Research On The Type Of Foreseeability In Sales Contract

Article 113(1)of the contract law of China prescribes the foreseeability.In addition to Article 113(1)of the contract law,The guiding opinions on several Issues concerning the trial of civil and commercial contract disputes under the current situation by the Supreme People’s Court in 2009 are used to assistant determinate the foreseeability.But in addition to the above provisions,there is no relevant judicial interpretation on the specific provisions of the foreseeability,which makes the foreseeability lacking certain practical operability,and has not yet formed a unified theoretical system of the foreseeability in actual situation.In this paper,the data of 146 judicial cases of the Supreme People’s court and the Provincial Higher People’s Court about the application of the foreseeability are collected from all cases in pkulaw database.In the form of chart,it intuitively shows the judicial decisions on relevant disputes from 2010 to 2019,including the number of cases,the distribution of time and region,and the court’s decision results.This paper,in the one hand,studies the cases of sales contract related to the foreseeability since 2010,in the onther hand,classifies and analyzes the dispute focus,adjudication results and adjudication reasons of the foreseeability in each case.There are four disputes about the court’s application of article 113(1)of contract law of China in judicial practice.First of all,with regard to the understanding of article 113(1)of contract law of China,this paper tends to adopt the theory of the foreseeable rather than the causality.Secondly,the factors that affect "foreseeability" are mainly as follows: the purpose of the contract between the parties,the contents of the contract between the parties,the trading habits between the parties,the nature of the object of the contract,the industrial identity of the defaulting party,the industrial identity of the observant party,the loss caused by the transfer purchase,and the fact of profit during the performance of the contract.When the court determines the predictability of the breaching party,the first consideration is the contract between the parties.In the case of no agreement on predictability in the contract between the two parties,the court considers the factor that the defaulting party is familiar with the profit model.Thirdly,the factors affecting "un foreseeability" are mainly as follows: the observant party has no evidence to prove that the breaching party can foresee,the observant party does not indicate the purpose of the transaction,the extent of damage to the unforeseeable interests,and the loss of the available interests beyond the unforeseeable agreement.Finally,the exceptions to the application of the foreseeability include fraud exception,intentional exception or gross negligence exception.However,the above two exceptions have limitations on the scope of application.