oa Fundamina : A Journal of Legal History - Prévisibilité du dommage et damnum extra rem
The European Parliament has just approved a new set of optional rules for distance contracts of sale. Article 161 of the Common European Sales Law provides for a limitation of damages in respect of reasonably foreseeable losses suffered by the debtor. Pothier spoke of the notion of foreseeability of recoverable damages, which was based on Roman-law texts dealing with interesse circa ipsam rem, and developed in the Middle Ages when the important distinction between interest circa ipsam rem and interest extra rem was drawn. He brought together the idea of contract as an exchange of promises and the limitation of damages based on the object of the promise itself. Correctly excluding such limitation where losses were caused deliberately, he laid the foundation for the codification of natural law in this respect. However, the Pandectists' codifications discarded the foreseeability argument in favour of the concept of adequate causal link. Despite a more pandectistic concept of contract, modern principles have reverted to the foreseeability argument. Moreover, in Article 161 CESL the reason for excluding from the foreseeability limitation losses caused deliberately seems to have been forgotten. This contribution attempts to trace this historical evolution in order to provide a better understanding of the current position.
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