Globalization of the Law of Specific Performance in Contracts: Israel As a Case Study

12(1) Journal of Comparative Law (2017)

Hebrew University of Jerusalem Legal Research Paper No. 17-43

30 Pages Posted: 14 Aug 2017 Last revised: 31 Oct 2017

See all articles by Leon Yehuda Anidjar

Leon Yehuda Anidjar

Vanderbilt University - Vanderbilt Law School; Stanford-Vienna Transatlantic Technology Law Forum; European Banking Institute

Date Written: August 10, 2017

Abstract

This article discusses the regulation of specific performance in the law of contract around the world, focusing on Israeli law. The relevant law of continental European and Anglo-American jurisdictions in general and the application thereof to contracts in particular are separate and distinct. It is generally believed that Anglo-American and continental legal systems have different points of departure in respect to specific performance. In Anglo-American legal systems specific performance is an equitable remedy only awarded when the remedy of damages is inappropriate. Continental legal systems have established specific performance as the preferred remedy to be awarded for breach of contract.

Israel has adopted the continental position with respect to the priority accorded to specific performance in comparison with other remedies for breach of contract. At the same time, Israeli law has created various exclusions or exceptions from the right to specific performance that are inspired by continental and Anglo-American legal principles. Notwithstanding that specific performance in Israeli legislation has drawn upon these two legal traditions, in practice Israeli courts interpret these laws in light of Anglo-American experience exclusively, disregarding that of continental legal systems.

The article is structured as follows. We begin by noting that with respect to anything related to contractual enforcement, in recent years there has been significant consolidation in both legal systems expressed in the fact that specific performance is frequently awarded in continental European and in Anglo-American cases. Although Anglo-American courts in the past were reluctant to award this remedy, nowadays specific performance is awarded for various types of contracts, including contracts for the sale of chattel and contracts for the sale of land. This unification of outcome is another expression of the general trend noted in doctrinal writings: the convergence of continental legal systems with Anglo-American legal systems.

We then turn to a comparative analysis of contractual enforcement in Israeli law. The courts in Israel have adopted an Anglo-American interpretation of Israeli legal provisions regulating the exceptions from enforcement of a contract without having regard to the position of continental legal systems on this issue. A number of explanations shed light on why those who shape Israeli case law have relied exclusively on the Anglo-American tradition when they interpret the legal provisions pertaining to the exceptions from contractual enforcement. They do so even though the legislature which drafted these provisions drew inspiration from continental legal systems. Cultural explanations are offered as to the identity of the shapers of Israeli law; sociological explanations of changes within Israeli society that contributed to the adoption of legal norms from Anglo-American law.

Suggested Citation

Anidjar, Leon Yehuda, Globalization of the Law of Specific Performance in Contracts: Israel As a Case Study (August 10, 2017). 12(1) Journal of Comparative Law (2017), Hebrew University of Jerusalem Legal Research Paper No. 17-43, Available at SSRN: https://ssrn.com/abstract=3016338

Leon Yehuda Anidjar (Contact Author)

Vanderbilt University - Vanderbilt Law School ( email )

131 21st Avenue South
Nashville, TN 37203
United States

Stanford-Vienna Transatlantic Technology Law Forum ( email )

United States

European Banking Institute ( email )

Frankfurt
Germany

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