Intrafamilial Tort Actions - Litigation or Immunity? (Hebrew)

Mechqarei Mishpat - Legal Studies: Bar-Ilan Law Review, Vol. 27, pp. 139-205, 2011

68 Pages Posted: 14 Mar 2011 Last revised: 29 Dec 2014

See all articles by Benjamin Shmueli

Benjamin Shmueli

Bar-Ilan University - Faculty of Law

Date Written: March 13, 2011

Abstract

Recently, there is a growing trend of filing intrafamilial tort actions, especially against spouses. In the past, and, to a certain extent, even at present, immunities existed in common law against tort litigation within the family. Is it appropriate today to block such claims, or should they be considered in the same way as any other tort suit? The present essay will address this question, by examining the possibility of establishing a delicate balance between an individualistic approach, which focuses on realizing the autonomy of the individual to sue for harm done to him, and a family-collectivist approach, which attempts to determine what is best for the family as a whole, and is concerned that legal intervention in its affairs may be more detrimental than beneficial.

The essay presents the current situation in a critical look. The assumption is that although this claim may be consistent with the goals of tort law, one cannot ignore the fact that this is not a suit involving two strangers. In addition, one cannot ignore the aim of the establishment of family courts - in which these claims are being filed - that is dispute resolution in ways of peace. Moreover, since these are particularly charged, emotional claims, the real remedy desired may at times not be financial compensation at all, but some other remedy, an emotional one, which the law cannot provide, but which might be provided specifically through extrajudicial proceedings. But requiring the parties to take part in such a proceeding under the auspices of the court (e.g. mandatory mediation) is itself problematic, since these are essentially voluntary proceedings.

I will propose a desirable model that balances the two approaches, the individualistic and the family. This model will present a theoretical and practical framework for hearing such claims, applicable to the different stages of tort proceedings in the courts (and in pre-trial stage also), while also making use, in the framework of such proceedings, of quasi-mandatory extrajudicial processes. Part of the suggested solution will influence the criminal discussion on intrafamilial offenses.

Note: Downloadable document is in Hebrew.

Keywords: intrafamilial tort litigation, tort, the goals of tort law, family

JEL Classification: Z00

Suggested Citation

Shmueli, Benjamin, Intrafamilial Tort Actions - Litigation or Immunity? (Hebrew) (March 13, 2011). Mechqarei Mishpat - Legal Studies: Bar-Ilan Law Review, Vol. 27, pp. 139-205, 2011 , Available at SSRN: https://ssrn.com/abstract=1784993

Benjamin Shmueli (Contact Author)

Bar-Ilan University - Faculty of Law ( email )

Faculty of Law
Ramat Gan, 5290002
Israel

HOME PAGE: http://www.law.biu.ac.il/en/node/455#tabs-tabset-5

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