Are Damages Essentially about Foreseeability or the Scope of an Assumption of Responsibility?
In Hadley v Baxendale, Baron Alderson did not need to consider whether mere foreseeability of a loss was sufficient for promisor responsibility, as the loss in that case was held not to be foreseeable. Soon after the decision, however, John Mayne raised just this issue: But it may be asked with great deference, whether the mere fact of such consequences being communicated to the other party will be sufficient, without going on to show that he was told that he would be held answerable for them, and consented to undertake such a liability? [71] Maynes view is on the same lines as the view put forward here, namely that contractual obligations are oriented towards various purposes and consequences of breach on the basis of apparently intended assumption of risk. The rival view is that remoteness is merely a test of knowledge-informed foreseeability, and that liability does not depend upon express or even implied assent to the foreseen risk. The assumption of risk view was at its height in
