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Rules of foreseeability

Author: WeiXiaoFang
Tutor: SunXueZhi
School: Jilin University
Course: Civil and Commercial Law
Keywords: Foreseeability rule Fault Duty of care Causality Liquidated damages
CLC: D913
Type: Master's thesis
Year: 2011
Downloads: 166
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Abstract

Foreseeability rule is civil law system is one of the more important rules. Contract Law in China also established the rules, so the rules of contract law apply more research, but in the field of tort foreseeability rule mainly been involved in the Anglo-American law, but few studies in our country . This paper attempts to contract law and tort law rules applicable to the two areas to conduct a comprehensive analysis of the contract law of some controversial aspects to present their views, and Anglo-American tort law would be to apply this rule to get draw . The first part will be the theoretical basis of foreseeability rule for specific analysis. Value from the perspective of law, freedom of foreseeability rule embodies the requirements. Free two aspects - positive liberty and negative liberty with the foreseeability rule is closely linked to the perpetrator foreseen by improving their ability to expand their scope of activities, then the perpetrator's freedom has been secured. Also foreseeability rule also embodies the order requirements. People only act on their own responsibility for the consequences can be predicted, so that everyone on the behavior of others there is a corresponding expectations, thus contributing to social stability. From the perspective of law and economics, predictability rules established on the basis of efficiency. Foreseeability in contract law rules can constrain the effectiveness of defaulting person to be considered for breach of contract, breach reduced in order to achieve the efficiency of performance of the contract. Tort law, if required everyone to act on their own due to unforeseen consequences, then it will make people spend more time on how to prevent the occurrence of damage, there are also likely to reduce similar behavior is reasonably necessary to affect further development of the society, does not meet the efficiency requirements. The second part will be predictable rules of the elements analyzed. In anticipation of the main issues, contract law should be the defaulting party. In tort law, the subject is foreseen perpetrators. Contract law and tort law in anticipation of the body is the same shall be the obligation of reparation. In the foreseeable time, contract law and tort law generally are when the act, but there are some exceptions. Object and the damage results foreseen are inextricably linked. This section is a summary of the main contract law and tort law rules applicable foreseeability commonalities, and major countries in the world situation, and so on for a brief introduction. The third part is to clarify the rules foreseeability relationships with some related concepts, these concepts with the applicable rules of foreseeability has a very close relationship. First, fault foreseeability rule on the impact on contract law and tort law from two aspects. In contract law, for negligence under state rules applicable foreseeability no objection, but in intent or gross negligence, breach of contract responsibility principle because differ. In the implementation of the principle of no-fault liability in the case, the rules should be applied to limit the predictability of the defaulting party the scope of compensation, and in the implementation of the principle of fault liability in the case, willful default or gross negligence is reprehensible, then you need to limit breach human damages, are also not apply foreseeability rule. In tort law, if the perpetrator is intentional, then, that the willful infringement, there is no room for foreseeability of the applicable rules. Negligence of the defendant when he was only when their actions could reasonably foreseeable affected person can be responsible for the foreseeable plaintiff. Second, in determining whether intervening causes disruption causation, foreseeability rules play an important role. If the intervening causes are predictable, it is usually not absolve the defendant because of his negligence caused liability. But because these interventions are inherently unpredictable, or they can be expected although the result has far exceeded the expected range, intervening causes became replaced reason, disrupting the chain of causation. Concludes with a discussion of the rules on behavior is predictable consequences of the damage caused by the limited role. In contract law, damages can not be foreseen if the result, then the damage can not be compensated. In tort law, as long as the damage is can be broadly predictable range, the exact way if there is no predictable relationship. The eggshell head rule is an exception to this rule. The fourth part from the contract law and tort law describes two aspects of foreseeability rule applicable considerations. Foreseeability rule is a question of value judgment and, where applicable, have a lot of flexibility. In contract law rules applicable foreseeability to limit the scope of damages, to take into account the personal circumstances of the parties, such as the identity of the party in breach and trading practices as well as trading occasions, which are to some extent affected the breaching party for the specific whether the results of the damage could have foreseen. In tort law, we have to consider if it is determined the defendant for damages can be expected to bear the liability, then the result on the entire industry and society and what impact, which involves excessive prevention and public policy issues. This section from a client's personal circumstances, trading practices and trading occasions over several aspects of prevention and public policy on the foreseeability rule applies to discuss the impact. The fifth part is the focus of this article. This section describes the foreseeability rule of law in our country apply. In contract law, the paper will absorb the civil law and common law rules relating to reasonable foreseeability factor, based on intent or gross negligence on the applicability of the foreseeable loss issues and how issues such as classification analysis. Because of contract law in general practice is the principle of liability without fault, which makes the defaulting party's subjective intent or negligence to determine the scope of compensation not have much impact on the foreseeability rule is not applicable due to intentional or negligent vary exception. Only in the case of willful default, the time should be foreseen when the breach of contract. In the classification for the loss, the absorption loss of Anglo-American law in general and specific loss provisions, and in particular whether the loss compensation for the identification of the draw to inform and consideration of the relevant provisions, which will help end the practice of various losses classification mixed situation. In tort law, China is now the dominant civil law tort liability constitutes four essential conditions, namely that the fault is a state of mind, in addition to the duty of care also did not like the common law, as in the judgment at fault clearly presented, So if there is no room for rules applicable foreseeability of it? I believe that the tort law in our country, in the judgment at fault, that is intentional and negligent judgment, whether foreseen also used the theory. Negligence that the perpetrator should have been foreseen and unforeseen, or already foreseen and gullible can be avoided. Only in our country does not explicitly raise the predictability of the rules applicable. In determining causality, although the country is used quite a causal relationship between civil law theory, but with a blend of two legal systems, with the common law rules of foreseeability has many similarities, the two are not completely opposing incompatible. This gives us learn in tort system foreseeability judge rules provide the possibility of causality. Finally, how the specific application, the author believes that the most important is to establish a reasonable person standard, the predictability of the rules of a more objective and also through a number of cases to establish some of the applicable model. Meanwhile, for the foreseeable plaintiff's theory can learn from.

Rules of foreseeability

Abstract

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