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Tilburg University the Law of Damages in Chinese Contract Law Niu, Zihan

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Tilburg University the Law of Damages in Chinese Contract Law Niu, Zihan Tilburg University The law of damages in Chinese contract law Niu, Zihan Publication date: 2015 Document Version Publisher's PDF, also known as Version of record Link to publication in Tilburg University Research Portal Citation for published version (APA): Niu, Z. (2015). The law of damages in Chinese contract law: A comparative study of damages calculation in Chinese law, English law and the CISG, with empirical results from Chinese practice. [s.n.]. 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Download date: 01. okt. 2021 The Law of Damages in Chinese Contract Law ------- A Comparative Study of Damages Calculation in Chinese Law, English Law and the CISG, with Empirical Results from Chinese Practice Proefschrift ter verkrijging van de graad van doctor aan Tilburg University op gezag van de rector magnificus, prof.dr. E.H.L. Aarts, in het openbaar te verdedigen ten overstaan van een door het college voor promoties aangewezen commissie in de aula van de Universiteit op vrijdag 4 september 2015 om 10.15 uur door Zihan Niu, geboren op 9 december 1984 te Hebei, China Promotores: Prof.mr.ir. T.F.E. Tjong Tjin Tai Prof.dr. V. Mak Overige leden van de Promotiecommissie: Prof.dr. M.A. Loth Prof.dr. A.L.M. Keirse, Prof.dr. L.B. Ling, Prof.dr. U.G. Schroeter Prof.dr. J.M. Smits Acknowledgement The past four years to me is a journey of knowledge exploration and self-understanding. It is a journey of challenge. It is a journey that has changed my mind and reshaped my life. This journey could not have happened without the generous support of my committee, colleagues, family and friends. I would like to express my deepest gratitude to all of you. First and foremost, I am greatly indebted to my supervisors, Professor Eric Tjong Tjin Tai and Professor Vanessa Mak. Eric, you are a great supervisor, an intelligent researcher and one of the smartest person I know. You have been involved in the journey from the very beginning. You gave me the ticket for the wonderful journey in Tilburg Law School. During the four years, you always give me comments and advice on all the chapters of my dissertation. These insightful comments helped me to improve my texts significantly and to understand my own work much better. Vanessa, with your valuable encouragement, I enjoyed complete freedom to exploring my inter- ests, and received opportunities to attend many conferences and workshops, and to give lectures. These experiences helped me to build up my identity as a researcher. You also enthusiastically sup- ported my work, and provided insightful comments to my entire dissertation which helps me to struc- ture my texts in a more logical way. In addition to academic affairs, you also were willing to share your life experiences with me which comforted me when I was apart from my boyfriend. I also thank the members of my PhD committee, Professor Jan Smits (Maastricht University), Professor Anne Keirse (Utrecht University), Professor Bin Ling (Beijing University), Professor Ulrich G. Schroeter (Universität Mannheim), and Professor Marco Loth (Tilburg University) for their helpful comments and suggestion in general. Many thanks go to all my colleagues at Tilburg. I sincerely thank Christel, Jurgen, Robert and Cecile for providing comments and advice on my work, Sanne, Merel, Nadine, Guanbin, Muping, Jian and Han for helping me to pre-test my vignette study. Special thanks go to my officemate Anne. Thank you for the numerous interesting conversations and fun moments we had. You make my stress- ful final year more colorful. My thanks also go to Esther, who, as a senior PhD student and a sincere friend is always willing to share experiences with me and provide very helpful advice to me. My greatest debt is to Dr. Gijs van Dijck, for your great guide, extremely generous support, an enormous help! You lead me into the world of empirical legal research. Without you, I would never find out my real interests of research. I received great support from you in exploring empirical re- search and statistical techniques. You also provided opportunities for me to present my work and to attend training. These knowledge and experiences enormously boosted my confidence in my research ability. Without your help, it would be much more difficult for me to finish this work. You are the most ambitious researcher and the kindest teacher I have ever met. You are the light of my journey. I hope that I can become someone like you in the future. For me, it is never possible to over-state my gratitude to you. I would like to thank all my friends, especially my housemates Yuanyuan and Lulu, in particular Qian, for their friendship. I thank my parents, Runzhen Niu and Huifen Cao, for their support and encouragement. Especial- ly, I sincerely thank my mother Huifen Cao for helping me to transcribe some of the recorded inter- views. Her diligent work helped me to speed up the process of data analysis. My deepest thanks go to my boyfriend Huaxiang, for his accompany, understanding and support. We both learned a lot from each other. Having him by my side, my journey has been more fantastic. Special thanks go to the 43 judges who consented to participate in my study. Without their invalu- able information, this work would never be done. Contents 1. Introduction ...................................................................................................................................... 1 1.1. Research Background ............................................................................................................... 1 1.2. Research Questions and Research Methods ............................................................................. 7 1.3. Structure of the Dissertation ................................................................................................... 11 2. The Law of Damages under English Contract Law ....................................................................... 14 2.1. Introduction ............................................................................................................................ 14 2.2. The Definition of Damages under English Contract Law ...................................................... 16 2.3. Assessment of Damages ......................................................................................................... 17 2.3.1. The Normative Aim of Damages Assessment ................................................................ 17 2.3.2. The Date for Assessment ................................................................................................ 21 2.3.3. The Method of Assessment ............................................................................................ 26 2.3.3.1. Abstract Method for Assessing Normal Loss ......................................................... 26 2.3.3.2. Concrete Method of Assessing ‘Consequential loss’ .............................................. 29 2.3.3.3. Recovery for Expenses rendered Futile by the Breach: An Alternative Measure .. 32 2.3.3.4. Loss of Chance ........................................................................................................ 35 2.3.3.5. Assessment of Non-pecuniary Damages ................................................................. 37 2.3.3.6. Gain-based Damages .............................................................................................. 38 2.4. Restriction of Damages ......................................................................................................... 42 2.4.1. Remoteness ..................................................................................................................... 42 2.4.1.1. From ‘Reasonable Foreseeability’ to ‘Not Unlikely’.............................................. 43 2.4.1.2. Actual and Imputed Knowledge ............................................................................. 48 2.4.1.3. Risk Management Approach of Remoteness Restriction ........................................ 51 2.4.1.4. Conclusion .............................................................................................................. 55 2.4.2. Causation ........................................................................................................................ 56 2.4.2.1. General .................................................................................................................... 56 1 2.4.2.2. Intervening Conduct of a Third party ..................................................................... 57 2.4.2.3. Intervening External Factor .................................................................................... 59 2.4.2.4. Intervening Conducts of the Claimant .................................................................... 60 2.4.2.5. Conclusion .............................................................................................................
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