Why Unify Contract and Tort Remedies? A Reply to Professor Dagan
Mishpatim - Hebrew University Law Review, pp. 357-412, 2006
Posted: 8 Dec 2008 Last revised: 28 Dec 2008
Date Written: November 1, 2005
The remedies section in the Israeli draft civil code attempts to create a unified law of remedies for the breach of any civil obligation, including originating in tort law and contract law. In his article, "The Risks of Codification: On Over-Coherence and Multiplicity of Remedies", Professor Dagan forcefully criticizes this attempt. The present article demonstrates that the two main criticisms raised by Dagan - against the unification of remedies and against the attempt to fortify the remedial response to breach of civil obligations - are unconvincing, from both a theoretical and a pragmatic point of view.
The article commences with a summary of Dagan's critique. The second part examines Dagan's main argument against the unification of tort and contract remedies. Dagan claims that unifying the law of tort and contract remedies is problematic as it may obscure important normative differences between tort and contract law, thus representing an undesirable "over-unification". Contrary to Dagan, this article claims that neither the alleged distinction between the goals of the two branches nor the distinction concerning the separate interests protected within each of them, justifies the adoption of a separate set of remedial responses for torts and breaches of contract. The fundamental goal of both contract and tort law is the same: to create and maintain an appropriate equilibrium between the welfare and freedom of individuals in society. In the realm of remedies this goal is realized through the basic principle of restitutio in integrum, which requires the rectification of civil wrongs. In addition, as of today, a substantial overlap exists between the interests protected by the two branches. More importantly, as the article demonstrates, the type of interest protected is - and should be - only one of the relevant considerations for electing and shaping remedial responses. The third part of the article discusses Dagan's claim that the code's intention to add to the existing scheme of remedies new and more aggressive general remedies (such as coerced performance and punitive damages) is also misguided and problematic. Dagan bases most of his criticism on a few insights of American legal realism. While accepting the value of those insights, this article claims that they do not support - and in fact contradict - Dagan's objections to the draft's adoption of a general and more aggressive scheme of general remedies. Accompanied by appropriate statutory guidelines clarifying the special goals and main principles relevant to the administration of the various remedies, the remedies section of the proposed civil code may provide a solid infrastructure for a modern, effective and balanced law of remedies.
Keywords: Civil Remdies, Tort, Contract, Unification
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