Abstract
Regulation of the content of standard-form contracts usually focuses on the invisible terms that customers hardly ever read. It does not refer to the price, because price is a salient component of the transaction, to which customers usually pay attention and sometimes even compare between suppliers. However, it is often difficult to draw the line between the price and price-related, invisible terms.
This chapter analyzes the Israeli experience concerning the regulation of prices and price-related terms. The Israeli experience is interesting for several reasons. These include the fact that in 1964, Israel was the first country to enact a specific Law regulating the content of standard-form contracts, which established both a framework for ex post judicial supervision and a mechanism for ex ante, administrative/quasi-judicial supervision; the various reforms made in these mechanisms throughout the years, including the de facto abolition of the administrative/quasi-judicial mechanism in 2014; and the activist policy adopted by the Israeli Banking Supervisor. While Israeli law—much like other systems—has long imposed strict disclosure duties on banks, insurers, and other suppliers, unlike some other systems, it has always regulated the content of contracts, as well. This regulation was vital during the 2008 subprime crisis, in which Israel suffered little, and recovered.
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Notes
- 1.
- 2.
- 3.
Deutch (1993).
- 4.
The question as to whether or not Israel does indeed have a constitution remained controversial for many years (and, to a certain extent, still is). Since the establishment of the State, the Israeli parliament has enacted a series of “Basic Laws” that address most of the institutional and human rights issues that are ordinarily governed by a constitution. Only in the 1990s, however, with the enactment of the Basic Law: Human Dignity and Liberty (1992), and the Basic Law: Freedom of Occupation (1992, replaced with a new Basic Law in 1994), and the ruling of the Israeli Supreme Court in United Mizrachi Bank v. Midgal Coop., 49(4) PD 221 (1995), did it become clear that Basic Laws constitute supra-statutory constitutional norms. See Navot (2007), pp. 40–48.
- 5.
Hevra Kadisha Ghasha “Kehilat Yerushalayim” v. Kastenbaum, 46(2) PD 464, 533 (1992). See also Barak (1996).
- 6.
Section 8 of the Basic Law: Human Dignity and Liberty.
- 7.
See, e.g., Beit Yules Ltd. v. Raviv Moshe & Co. Ltd., 43(1) PD 441 (1989).
- 8.
Hevra Kadisha v. Kastenbaum (1992), p. 533.
- 9.
Sections 12 and 39 of the Contracts (General Part) Law, 1973 impose duties to negotiate contracts, fulfill contractual obligations, and exercise contractual rights “in customary manner and in good faith.” Section 61(b) of this Law extends the application of these norms mutatis mutandis to legal acts other than contracts, and to obligations not arising out of a contract. On the central role of the principle of good faith in Israeli private law, see Shalev (2005), pp. 85–127; Rabello (1996).
- 10.
For example, to the best of our knowledge, Israel is the only legal system in which mandatory statutory cooling-off periods apply not only to door-to-door sales and telemarketing transactions, but to practically all consumer transactions, with specific exceptions. See sections 14–14H of the Consumer Protection Law, 1981; Consumer Protection (Annulment of Transaction) Regulations, 2010. While the statutory cooling-off period generally lasts up to 2 weeks, in the cases of telemarketing and door-to-door sales, the period is 4 months (!) if the consumer is a disabled person, a new immigrant, or a senior citizen.
- 11.
- 12.
Sections 9–10 of the Standard Contracts Law, 1964; Hondius (1978), p. 530; Deutch (1985), p. 473. While the Board’s discussions resembled court proceedings, the ensuing res judicata applied to all of the supplier’s contracts “in accordance with” the one placed before the Board. See Hecht (1968), p. 592.
- 13.
- 14.
Deutch (1980), p. 69.
- 15.
- 16.
See, e.g., Rot v. Yasupa, 33(1) PD 617 (1979); Deutch (1980), pp. 86–102.
- 17.
For an overview, see Deutch (1986).
- 18.
Hondius (1978), p. 540.
- 19.
- 20.
Broadly speaking, these presumptions cover clauses that compromise customers’ default legal rights, obstruct their access to justice, exempt suppliers from liability, or allow suppliers to alter the contract unilaterally. Specific presumptions include removal or unreasonable diluting of suppliers’ statutory liabilities (section 4(1)), shifting the burden of proof to the customer (section 4(7)), and clauses wherein customers confirm any fact or acknowledge having read and understood the contract (section 4(12), as added in 2014).
- 21.
Prior to the 2014 amendment, the so-called black list included only the denial of customers’ right to apply for judicial relief. The amendment added conditions exempting the supplier from liability for bodily injury and malicious acts.
- 22.
For example, the Ministry of Housing required construction firms to get the Tribunal’s approval for their apartment sales contracts as a precondition to participating in the Ministry’s housing projects.
- 23.
See, e.g., Attorney General v. Gad Construction Co. Ltd., 43(1) P.D. 183 (1989).
- 24.
Messika (2001), pp. 105–109.
- 25.
Under the SCL, the Tribunal was required to publish its decisions to annul or change unduly disadvantageous conditions in two daily newspapers, or in another manner prescribed in regulations, and had discretion over the publication of other decisions. In reality, however, the Tribunal failed to comply with the Law; see Messika (2001), pp. 118–120. The 2014 amendment extended the publication duty to approved contracts, and required that publication be in the same manner as district court judgments are published—but because the Tribunal has largely ceased to function, this provision is meaningless. Currently, some of the Tribunal’s decisions are available through the Ministry of Justice’s website. Decisions from the past two decades, and some older ones, are available through commercial online databases, as well.
- 26.
For example, in the Gad case: Attorney General v. Gad Construction Co. Ltd., 43(1) P.D. 183 (1989), the Supreme Court, on appeal from the Tribunal, accepted the AG’s position that exemption clauses in apartment sales contracts—which drastically deviated from the recommendations of an expert committee regarding minimal liability for construction defects—were unduly disadvantageous and hence void. However, the Court opined that imposing these recommendations on the construction industry should be done through legislation, rather than through the Tribunal’s power to change clauses. In response, the Knesset (Israeli Parliament) amended the Sales (Housing) Law, which initially focused on disclosure duties, and statutorily adopted the expert committee’s recommendations. See Zamir (1993), pp. 203–204.
- 27.
Deutch (1990), pp. 193–194. Even respectable institutions, such as credit-card companies, simply waited until the 5-year immunity period had elapsed to change their standard contracts. The AG did not challenge these “new” contracts. See Bachar (2007), p. 351, n. 113. In fact, even the State, which drastically reformed its standard contract for construction works following adjudication before the Tribunal, subsequently made changes in the contract, to the detriment of the construction firms.
- 28.
- 29.
Section 17(c) of the SCL. See Gelbard and Adar (2013), pp. 170–171.
- 30.
Bill of Amendment No. 4 of the Standard Contracts Law, 2010, HH (Gov.) No. 547 pp. 294, 296–297.
- 31.
- 32.
Bank Leumi LeIsrael Ltd. v. Attorney General (available at Nevo, a commercial legal database, February 18, 2010).
- 33.
See Engel et al. (2017).
- 34.
The definition refers to the “text of a contract” rather than a contract, because the Law applies both to actual contracts and to texts prepared for future use, which suppliers might approve in advance. Following a series of controversial interpretations of the “commodity or service” element of the definition of standard contract in the 1964 Law, the 1982 Law omitted this phrase altogether, thus applying to any standard-form contract, regardless of its object. Furthermore, the 1982 Law clarifies that “supplier” in this context is the party who drafts the contract—whether it is the seller or the buyer of any goods or services (see also n. 41–43 and accompanying text).
- 35.
- 36.
- 37.
Marotta-Wurgler (2008).
- 38.
Lusthaus and Spanic (1994), p. 35.
- 39.
Ministry of Justice, The Standard Contracts Law, 5743–1982: Explanatory Notes, p. 76 (1984). This consideration, based on section 14 of the SCL, was valid until 2014, when the possibility of pre-approval by the Tribunal was abolished.
- 40.
Bin-Nun (1987), p. 111.
- 41.
Israel Nursing Home Assoc. v. State of Israel (available at Nevo, October 11, 2009).
- 42.
Israel Football Players’ Organization v. Israel Football Assoc. (available at Nevo, November 11, 1988).
- 43.
- 44.
See, e.g., Atamer (2017).
- 45.
Shalev (1995), p. 627.
- 46.
Israel Nursing Home Assoc. v. State of Israel (available at Nevo, October 11, 2009), para 25; Association of Residents of Retirement Communities v. Achuzat Bait—Commercial Center and Elderly Residence, para 13 (available at Nevo, May 28, 2013); Bar-Gill (2012), pp. 7–27; Zamir and Teichman (2018), pp. 297–299; Atamer (2017).
- 47.
For a critical review of this provision in light of previous Tribunal rulings on such clauses, see Becher and Gelbard (2013a).
- 48.
Attorney General v. Beit Yehonatan Co. Ltd. (June 5, 1988) (unpublished); see Lusthaus and Spanic (1994), pp. 36 and 325–326.
- 49.
See, e.g., Attorney General v. Gad Construction Co. Ltd., 43(1) P.D. 183 (1989), pp. 191–192; Kiryat Wolfson Apartment Owners and Residents Association v. Kiryat Wolfson in Jerusalem—Management and Services Co. Ltd., para 50 (available at Nevo, March 14, 2007).
- 50.
Attorney General v. Gad Construction Co. Ltd., 43(1) P.D. 183 (1989), pp. 191–192.
- 51.
Kiryat Wolfson Apartment Owners and Residents Association v. Kiryat Wolfson in Jerusalem—Management and Services Co. Ltd., paras 44–51 (available at Nevo, March 14, 2007).
- 52.
B.G. Financing v. Attorney General (June 8, 1993) (unpublished); Israeli Banking Supervisor v. First International Bank for Mortgages, paras 66–68 (available at Nevo, May 5, 2009).
- 53.
See, e.g., Attorney General v. Shikun U’Fituach LeIsrael Ltd., paras 20–28 (available at Nevo, December 6, 2011); Attorney General v. B. Yair Construction Co. 1998 Ltd., paras 29–34 (available at Nevo, February 19, 2012). See also Becher and Gelbard (2013a).
- 54.
See, e.g., Attorney General v. Bank Leumi, PM 5763(1) 481 (2004), pp. 520–524; Israeli Banking Supervisor v. First International Bank for Mortgages, paras 69–77 (available at Nevo, May 5, 2009).
- 55.
Israel Nursing Home Assoc. v. State of Israel, paras 11–29 (available at Nevo, October 11, 2009).
- 56.
Inheritors and Estate Executor of the Late Hinda Milgrom z”l v. Mish’an Center, 52(4) P.D. 145 (1998).
- 57.
See, e.g., ibid., p. 166; Israeli Banking Supervisor v. First International Bank for Mortgages, paras 74–75 (available at Nevo, May 5, 2009).
- 58.
Israeli Banking Supervisor v. First International Bank for Mortgages, para 75 (available at Nevo, May 5, 2009).
- 59.
Lusthaus and Spanic (1994), pp. 322–323.
- 60.
See Ituran Location & Control Ltd. v. Attorney General, paras 95–99 (available at Nevo, January 26, 2004).
- 61.
See, e.g., Attorney General v. SHL Telemedicine Ltd (available at Nevo, April 30, 2007); Ituran Location & Control Ltd. v. Attorney General, paras 95–99 (available at Nevo, January 26, 2004).
- 62.
Inheritors and Estate Executor of the Late Hinda Milgrom z”l v. Mish’an Center, 52(4) P.D. 145 (1998), pp. 163–167. In so ruling, the Court deviated from previous decisions of the Tribunal, which approved future updates in accordance with the supplier’s effective tariff. See Lusthaus and Spanic (1994), pp. 323–325. In the Milgrom case, the outcome was that the estate paid for the nursing home’s services according to the independent living tariff—i.e. one-fifth of the nursing-home tariff.
- 63.
Ituran Location & Control Ltd. v. Attorney General, para 99 (available at Nevo, January 26, 2004); Israel Nursing Home Assoc. v. State of Israel, paras 17–20 (available at Nevo, October 11, 2009); Attorney General v. SHL Telemedicine Ltd, paras 41–41 (available at Nevo, April 30, 2007);
- 64.
Indeed, the official explanatory notes for the amendment (HH 2010, 294, 299–300) stated that the words “for the object of the transaction” were meant to clarify that the exclusion of “a condition determining the monetary consideration” pertains only to the consideration for the object itself—and not to ancillary conditions, such as terms regarding the calculation or determination of the consideration, the duty to give a deposit, timing of payment, etc. It is, however, moot whether adding the words “for the object of the transaction” makes this clearer.
- 65.
Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, OJ 1993, L 95/29.
- 66.
See, e.g., Israeli Banking Supervisor v. First International Bank for Mortgages, para 72 (available at Nevo, May 5, 2009).
- 67.
Wexlin v. Engel General Const. Co. Ltd., para 11 (available at Nevo, February 28, 2005).
- 68.
Association of Residents of Retirement Communities v. Achuzat Bait—Commercial Center and Elderly Residence, para 24 (available at Nevo, May 28, 2013).
- 69.
Association of Residents of Retirement Communities v. Achuzat Bait—Commercial Center and Elderly Residence, para 13 (available at Nevo, May 28, 2013);
- 70.
Attorney General v. SHL Telemedicine Ltd, paras 38–43; (available at Nevo, April 30, 2007).
- 71.
Migdal HaZahav Ltd. v. Attorney General, paras 9–21 (available at Nevo, December 11, 2003).
- 72.
“Lev HaIrr” Condominium Board v. O’Neill Construction Ltd. (available at Nevo, September 21, 2014).
- 73.
Association of Residents of Retirement Communities v. Attorney General (available at Nevo, December 30, 2014).
- 74.
Sections 14, 15, 17, 18, and 30, respectively, of the Contracts (General Part) Law, 1973.
- 75.
Sections 2–7A of the Consumer Protection Law, 1981; sections 55–58 of the Control of Financial Services (Insurance) Law, 1981; sections 3–4 of the Banking (Service to Customer) Law, 1981.
- 76.
- 77.
See, e.g., Supervision of Prices for Goods and Services (Fares for Buses and Local Trains) Order, 2003; Supervision of Prices for Goods and Services (Train Fares) Order, 2008.
- 78.
Supervision of Prices for Goods and Services (Applying the Law to Driving Test Services, Determining Level of Supervision, and Setting Maximum Prices) Order, 2014.
- 79.
Supervision of Prices for Goods and Services (Applying the Law to Service Providers in the Absence of Registration in the Title Land Registration) Order, 1999.
- 80.
Supervision of Prices for Goods and Services (Maximum Price for Approved Textbooks) Order, 2014; Supervision of Prices for Goods and Services (Maximum Price for Approved Textbooks) (Books for Arabic Speakers) Order, 2016.
- 81.
Supervision of Prices for Goods and Services (Maximum Prices at Filling Stations), 2002.
- 82.
Supervision of Prices for Goods and Services (Maximum Prices for Blood Products), 2008.
- 83.
Supervision of Prices for Goods and Services (Maximum Prices for Prescription Drugs), 2001.
- 84.
Supervision of Prices for Goods and Services (Determining Level of Supervision and Maximum Prices for Gas Equipment Deposits), 2015.
- 85.
See section 112 of the Water Law, 1959; section 31 of the Electricity Sector Law, 1996; Supervision of Prices for Public Summer Day-Camps Law, 2017; and section 6C of the Sales (Housing) Law, 1973 (as amended in 2014), and Sales (Housing) (Restriction of Legal Expenses) Regulations, 2014, respectively.
- 86.
Sections 5 and 6 of the Regulation of Non-Bank Loans Law, 1993.
- 87.
Regulation of Non-Bank Loans Law (Amendment no. 5), 2017.
- 88.
See, e.g., sections 2(a)(13) (disclosure of products’ ordinary price, or the price charged in the past, including credit conditions and interest rate), 9 (various aspects of credit sales, including the non-credit price, interest rate, any price additions, payment times, etc.), 14A(b)(9–10) (various components of the price in timesharing transactions, including maintenance payments), 14C(a)(3) (price and payment conditions in telemarketing), and 17B (suppliers’ duty to display the price visibly and clearly on products’ packages, in Israeli currency, and the price per specific weight or volume units).
- 89.
Section 3 requires disclosure in writing, prior to signing the agreement, of the interest rate for the loaned amount, calculated annually and incorporating compound interest in the calculation, in accordance with the loan repayment dates; the components of variable interest, if applicable, the principles for changing the interest rate, and the dates or events upon which rates are to be changed; the type and rate of linkage to an index or another base, if applicable; the base of linkage and its date, and the elements to which linkage applies; the effective annual cost of the credit; and more. See also section 15 of the Banking (Service to Customer) (Full Disclosure and Submission of Documents) Regulations, 1992.
- 90.
- 91.
Ministry of Finance, Committee for Increasing Competition in Common Banking Financial Services: Summary Report (September 1, 2016): http://www.mof.gov.il/Committees/CompetitivenessCommittee/SummarizingReport.pdf.
- 92.
Law for Increasing Competition and Reducing Concentration in the Israeli Banking Market, 2017.
In the same vein, the 2016 Credit Data Law (effective November 2017) mandates the establishment of a credit data register accessible to licensed credit bureaus and the customers themselves, to assist non-bank lenders in formulating reliable credit ratings based on information that used to be held almost exclusively by the banks.
- 93.
Plato-Shinar (2014), pp. 17–21.
- 94.
Plato-Shinar (2016), pp. 14–15, 31–35, 45–51, 66–72, and 139–141.
- 95.
Ibid., pp. 15, 40–41, and 135; Plato-Shinar (2007).
- 96.
- 97.
Banking Rules (Customer Service) (Fees), 2008; Bank of Israel, About the 2008 Bank Fees Reform, available at: http://www.boi.org.il/en/ConsumerInformation/ConsumerIssues/Pages/AmalotReform.aspx, accessed September 19, 2018; See also Plato-Shinar (2016), pp. 143–145; Haim (2013), pp. 57–58; Bachar (2012), pp. 103–119.
- 98.
Bank of Israel, Price Lists of Banks and Credit Card Companies (Fees), available at: http://www.boi.org.il/en/ConsumerInformation/Pages/CommissionRates.aspx. Page consulted on September 19, 2018.
- 99.
Bachar (2012), pp. 222–226 and 231–232.
- 100.
Sharnoa Computerized Machines Tel-Aviv Ltd. v. Bank HaPoalim Ltd. (available at Nevo, May 15, 2016). See also Haim (2013), p. 58.
- 101.
Banking (Service to Customer) (Supervision on Basic Track Service) Order, 2014; Bank of Israel, Encouraging Banking Competition and Increasing Transparency (July 8, 2013), available at http://www.boi.org.il/en/NewsAndPublications/PressReleases/Pages/08-07-2013-Pikuach.aspx; Bank of Israel, Summary Report of the Team to Examine Banking Competitiveness (April 18, 2013), available at: http://www.boi.org.il/en/BankingSupervision/Survey/Pages/competition.aspx; Plato-Shinar (2016), pp. 145–146.
- 102.
Bank of Israel—Banking Supervisor, Reduction or Increase of Interest Rates (Proper Conduct of Banking Business Directives No. 421, 451, 470), Circular No. 06-2398 (September 9, 2013), available at: http://www.boi.org.il/he/BankingSupervision/LettersAndCircularsSupervisorOfBanks/HozSup/2398.pdf. For a detailed analysis of this regulation and an empirical evaluation of its effectiveness, see Bachar (2012), pp. 68–88 and 208–218.
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We thank Hila Davidovich, Ronnie Neubauer, and Reut Ofek for helpful comments.
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Zamir, E., Mendelson, T. (2020). Three Modes of Regulating Price Terms in Standard-Form Contracts—The Israeli Experience. In: Atamer, Y.M., Pichonnaz, P. (eds) Control of Price Related Terms in Standard Form Contracts. Ius Comparatum - Global Studies in Comparative Law, vol 36. Springer, Cham. https://doi.org/10.1007/978-3-030-23057-9_16
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