Résumé
Le premier point de l’article rappelle les raisons historiques et sociologiques des législations en vigueur en Israël et les raisons d’un relatif dédain pour les usages. Le second point s’attarde sur les principales décisions de justice qui ont abouti à une approche apparemment large et informelle de l’interprétation contractuelle qui a été un instrument pour imposer des principes constitutionnels à des pratiques contractuelles. Cela a été possible par l’élaboration d’une technique d’interprétation libre de contraintes textuelles et «téléologique». Cette approche s’est développée à travers une extensive application de la bonne foi. Cependant, la tendance jurisprudentielle indique un retour à une approche plus mesurée. Le troisième et dernier point tend à mettre en exergue les conséquences de l’hégémonie de la bonne foi au détriment des normes informelles.
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Notes
- 1.
The term “mixed jurisdiction” is ambiguous: in this paper it refers to the application by a judicial authority of laws of foreign origin having been integrated within the Law of the state within which this particular court has jurisdiction.
- 2.
The Enlightenment is the period during the seventeenth and eighteenth century when rationalist thought started penetrating and impacting profoundly European culture as well as Jewish communities in Germany and France. Because most of the first Israeli lawyers came from a Jewish environment deeply affected by the Enlightenment, few were well-versed in Jewish Law. However, many had received their legal education either in Germany or in other European Civil Law countries and were familiar with the concept of Good Faith; the others, educated in England, were familiar with the Reasonable Man standard. It is well accepted that, even when not explicitly acknowledged by judicial rhetoric, these two standards rely on conducts generally accepted in similar circumstances.
- 3.
Tedeski (1973), p. 9 (hereinafter Tedeski).
- 4.
Mautner (1998), pp. 321–352 (Hebrew).
- 5.
The State of Law concept is a German concept that does not exist in French law and is not the equivalent of the Anglo-American Rule of Law.
- 6.
Aaron Barak was President of the Supreme Court of Israel from 1995 to 2006. Prior to that, he served as a Justice on the Supreme Court of Israel (1978–1995), as the Attorney General of Israel (1975–1978), and as the Dean of the Law Faculty of the Hebrew University of Jerusalem (1974–1975).
- 7.
The tem “civil” is used here to reflect the abysmal divide between the members of the Israeli Public who believe that the Israeli State is a secular entity that should have a Constitution as a matter of political good husbandry, and those who believe that the Torah (the Jewish Bible) is the Constitution of the Jewish State.
- 8.
Contracts (General Part) Law, 1973-Article 12.
- 9.
Contracts (General Part) Law, 1973-Article 39.
- 10.
Contracts (General Part) Law, 1973-Article 61.
- 11.
In the Bible, the linguistic reference for Hebrew, the Hebrew term referred time and again by the Supreme Court means literally “royal”.
- 12.
The Mejelle provided that every provision of the custom is considered a written word and binding. Gavizon (1984). Abolition of the Mejelle: Custom as a Source of law. Mishpatim 14: 325 (hereinafter “Gavizon”). The place of usages in the Mejelle is similar to that of their place in the French Civil Code: they are informal norms with normative force while in Anglo-Saxon law usage is a standard or measure of reasonableness.
- 13.
See Gavizon (1984).
- 14.
A proposed Code of Obligations was written at the instigation of Professor Barak but has unattended in the legislation commission of the Parliament for many years.
- 15.
Whether those references amount to a specific but limited recognition constituting exception to a general refusal of the use of usages and customs, or whether those references are specific directives to use a particular usage under a general acceptance of all usages and customs, was a question debated after the abolition of Ottoman Law. The answer then given was that indeed Israeli law generally recognized the existence of usages and customs.
- 16.
Adar (2014), pp. 518–538.
- 17.
The author added the expression “assessment of the parties’ intention” so that the English translation be closer to the Hebrew terminology that indicates that the intentions are the result of an evaluation or of a thought process. Professor Zamir once suggested the indication of a process resulting in intentions would suggest the possibility to refer to external, objective indications of such intentions.
- 18.
Word added by the author in order that the English translation correspond more adequately to the original.
- 19.
Id.
- 20.
Id.
- 21.
Id.
- 22.
BGB-242; BGB-157 “Interpretation of contracts: Contracts are to be interpreted as required by Good Faith, taking customary practice into consideration.”
- 23.
Also translated as “generally accepted practices” or “usage”.
- 24.
These considerations did not result from any actual interest in Israel for the School of American New Formalism.
- 25.
SC-SH Beit Yules v Raviv PD 43(1): 441 [1989].
- 26.
Chief Justice Barak coined the term “valve concept” and used it abundantly.
- 27.
Chief Justice Shamgar insisted that the semantics of the term “tender” pointed to a legal procedure implying competition between similarly situated parties. This position hints to the relationship existing between language and usage.
- 28.
Justice Barak sized the fact that one of the bidders was a public company to base his claim that the principles of administrative law applied.
- 29.
Justice Barak famously wrote: “The Law does not demand that the parties behave like angels toward one another; but the Law demands that they not be wolves to one another; the Law demands that they be human to human- humanely.”
- 30.
Justice Barak was concerned by the plight of all small businesses that were scrambling in darkness to meet discretionary and ever-changing criteria imposed by unscrupulous commercial and political players.
- 31.
SC-CA 4628/93 State of Israel v. Apropim Housing and Promotions (1991). PD 49 (2): 265[1995].
- 32.
Both cases were heard twice by the Supreme Court, the second time by an enlarged panel of nine (9) Justices instead of the regular 3- member panel.
- 33.
Because of large-scale immigration from the countries of the former Soviet Union, the appellant wished to encourage the speedy building of residential apartments. This was done within the framework of a ‘Program Contract’, which gave incentives to builders in the form of a State guarantee to buy apartments that were not sold on the open market, and it imposed sanctions in the event of building delays. The incentives were particularly significant in development areas, where the State undertook to buy all the apartments that were not sold on the open market. However, the contract was drafted carelessly, and it left room for the respondent to argue that although it imposed sanctions for building delays in desirable areas, there was no such sanction for building delays in development areas. The District Court accepted the respondent’s argument.
- 34.
Until then, the judge had apply the 2-stage approach: to first turn to the text of the contract and the ordinary meaning of its wording in order to find a solution to the dispute between the parties; only when the text proved truly obscure, mistaken, unhelpful would the judge turn to the circumstances surrounding the agreement of the parties. In Apropim, The District Court held that the language of the contract was clear, and therefore it could not take account of the circumstances, and particularly the underlying purpose of the contract. Barak convinced the Supreme Court to overturn the District Court Decision.
- 35.
The term “subjective purpose” is legally defined in case-law in the singular but its full meaning is better translated in English by using the plural. Actually courts and scholars explain and define the Hebrew term as: the intentions of the parties, i.e., the purposes, objectives, goals and interests of the specific parties in the specific transactions and the expression given to it in the language of the contract.
- 36.
The objective purpose of a contract consists of the purposes, interests and goals that a contract of this sort or type is designed to achieve. The objective purpose is deduced from the ‘character and nature of the transaction made between the parties’.
- 37.
SC-CA. SH 2045/45 Vegetable Growers Association v. State of Israel. Nevo-online (by subscription)[2006].
- 38.
Under the terms of an agreement between the State of Israel and the Vegetables Growers Association, the State was bound to compensate the Israeli growers for their losses in revenues when, after the opening of trade between Gaza and Israel, vegetables could be imported from Gaza to the detriment of the Israeli growers. The document treated the various produces differently and the issue was whether the potato growers were to be paid the promised compensation as every other grower, even though the import of potatoes from Gaza was inconsequential.
- 39.
Indeed Chief Justice Barak, now the Supreme Court President, considered that language was “always subject to interpretation” and that its meaning could only be determined at the end of the interpretative process.
- 40.
The democratic division of powers in Public Law was also threatened since the interpretation of legislation was subjected to the same interpretative approach.
- 41.
LCA 6339/97 Roker v. Solomon. PD 55(1): 199 [1999].
- 42.
The owner of an apartment on the ground floor of a jointly-owned building built an extension mostly on jointly-owned grounds and that were not in use under the apartment building; he also appropriated some storage space of other owners. He however built new storage space for those owners adjacent to the jointly-owned grounds. The owners refused to be satisfied with the payment of damages and the brand new storage space and asked and obtained an injunction that the owner-builder demolish all the improvements (which they had a right to demand under the Real Estate Law). The owner-builder refused and argued that the others were exercising their right in bad faith. The majority of the Justices applied Article 14 of the Real Estate Law while Justice Barak argued that Article 39 of the Contracts Law should prevail. The comparison between the two provisions and Justice Barak’s arguments led to a heated discussion of the concept of Good Faith in the Justices’ opinions.
- 43.
This was proven by expert testimony.
- 44.
No specific citation is given for any lower court case because such cases have not been translated in English and therefore they are not accessible to most readers. However, specific references will be provided by the author upon request.
- 45.
- 46.
- 47.
Shur-Ofry and Tur-Sinai (2015), p. 391.
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Slomiansky, A. (2018). Political Considerations in the Recognition of Usages: The Israeli Experience. In: Mayali, L., Mousseron, P. (eds) Customary Law Today. Springer, Cham. https://doi.org/10.1007/978-3-319-73362-3_10
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