영미의 손해배상제도에 관한 비교연구

A Comparative Study on the Damages System of U.K. and U.S.

The fountainhead of the limitation of foreseeability is the famous English case of Hadley v. Baxendale, which in 1854 laid down general principles that are honored today. For a time seemed that courts, both America and in England, might transform the contemplation test into an even stricter limitation. Some courts suggested that one was not liable for consequential damages unless, when one made the contract. one had made a tacit agreement to assume the risk of that liability. More notice to a party of circumstances making the loss foreseeable would not then be enough. The tacit agreement test has been generally rejected as overly restrictive and doctrinally unsound, and it is explicitly condemned in the comments to the Uniform Commercial Code. The modern trend is, on the contrary, toward narrowing the limitation imposed by Hadley v. Baxendale by phrasing the test in terms of foreseeability. But in American legal system such specific relief is the exception rather than the rule. Usually a court grants the promise substitutional relief by awarding a sum of money untended to compensate for the harm to the promisee’s interests caused by the promisor’s failure to perform the promise. It is common to discuss the measure of this liability of the promisor in terms of the promisee’s exception, reliance, and restitution interests. This study aims to analyze the key differences on damages system of U.K. and U.S. in the International commercial transaction.