| The foreseeability which is included in the Contract Law in China is of greatimportance in the process of assessing the scopes of damages recoverable. Thoughthe foreseeability is crucial for parties’ rights bound in contracts, the provisions of thislegislation have not been defined sufficiently and accurately in the Contract Law.Meanwhile, due to some questionable definition criterion on contract law theories, nouniform practical rules can judges follow when they try to make judgments.The economic recession has seen growing numbers of breach of contracts sincethe financial crisis erupted in the year of2008. The foreseeability can not be appliedeffectively resulting from the absence of legislations and outmoded provisions. Inorder to evaluate the damages justly and correctly in judicial practice, this paper willfocus on conducting the research on the problematic performance on theforeseeability from four parts and then bring forward my point of view on this issue.The first part of this thesis is on the structure of the rule of the predictability.Starting from the constitutive requirements, this part will determine a fine definitionon the basis of winnowing various theories ranging from different countries, such asthe UK, France, The United States, to a variety of scholars. Therefore this part willlay the foundation of theories for the rest of the paper.The second part of the thesis is on the main problems of application of theforeseeability in judicial practice. By combining the cases concerned and results ofjudgments, this thesis points out that no precise provisions on this issue exist in ourContract Law in force in terms of calculating the range of damages which should berecovered for the loss of party. Thus I will put forward the necessity and approachesto make the criterion on the foreseeability more accurate, considering differentlegislations like France and other scholars’ theories.The third party of this thesis is on the application of this rule in judicial practiceby interpreting the existing law system. As mentioned above the thesis, violations ofcontracts on purpose, compensations for mental damage and public interests are three typical situations where other theories and legislations have been able to coperespectively. Precise definition of the rule will be applied when the former two factorsare met, whereas the rule will be not be conducted when a contract is concerned withpublic interests.The last part of the thesis is on the suggestions on the foreseeability in ContractLaw in our country after analyzing the main problems in judicial practice. Thesuggestions come as follows:(1) Make the standards and considerations of theforeseeability more accurate;(2) Bring forward typical categories where the rule canbe applied;(3) Stress the urgency to issue the guiding cases by the Supreme Court.This thesis try to provide approaches to a more accurate definition of theforeseeability and solve the problems in judicial practice. |
