영미 불법행위법상의 예견가능성 법리

Abstract

Liability for consequential losses is not to be entirely open-ended, and some

means to limit such liability is found in every system of law. There are a number

of possible means, and the courts and the academia in the U.K. and the U.S. have

experimented with several of them, in contract and tort, respectively. In the law of

tort, the courts in the U.K. and the U.S. once focused on the concept of causation,

and, on other occasions, regarded the matter as turning on the content of the duty

itself. Eventually, a test of foreseeability was adopted and applied to solve the

problem of over-extended liability for consequential losses. In the law of contract, a

foreseeability test to limit liability for damages was notably established in Hadley

v. Baxendale, in 1854. The Hadley rule is deemed to have affected the concept of

foreseeability as a damages-limiting principle in the Japanese civil law, and also

that of the Korean counterpart through the Japanese civil code. From a comparative

law perspective, considering especially the respective provisions pertaining to the

liability for consequential losses in contract and in tort in the Korean civil code, it

is thus worth analyzing the doctrine of foreseeability in Anglo-American law

established under Hadley v. Baxendale as applicable in contractual liability and

possibly and arguably in tort liability.

The Hadley rule was established as and has widely been regarded as part of

contract law, and under the current orthodox Anglo-American law, it is generally

stated that a more generous rule of remoteness applies in tort than the

foreseeability rule in contract. At the same time, however, a respectable line of

authority both inside and outside the court in the U.K. and the U.S. has continued

to reason that all consequential claims should be subject to a single remoteness

rule, whatever their basis, or that the rule with regard to remoteness of damage is

precisely the same whether the damages are claimed in actions of contract or of...