On The Forseeability Rule

With the extensive and deep development of commercial affairs, the type and scope of the damage compensation for breach of contact have changed stealthily. One party of the contract always hope to receive compensation for all injuries they suffer, but the other party hope to acquire liability exemption for the unpredictability in contract signing. At the first beginning of creating, forseeability rule had the responsibility to limit the scope of damage compensation. During its development and application, the difference between the two genealogies of law didn’t interpret them to meet each other half way. The value basis which supports the forseeability rule can’t leave honesty, fairness and justice. Because of the few words of forseeability rule in the Law of Contract, in judicial adjudication, the judges always neglect to analyze the elements of forseeability rule and measure the case with the view of the third person so that the arguments are deficient and the results are unjust.From the view of comparative law, the establishment and development, value basis, constitutional elements of forseeability rules in the two genealogies of law are analyzed. The relationship with non-property damage compensation, principle of proportionality, policy of the law is involved. Combining with the current situation of the rules’ application in China, the importance of detailing the elements of the rules is discussed.The structure of the article is as follows:Chapter one introduces the origin and the development of the forseeability rule in the two genealogies of law. It believes that the forseeability rule can date back to the period of Roman law. The article analyzes the influence of the default parties’ objection and deliberation on damage compensation for breach of contract in forseeability rule from establishment, development to transplantation. The historical background and perfecting process of the forseeability rule in American, England and France are introduced. And the difference of forseeability rule in the two genealogies of law is compared.Chapter two introduces the value basis of the forseeability rule in the two genealogies of law and put forward that honesty and credit, fairness and justice should be the value basis of the forseeability rule. Meanwhile, the academic controversy whether forseeability rule equal to casual relationship is analyzed, and then the conclusion that they are different in structure and function and have no comparability is drawn.Chapter three analyzes the constitutional elements of the forseeability rule in the view of comparative law. Combining with the negotiation of the commercial affairs in our country, the necessity of constructing a reasonable third person and how to construct are put forward for the currently predictable contents.Chapter four analyzes the type of damage compensation with the target of forseeability rule-faced damage compensation for breach of contract. When breaching laws, how to define the types of injury, this type’s scope and extent of compensation is conceived. Through the study of corresponding judgment, the author believes that the starting point of applying the forseeability rule is improper. The necessity and possibility of applying the forseeability rule in non-property damage compensation are analyzed.Chapter five combines the influence of current policy of the law on damage compensation for breach of contract and analyzes the existence value and variation trend. The author believes that it’ more reasonable to apply the forseeability rule after distinguishing the public enterprise. With the objective justification, the ideas that the principle of proportionality intervenes the damage compensation for breach of contracts and plays restricted function with forseeability rule are put forward.