Of the Honey and the Sting - Reflections on Remedies and the Draft Civil Code
IDC Law Review, pp. 357-409, 2006
Posted: 8 Dec 2008 Last revised: 28 Dec 2008
Date Written: 2006
The section named "Remedies for Breach of an Obligation" in the official draft of the new Israeli Civil Code represents a bold attempt to unify the various laws concerning civil remedies into a unified and coherent "Law of Remedies". This section is intended to apply to violations of civil obligations generally, including torts and breaches of contract. The article provides a theoretical perspective on the law of remedies through which the author offers a critical analysis of the remedies section in the Code. The author raises several basic questions which are not clearly addressed by the present version of the remedies section and the official commentary accompanying it, and outlines a number of issues that deserve clarification or reform, preferably before the Code comes into force.
The article first proposes a basic theoretical distinction between two different types of remedies, which the author believes to be essential to any attempt to create a coherent law of remedies. It then examines the scope of application of the new section, especially with regards to obligations other than contract and tort, as well as obligations between private individuals and public authorities. The next part deals with the question of whether the remedies section includes a sufficiently diverse set of civil remedies. The inquiry is carried out in light of a proposed theoretical model for the construction of a comprehensive system of remedies. The final part presents the main criticism of the remedies' section in the Draft Code. The author claims that the present form of the Draft does not provide sufficient guidelines for the resolution of basic remedial issues such as the choice between available remedies, as well as the appropriate extent or form of any specific remedy to be awarded in any specific given case. Designing and formulating these guidelines is the main challenge facing the law of remedies today.
Keywords: Civil Remdies, Obligations, Tort, Contract
Suggested Citation: Suggested Citation