The Law of Remedies in a Mixed Jurisdiction: The Israeli Experience

Abstract

Remedies for Breach of an Obligation - this is the title of the section on remedies in the Israeli Draft Civil Code. Its objective is to create a unified and comprehensive statutory scheme for awarding remedies in all branches of private law (civil and commercial).

This development is no doubt of significant interest to the Israeli lawyer. However, for a number of reasons, acquaintance with this law reform should be of value to legal comparatists in many other jurisdictions. First, from a comparative perspective the present state of the law of remedies in Israel, as well as the forthcoming reform of this area represent a fascinating example of the complex way in which both the Common law and the Civil law traditions have shaped in the past - and continue to shape today - the development of private law in 'mixed jurisdictions' such as Israel. In this respect, an acquaintance with the special characteristics of the Israeli law of remedies - and with the current attempts to codify and harmonize it - may be illuminating to the legal comparatist, in mixed and 'non-mixed' jurisdictions alike.

Second, we believe that the specific reform of the law of remedies in Israel may inspire lawmakers, judges and legal scholars in other legal systems. To the best of our knowledge, it represents the most ambitious legislative attempt to codify and harmonize the remedial rules of civil law. In so doing, the Israeli law reform, so we shall argue, illustrates the manner in which original legislative efforts may serve to simplify the law and free it from the burden of formal distinctions and divisions that undermine our ability to understand the law and operate it in a straightforward manner that will guarantee the realization of its basic values and objectives.

Keywords: remedies, comparative law

JEL Classification: K12, K13