Martin Sztefek

Foreseeability of Damage in the New Civil Code

Jurisprudence 5/2014 Section: Articles Page: 25-33

Keywords: foreseeability of damage, new Civil Code, tort liability, fault, causal link

Abstract: Although it has been asserted that the wrongdoer is liable only for damage that he could have foreseen at the time he acted, the new Civil Code does not contain any provision which would explicitly enshrine this principle. The purpose of this article is, therefore, to prove that the concept of foreseeability is applicable even under the new Civil Code in both tort and contract liability regimes. Moreover, I analyse the principle of foreseeability of damage in relation to other concepts such as the duty of prevention, force majeure, fault and causal link. I further discuss the issue whether the criterion of foreseeability is to be assessed from an objective or a subjective point of view. I argue that in the case of contract liability, foreseeability takes an objective form and, therefore, is stricter than in the case of tort liability, where it is possible to take into account the particular (subjective) qualities of the wrongdoer.