Yehuda Adar | University of Haifa (original) (raw)

Papers by Yehuda Adar

Israel adopted the CISG, on October 25, 1999. However, as the deposition of Israel's instrume... more Israel adopted the CISG, on October 25, 1999. However, as the deposition of Israel's instrument of accession to the CISG was delayed until January 22, 2002, Israel officially became a Contracting State only as late as February 1, 2003. The same statute also repealed the two 1964 Hague CISGs on the International Sale of Goods. The late adoption of the CISG is one of the factors responsible for the relatively small body of Israeli case law relying directly on the CISG. Another, and arguably not less significant factor, concerns the lack of awareness on the part of many practicing lawyers of the existence or relevance of the CISG. The paucity of Israeli scholarly commentary on the CISG poses an additional obstacle to Israeli lawyers and law students understanding of the CISG. Finally, as in other jurisdictions, the low level of reliance on the CISG might be explained to a considerable extent by the general reluctance of professional international traders and their lawyers to rely on the legal system, preferring arbitration or alternative dispute resolution mechanisms.Despite the scarcity of Israeli case law, two factors mitigate this problem. First, in a number of Israeli Supreme Court cases a rather comprehensive analysis is offered by the Court. Furthermore, some of these cases discuss not only the appropriate interpretation of relevant provisions, but also the underlying policies and principles that the judiciary should apply in resolving international sales disputes. Second, some of the cases which involve transactions that were concluded prior to 2003 and thus are officially based on Uniform Law on the International Sale of Goods (ULIS), which was adopted at The Hague on July 1, 1964, offer insights into issues which today are raised by parallel provisions in the CISG. Cases explicitly referencing the CISG have been included in this chapter.

arguing tort actions should be barred only when they are brought to protect an "economic interest... more arguing tort actions should be barred only when they are brought to protect an "economic interest," as opposed to "property interests," existing independently of any contractual relationship). 9 CA 7833/06 Pamesa Ceramica v. Yisrael Mendelson Engineering Technical Supply Ltd. (17.03.2009) Nevo Legal Database (Isr.) (hereinafter the Pamesa case), available at http://cisgw3.law.pace.edu/cases/090317i5 .html. 10 CC (Hi) 137/01 Yaakov and Tovi Eisenberger Building and Public Works Co. Ltd. v. Yisrael Mendelson Engineering Technical Supply Ltd. (20.08.2006) Nevo Legal Database (by subscription) (Isr.). 11 See ULIS, §40. 12 Eisenberger v. Mendelson, at para. 18. 13 See infra, VI.C. 105 Pamesa case, para. 45. 106 CC (TA) 176684/02 Intermas Nets s.a v. Zilkha Aharon (15.08.2007) Nevo Legal Database (by subscription) (Isr.). 107 Id., para. 39. 108 Id., para. 42.

A Book in Honor of the Supreme Court Justice Theodore or, 2013

The section named "Remedies for Breach of an Obligation" in the official draft of the n... more The section named "Remedies for Breach of an Obligation" in the official draft of the new Israeli Civil Code represents a bold attempt to unify the various laws concerning civil remedies into a unified and coherent "Law of Remedies". This section is intended to apply to violations of civil obligations generally, including torts and breaches of contract. The article provides a theoretical perspective on the law of remedies through which the author offers a critical analysis of the remedies section in the Code. The author raises several basic questions which are not clearly addressed by the present version of the remedies section and the official commentary accompanying it, and outlines a number of issues that deserve clarification or reform, preferably before the Code comes into force.The article first proposes a basic theoretical distinction between two different types of remedies, which the author believes to be essential to any attempt to create a coherent law of remedies. It then examines the scope of application of the new section, especially with regards to obligations other than contract and tort, as well as obligations between private individuals and public authorities. The next part deals with the question of whether the remedies section includes a sufficiently diverse set of civil remedies. The inquiry is carried out in light of a proposed theoretical model for the construction of a comprehensive system of remedies. The final part presents the main criticism of the remedies' section in the Draft Code. The author claims that the present form of the Draft does not provide sufficient guidelines for the resolution of basic remedial issues such as the choice between available remedies, as well as the appropriate extent or form of any specific remedy to be awarded in any specific given case. Designing and formulating these guidelines is the main challenge facing the law of remedies today.

Social Science Research Network, 2014

This Volume offers an introduction to Israeli legal system. It includes a detailed analysis of th... more This Volume offers an introduction to Israeli legal system. It includes a detailed analysis of the Foundations of the Israeli Law, especially: history and legal sources of Israeli law constitutional law tort law intellectual property law trusts and antitrust law company law labour and tax law family law criminal Law private international law Israel and the EU Israel and international law The authors are specialists in their respective fields and teach at renowned Israeli universities. The volume is highly recommended for students, trainees, but also for lawyers, tax and management consultants, practitioners in business, administration, justice, media and anyone else who comes into contact with Israeli law.

Legal engineering is the process of designing, constructing and finally implementing means to inf... more Legal engineering is the process of designing, constructing and finally implementing means to influence the development of a legal system. In Israel, a relatively young legal system, the concepts of legal engineering and comparative law are deeply interconnected. This interconnection is best reflected in the area of private law. The development of this area of the law, almost since the very inception of the State of Israel, has been characterized by a careful and attentive examination of foreign legal regimes, national and supra-national alike. This was done with the explicit intention of benefiting from the wisdom and experience of older, but nevertheless modernized systems of law, before establishing original statutory arrangements. It seems no exaggeration to suggest that comparative legal thinking and research has been one of the most important factors responsible for the relatively smooth and successful transformation of Israeli private law, during the last 45 years or so, from...

Mishpat Ve'Asakim (Interdisciplinary Center Law Review), 2010

This paper discusses and critically examines the close interrelations of two of the main defences... more This paper discusses and critically examines the close interrelations of two of the main defences to liability in damages for torts and breach of contract. After a careful analysis of the various similarities between the doctrines of contributory (or comparative) negligence and mitigation of damages, and the basic difference between the two, the article reaches the conclusion that there is no justification for the ongoing existence of the mitigation doctrine. It should be abolished, and the doctrine of comparative negligence should be adopted across the board in both tort law and contract law.

SSRN Electronic Journal, 2022

The Organizational Contract, 2016

SSRN Electronic Journal, 2020

פרק התרופות בהצעת חוק דיני ממונות משקף ניסיון ליצירת דין תרופות אחיד שיחול על הפרת חיובים אזרחיים... more פרק התרופות בהצעת חוק דיני ממונות משקף ניסיון ליצירת דין תרופות אחיד שיחול על הפרת חיובים אזרחיים מכל סוג שהוא, ובכלל זה הפרות חוזים ועוולות נזיקין. רפורמה דרמטית זו צפויה להפוך את דיני התרופות מאוסף של דינים ספציפיים לענף משפטי אחד, אוטונומי ושיטתי. במאמר זה מבקשים המחברים לפרוש בפני המשפט הישראלי את עיקרי החידושים הגלומים בפרק התרופות בהצעת הקודקס האזרחי החדש. המאמר נפתח בדיון קצר במקומם של דיני התרופות בין ענפי המשפט בעידן המודרני, ובשאלת ההצדקה להאחדתם וקיבוצם בגדר מסגרת פורמלית אחת. בהמשך סוקרים המחברים את עיקרי החידושים שבפרק התרופות לגופם.

Principles vs. Rules in European Contract Law: From the PECL to the CESL, and Beyond. The article... more Principles vs. Rules in European Contract Law: From the PECL to the CESL, and Beyond. The article aims at challenging the current definitions of the principles of law from the point of view of the European legal system. Its multi-levelled structure and its constitutional architecture, strongly based on the subsidiarity of the European Union, call for a new understanding of its principles. The authors of the article assume that the principles of European law are to be identified with the common core of the national legal orders, i.e. with the ius commune Europaeum, and with the constitutional condition of its application by the European Court of Justice. Such principles should be obtained through the critical comparison among the national laws, which should be aimed at pinpointing their points of convergence, even if implied and potential, with the only limit of their «not inconsiderable divergences» (case Höchst). Moving from such assumptions, the article deals with some interpretat...

Social Science Research Network, 2020

This Article calls for a conceptual shift toward the scrutiny of exploitative consumer standard f... more This Article calls for a conceptual shift toward the scrutiny of exploitative consumer standard form contracts. Current approaches to consumer standard form contracts assume that imbalanced and unfair terms can be adequately challenged by aggrieved consumers and effectively scrutinized by vigilant courts. Some even believe that market forces and reputational constraints alone can deter firms from employing exploitative terms in their form contracts or dissuade them from actually relying on such terms. Criticizing these assumptions, the Article suggests supplementing the current means of addressing exploitation in standard consumer contracts by a dynamic preventive system of public control. Specifically, we propose a professional system of administrative oversight over the content of consumer form contracts. The Article demonstrates how such a machinery can efficiently tackle the widespread supply and use of unfair terms as well as unconscionable and even llegally invalid boilerplate...

1. Il contributo dei giuristi italkim all’esperienza giuridica di Israele. – 2. La figura di Guid... more 1. Il contributo dei giuristi italkim all’esperienza giuridica di Israele. – 2. La figura di Guido (Gad) Tedeschi e dei suoi allievi: Aharon Baraq, Izhaq Englard e Alfredo Mordechai Rabello. – 3. Le figure di Gualtiero e di Uriel Procaccia. – 4. La codificazione del diritto israeliano e il contributo dei giuristi italkim. – 5. Le figure di Edoardo Vitta e di Michele Corinaldi.