Foreseeability

Foreseeability — «способность предвидеть» — is the ability to reasonably anticipate the results that can ensue from an act or omission. In tort law foreseeability limits liability to consequences that can reasonably be foreseen (the proximate cause). Otherwise, liability could be unlimited in scope, as causes never truly cease having effects far removed in time and space.

Yet, in Russian delict law foreseeability, arguably, does not play a noticeable role. Although Russian lawyers are familiar with the cause-in-fact and the proximate cause theories of civil liability for harm, the concept of foreseeability does not seem to occupy their minds very much. The murky subject of what foreseeability is, where it begins and where it ends, has not even been touched by Russian scholars and legal practitioners.

As the Russian law stands, the plaintiff must prove the causal link between the defendant’s acts or omissions and the harm. The defendant, on the other hand, can avoid liability if he/she proves that he/she acted lawfully or that the harm was caused not by his/her fault (article 1064 of the Civil Code). The law is mute on the matter of restricting liability depending on how far remote the cause is and, in theory, the butterfly effect is possible. In practice judges consider only the nearest causes. If, however, the harm has been caused by several persons, the court would either find them jointly liable (and determine the share of liability for each party) or put all the weight on one party leaving it with the right to claim compensation from the other parties (the right of subrogation).

In contract law, a party can be liable for consequential damages if those damages were foreseeable at the time of making the contract. In Russia, a breaching party must pay consequential damages even if it couldn’t anticipate the