composition and factors of predictability rules to make up for the problems.Similar to our country,the predictability rules in Japanese law are both successive results,but their characteristics are influenced by various damage theories in the development process,such as the predictability rules in civil law,Anglo-American law,and considerable causality.In this regard,compared with simply examining AngloAmerican law or German law,it may be of unique significance to investigate the development of the doctrine of the scope of damage compensation for breach of contract under Japanese law.This revision of the Japanese debt law defines the scope of damages based on the scope of protection.Its consideration of the path of damage risk allocation in contractual agreement should be a good reference for China.