The Next Generation of Tort Action for Get Refusal in Order to Acheive the Get and Calabresi & Melamed's Liability Rule (Hebrew)
Hebrew University of Jerusalem Law Review (Mishpatim), Vol. 41, pp. 153-254, 2011
102 Pages Posted: 14 Mar 2011 Last revised: 29 Dec 2014
Date Written: March 13, 2011
Intrafamilial tort actions have become increasingly common in Israel. Children sue their parents, and spouses and ex-spouses sue each other.These legal actions create fascinating intersections between tort law, which traditionally deals with relationships between strangers, and family law that, naturally, deals with intrafamilial relations. In some of those actions, there is no intersection between tort law and family law and tort law applies exclusively in the family sphere, as seen in actions for defamation, domestic violence, etc. The most interesting actions, however, feature intersections between the two systems of law. This is particularly relevant in the reality of the Israeli law, where marital law is based on religious - Jewish law and the relevant court is the rabbinical court, whereas tort actions are filed with secular family courts and are dealt with according to the civil law. Acknowledging these actions is controversial at times, particularly in tort actions of women against their recalcitrant husbands who refuse to grant them a get (the Jewish divorce bill) as some argue that secular courts actually circumvent rabbinical courts and intervene in divorce cases, directly or indirectly influencing the acceptance of the get and its validity.
The article presents the overall scheme of intrafamilial tort actions in Israel between members of dysfunctional families as seen in the central case study - tort actions for the refusal to grant the get. These actions are primarily analyzed using the presently-famous Calabresi and Melamed 1972 paper, which presents, inter alia, options of damage entitlement via primary remedy or via secondary remedy. The framework presented by Calabresi and Melamed, especially via one of the rules they present - liability rule in favor of the plaintiff/injured" - will assist not only in presenting the relations between the systems (tort law and family law) and the remedies they offer; but also in establishing a theoretical tort foundation for future developments in cases of real conflicts between laws and courts in tort actions filed against both recalcitrant husbands and recalcitrant wives (who refuse to accept the get). Primarily I examine the possibility of awarding damages for get refusal in cases where rabbinical courts failed to rule and did not order husbands to grant a get, thus allegedly allowing secular courts to award damages in what could be viewed as some kind of a secular get.
Among other things, the article examines the following issues: Are rights connected to personal status tradable or alienable? Can the family court play an active and legitimate role in creating some kind of transaction under state auspices in which one family member harms the personal status rights of another? Does the state allow placing a price tag on harmed personal status by providing a monetary remedy for an infringement of entitlement through tort law?
Note: Downloadable document is in Hebrew.
Keywords: tort, family, get, intrafamilial tort actions, the goals of tort law
JEL Classification: Z00
Suggested Citation: Suggested Citation