Remoteness and the limitation of contractual damages

[摘要] ENGLISH ABSTRACT : This study explores remoteness of contractual damages in South African law. Themanner in which South African contract law limits the extent of a plaintiff's recovery ofdamages caused by breach is controversial. Criticism has been expressed about, interalia, the distinction between general and special damages, the conventionrequirement imposed for the recovery of special damages, and the approach ofdetermining remoteness at the time of contracting and not of breach. It is expectedthat the current approach will be revised when the opportunity arises. In light of thedebate around the current South African approach, and the need for its development,this study provides a detailed overview of the premise, purpose and operation of rulesof remoteness.The study commences with a historical overview of the early civil and common lawapproaches to remoteness and their subsequent development in France, Germanyand England. Against that background, the development of the South Africanapproach is discussed and the various sources relied upon by South African courtsplaced in context.The study then considers three different theories of remoteness: the directconsequences theory, the adequate cause theory, and the foreseeability theory. Thedirect consequences theory is discussed in the context of English law. The discussionhighlights the necessity for the remoteness inquiry to take account of the facts of aparticular case. The adequate cause theory, in turn, is explored in the context ofGerman law. The theory's development into a discretionary, policy-based approach toremoteness is discussed with reference to the adoption of the Schutzzwecklehre.The foreseeability theory is explored in two contexts: its application in English law andunder the model instruments. The overview of English law shows that a distinctionbetween general and special damages is often unhelpful and even detrimental to theremoteness inquiry. The recent move in English law toward an agreement-centredapproach to remoteness is also evaluated with reference to the South Africanconvention principle. Finally, foreseeability as applied in the model instruments isevaluated. It is concluded that the flexible approach to the foreseeability theory seen in the model instruments addresses many of the identified limitations of traditionalforeseeability tests.The study suggests that the remoteness inquiry should focus on a discovery of whatparties could reasonably have taken into account when contracting. For this reason, itis recommended that remoteness be determined with reference to the time of contractconclusion; and that it should not depend upon the parties' intentions or agreementabout liability for damages. Additionally, the study finds that the foreseeability inquirycannot draw a rigid distinction between the nature and extent of a loss. Ultimately, itis suggested that a flexible approach to foreseeability would resolve many of thelimitations of the current South African approach. Such an approach would align theremoteness inquiry to notions of fairness and economic efficiency, as well as theconstitutional value of human dignity.

[发布机构] Stellenbosch University