The Common Law Foundations of the Israeli Draft Civil Code – A Critical Review of a Paradigm-Shifting Endeavor

Abstract

Although considered a mixed jurisdiction, the Israeli legal system differs from other mixed jurisdictions, as it was not originally a civilian jurisdiction that was subsequently exposed to the influence of common law, but rather the other way around. Since the establishment of the State in 1948, the Knesset adopted separate statutes, reforming contract law and law in enactments influenced by Continental law. However, the style and method of legal development have, at all times since the British Mandate (1917-1948), remained in the tradition of the Common Law. Life in developed states foresees intensive commercial relations. Persons, goods, services and capital regularly crossing national borders. To partake in such exchanges, a proper legal infrastructure is necessary. Israel is a small country, not an international commercial center, with a language not spoken or read by many outside Israel. Its legal system cannot develop fast enough by precedents. A carefully drafted civil code, based on comparative research, will improve Israel's legal infrastructure and serve as a basis for future development, similar to other countries that adopted a civil code. The Israeli Ministry of Justice shared this perception early on, however did not appreciate the magnitude of the hurdles that need to be cleared in order to achieve the paradigm shift from the common law tradition to a civilian one. The work on the Code spanned almost five decades, by first adopting separate statutes and, since 1975, planning a comprehensive Civil Code under the leadership of Prof. Uri Yadin, of Hebrew University, appointed as Deputy Attorney General at the Israeli Ministry of Justice. In 1984, the Drafting Committee was established, chaired by Prof. Aharon Barak, former professor of law at Hebrew University, at the time Justice (1995-2006, President) of the Israel Supreme Court, and its members included eminent Israeli legal scholars. The Draft Civil Code was submitted to the Knesset in 2011. It comprises 996 sections, organized in seven parts: the first two parts represent the parts of the Draft, the first addressing its fundamental principles (§§ 1-4), legal capacity (§ 5) and definitions (§ 6); and the second – acts (§§ 7-16), capacity to act (§§ 17-32) and agency (§§ 33-47). Three specific parts follow: part 3 – obligations (§§ 48-498), part 4 – property (§§ 499-692), and part 5 – succession (§§ 693-815). Part 6 covers limitation of claims (§§ 822-859), and part 7 – general provisions (§§ 860-996). Beyond offering a revision of existing legislation and adaptation to modern times, the Code was expected to make an important contribution to the establishment of a systematic jurisprudence. Coherence will lead to the crystallization of a clear outline of the system, and vagueness of legal doctrines is prevented. An analysis of the Code, however, casts doubts over its ability to achieve these goals. Thanks to the statutes already adopted since the 1960s and the Drafting Committee's work, adopting a civil code is feasible, but requires overcoming difficulties in first understanding: (a) how a codified system differs from an uncodified one, (b) the drafting process, in particular the role of legal science, and (c) the structure and contents of a workable civil code. In January 2007 an earlier version of the Draft was presented by the Drafting Committee a symposium that took place at Max Planck Institute for Comparative and International Private Law in Hamburg. The presentations of the Israeli scholars, together with critical comments made by eminent European scholars, were published in The Israeli Draft Civil Code in Comparative Perspective (ed. by Kurt Siehr and Reinhard Zimmermann) (2008). The book sheds much light on the perceptions of Committee members with respect to a considerable number of issues, and offers important insights to its critical evaluation. It is against this background that the Draft Civil Code is analyzed in this study. The paper addresses the following subject-matters: the case for adopting a civil code in Israel (part II); the preconditions for a successful civil code (part III); a critical evaluation of the Draft Civil Code's part on fundamental principles (part IV); a critical evaluation of the structure and contents of the specific parts (Part V); a critical evaluation of the structure and contents of the part, in particular the concept of the juridical act, as applied in the Draft (part VI); followed by conclusions and recommendations regarding the way forward (part VII).