Codification, Coherence, and Proprietary Competition

Abstract:     
The codification of private law is a heroic enterprise. A codification process can facilitate the reexamination and the refinement of our existing rules and further contribute to their coherent coexistence. We should, however, take codifiers' attempts to improve the coherence of private law with a grain of salt, remembering that in most cases the only defensible coherentist moves are normative (rather than doctrinal) and local (rather than global). This important lesson requires rethinking two unfortunate suggestions of the proposed Israeli civil code: unifying the remedial principles of contract law and tort law and creating a super-category of property covering assets of all stripes.

By contrast, the proposed consolidation in one chapter of the law of proprietary competitions is a laudable suggestion. The rules regulating this amalgam of cases need to face similar normative questions and thus justify a unified treatment. Yet, even in this context important factual differences between the different types of competitions entail significant contextual refinements that an overly broad treatment obscures. An improved version of the proposed Israeli civil code should clearly address these subtleties, which the existing common law already reflects.

Number of Pages in PDF File: 29

working papers series