Gabriela Shalev - Academia.edu (original) (raw)
Papers by Gabriela Shalev
Social Science Research Network, Jun 13, 2015
The Contracts (General Part) Law, 1973 (hereinafter called the present Law), which has recently c... more The Contracts (General Part) Law, 1973 (hereinafter called the present Law), which has recently come into effect, constitutes the first chapter of an independent Israel Civil Code. Owing to the exigencies of time, laws regulating specific contractual transactions were enacted before the present Law; eight other enactments - the Agency Law, the Bailees Law, the Guarantee Law, the Pledge Law, the Sale Law, the Gift Law, the Transfer of Obligations Law, the Hire and Loan Law, - having already been introduced. Sec. 61(a) of the present Law which contemplates a possible conflict between these specific enactments and its own provisions, excludes the application of the present Law as lex generalis in the event of conflict between the general principles it embodies and the specific regulations of these Laws. It is, however, clear that in the absence of any specific arrangement the provisions of the present Law will apply and that where such an arrangement exists the provisions of the present Law will supplement it.
Edward Elgar Publishing Limited eBooks, Dec 28, 2023
Social Science Research Network, Jun 16, 2015
Social Science Research Network, Jun 16, 2015
Social Science Research Network, 1990
Standard contracts frequently appear in a typed form, prepared in advance by one party. This part... more Standard contracts frequently appear in a typed form, prepared in advance by one party. This party, usually the supplier of services or commodities, fixes the terms of the contract, while the other party, the customer, can only accept fully the offer embodied in the typed form, or reject it. As the Englishman would say: he may "take it or leave it."
Social Science Research Network, Jun 14, 2015
Israel Law Review, Oct 1, 1978
An exemption clause which purports to affect the rights and liabilities of a stranger to the cont... more An exemption clause which purports to affect the rights and liabilities of a stranger to the contract raises the question of the connection between privity and exemption clauses. It is usual to regard the denial of validity to an exemption clause referring to the liability of a stranger as deriving from privity. Let us therefore commence by clarifying the meaning of privity and its relationship to exemption clauses and then go on to explain our view that such clauses should operate in favour or against a stranger in accordance with general principles of the positive contract law. Since privity has two aspects — denying a contract the capacity neither to benefit nor to harm a stranger — our treatment of the influence of privity upon exemption clauses will likewise deal with exempting a stranger and fettering him. After describing the situation in English law, we will turn to Israeli law which is no longer identical with English law, regarding the relationship between privity and exemption clauses.
Israel Law Review, Jul 1, 1976
Chapter 4 of the new Israeli Contracts (General Part) Law, 1973, introduces the concept of a cont... more Chapter 4 of the new Israeli Contracts (General Part) Law, 1973, introduces the concept of a contract in favour of a third party, while granting express recognition to the right of a third party beneficiary. Even those, (including the author) who maintain, that the right of a third party beneficiary could and should be derived, even before the commencement of the new Law, from the general principles and premises of the old Israeli law of contract, cannot fail to see in the above-mentioned chapter an important innovation in the Israeli legal system.This paper is a comparative analysis of the institution of third party beneficiary. The analysis will consist of a presentation and critical examination of the central concepts and doctrines involved in the institution under discussion, and it will be combined with a comparative survey of the arrangements adopted in various legal systems. The choice of this approach stems from the particular circumstances of the new legislation.While in most countries, comparative legal research is a luxury, in Israel it is a necessity. The new legislation in private law is inspired to a great extent by Continental codifications. As far as the law of contract is concerned, Israel is now in the process of becoming a “mixed jurisdiction”: departing from the common law tradition and technique, and heading towards an independent body of law, derived from various sources, mainly Continental in both substance and form.
Israel Law Review, 1992
The legal debate concerning political agreements has lately won renewed interest in Israel, follo... more The legal debate concerning political agreements has lately won renewed interest in Israel, following some disturbing incidents that took place just prior to the establishment of the present government. These events, which were referred to by Justice Elon as “a weakness of political culture” and even “political eclipse”, have forced the High Court of Justice to deal with a number of petitions concerning political agreements over the past year. The Legislature also has had to give this matter considerable attention; the Basic Law: The Knesset, Amendment no. 12, allows for amending and even preventing disruptive phenomena such as political defection which tend to occur alongside political agreements.
Israel Law Review, 1998
The appellant was indicted in the Jerusalem Magistrate Court for two incidents of car theft. His ... more The appellant was indicted in the Jerusalem Magistrate Court for two incidents of car theft. His detention was requested on the grounds that he posed a "danger to society". The Magistrate Court agreed to his arrest, holding that a custom has been established whereby custody may be justified in crimes which have become "a nationwide scourge", including car theft. The District Court rejected the appeal. The appellant was granted permission to appeal the decision in the Supreme Court (decision ofDorner J. and Barak J.; Cheshin J. dissenting) and his conditional release was ordered. However, it was decided to hold Special Proceedings in order to discuss some of the important issues raised by the case. The principal constitutional question raised by the case was whether the Basic Law: Human Dignity and Liberty influences the interpretation of the existing law, in the present case, the law of arrest as regulated by the Law of Criminal Procedure.
Israel Law Review, 2002
The purpose of this article is to give a panoramic view of Chief Justice Barak's theory of interp... more The purpose of this article is to give a panoramic view of Chief Justice Barak's theory of interpretation, namely the purposive theory, which is contained in a six volume treatise in Hebrew, Interpretation in Law. In order to understand this theory, it is useful to imagine a spectrum where, on the one hand, there is the subjective intent-namely the meaning that can be deduced from the intent of the writer of the text-and, on the other hand, the objective intent-namely the meaning based on the fundamental principles of the legal system. Various legal texts are interpreted by placing them on different points of this spectrum in accordance with the relevant area of law. Accordingly, in defining the purpose of Basic Laws, Barak gives primary regard to the fundamental principles of the system, with very little regard to the intentions of the drafters. In contrast, the purposive interpretation of wills occupies the other end of the spectrum, with maximum regard for the subjective intention of the drafter and a much smaller regard for the fundamental principles of the legal system. After a brief review of the philosophical and theoretical application of the purposive interpretation of various legal texts, the article moves on to demonstrate, through decisions of Chief Justice Barak, the judicial application of the purposive interpretation in two of the most important fields of interpretation: constitutional interpretation and interpretation of contracts.
Israel Law Review, 1986
INTRODUCTORY NOTE This festive double issue of the Israel Law Review is dedicated to Professor G.... more INTRODUCTORY NOTE This festive double issue of the Israel Law Review is dedicated to Professor G. Tedeschi on the occasion of his eightieth birthday. It is but a modest token of our admiration for the man who has shaped legal research in Israeli civil law and has for so many years been a model and source of inspiration for students and scholars alike. The articles that appear in this issue reflect in many ways the tremendous breadth of Prof. Tedeschi's research and the enormous intellectual influence he has had on Israeli legal scholarship. They range in subject matter from ethics, legal philosophy and jurisprudence, through various aspects of torts law, family law, contract law, property law, public law and criminal law. They deal with problems of codification, interpretation and fundamental legal concepts. They juxtapose comparative law with Israeli positive law. They employ various research tools-inductive methodology, criticism and analysis of case law, field study and commentary on statutory law. Prof. Tedeschi's legacy finds expression in all of these. And yet, as indicated by his extraordinary bibliography, the articles in this issue reflect only a small part of Prof. Tedeschi's vast scholarship. Prof. Tedeschi's role in the Israeli legal world is also reflected in the fact that each of the contributors to this issue is a former student of his. He is without doubt the father of legal research in this country, establishing for his fellow jurists the highest scientific standards. In his academic commitment and uncompromising pursuit of excellence, Prof. Tedeschi serves as a model for all of us. The Israel Law Review joins the Faculty of Law at the Hebrew University of Jerusalem and the entire Israeli legal community in expressing to Prof. Tedeschi our gratitude and esteem, and in wishing him many more years of creativity and good health.
Israel Law Review, 1986
The Contracts (General Part) Law, 1973, is the fundamental statute in Israeli contract law, and w... more The Contracts (General Part) Law, 1973, is the fundamental statute in Israeli contract law, and will in the future serve as the basis for the codification of Israel civil law. The Law was enacted following a decade of meticulous preparatory work by a committee headed by Professor Tedeschi. Prof. Tedeschi was the leading intellectual force in this committee; his influence is apparent in the approaches, principles and concepts of the Law, as well as in its particular provisions. Prof. Tedeschi also devoted a part of his prolific writings to the realm of contracts law. This article, dealing with only two sections of the wide-ranging Contracts (General Part) Law, is dedicated with admiration to the father of Israeli modern contract law.
Israel Law Review, Apr 1, 1974
The Contracts (General Part) Law, 1973 (hereinafter called the present Law), which has recently c... more The Contracts (General Part) Law, 1973 (hereinafter called the present Law), which has recently come into effect, constitutes the first chapter of an independent Israel Civil Code. Owing to the exigencies of time, laws regulating specific contractual transactions were enacted before the present Law; eight other enactments - the Agency Law, the Bailees Law, the Guarantee Law, the Pledge Law, the Sale Law, the Gift Law, the Transfer of Obligations Law, the Hire and Loan Law, - having already been introduced. Sec. 61(a) of the present Law which contemplates a possible conflict between these specific enactments and its own provisions, excludes the application of the present Law as lex generalis in the event of conflict between the general principles it embodies and the specific regulations of these Laws. It is, however, clear that in the absence of any specific arrangement the provisions of the present Law will apply and that where such an arrangement exists the provisions of the present Law will supplement it.
Social Science Research Network, Jun 14, 2015
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.
The remedies section in the new Israeli draft civil code is an endeavor to create a unified law o... more The remedies section in the new Israeli draft civil code is an endeavor to create a unified law of remedies, applicable to all branches of civil and commercial law, including torts and breach of contract. This article explores the main innovations included in the remedies section. It opens with a short overview of the status of the law of remedies in modern times, and the debate over the justification for unifying it. Then, in the remainder of the article, the authors examine the various changes, in terms of both structure and substance, reflected in the law reform.
Social Science Research Network, Jun 13, 2015
The Contracts (General Part) Law, 1973 (hereinafter called the present Law), which has recently c... more The Contracts (General Part) Law, 1973 (hereinafter called the present Law), which has recently come into effect, constitutes the first chapter of an independent Israel Civil Code. Owing to the exigencies of time, laws regulating specific contractual transactions were enacted before the present Law; eight other enactments - the Agency Law, the Bailees Law, the Guarantee Law, the Pledge Law, the Sale Law, the Gift Law, the Transfer of Obligations Law, the Hire and Loan Law, - having already been introduced. Sec. 61(a) of the present Law which contemplates a possible conflict between these specific enactments and its own provisions, excludes the application of the present Law as lex generalis in the event of conflict between the general principles it embodies and the specific regulations of these Laws. It is, however, clear that in the absence of any specific arrangement the provisions of the present Law will apply and that where such an arrangement exists the provisions of the present Law will supplement it.
Edward Elgar Publishing Limited eBooks, Dec 28, 2023
Social Science Research Network, Jun 16, 2015
Social Science Research Network, Jun 16, 2015
Social Science Research Network, 1990
Standard contracts frequently appear in a typed form, prepared in advance by one party. This part... more Standard contracts frequently appear in a typed form, prepared in advance by one party. This party, usually the supplier of services or commodities, fixes the terms of the contract, while the other party, the customer, can only accept fully the offer embodied in the typed form, or reject it. As the Englishman would say: he may "take it or leave it."
Social Science Research Network, Jun 14, 2015
Israel Law Review, Oct 1, 1978
An exemption clause which purports to affect the rights and liabilities of a stranger to the cont... more An exemption clause which purports to affect the rights and liabilities of a stranger to the contract raises the question of the connection between privity and exemption clauses. It is usual to regard the denial of validity to an exemption clause referring to the liability of a stranger as deriving from privity. Let us therefore commence by clarifying the meaning of privity and its relationship to exemption clauses and then go on to explain our view that such clauses should operate in favour or against a stranger in accordance with general principles of the positive contract law. Since privity has two aspects — denying a contract the capacity neither to benefit nor to harm a stranger — our treatment of the influence of privity upon exemption clauses will likewise deal with exempting a stranger and fettering him. After describing the situation in English law, we will turn to Israeli law which is no longer identical with English law, regarding the relationship between privity and exemption clauses.
Israel Law Review, Jul 1, 1976
Chapter 4 of the new Israeli Contracts (General Part) Law, 1973, introduces the concept of a cont... more Chapter 4 of the new Israeli Contracts (General Part) Law, 1973, introduces the concept of a contract in favour of a third party, while granting express recognition to the right of a third party beneficiary. Even those, (including the author) who maintain, that the right of a third party beneficiary could and should be derived, even before the commencement of the new Law, from the general principles and premises of the old Israeli law of contract, cannot fail to see in the above-mentioned chapter an important innovation in the Israeli legal system.This paper is a comparative analysis of the institution of third party beneficiary. The analysis will consist of a presentation and critical examination of the central concepts and doctrines involved in the institution under discussion, and it will be combined with a comparative survey of the arrangements adopted in various legal systems. The choice of this approach stems from the particular circumstances of the new legislation.While in most countries, comparative legal research is a luxury, in Israel it is a necessity. The new legislation in private law is inspired to a great extent by Continental codifications. As far as the law of contract is concerned, Israel is now in the process of becoming a “mixed jurisdiction”: departing from the common law tradition and technique, and heading towards an independent body of law, derived from various sources, mainly Continental in both substance and form.
Israel Law Review, 1992
The legal debate concerning political agreements has lately won renewed interest in Israel, follo... more The legal debate concerning political agreements has lately won renewed interest in Israel, following some disturbing incidents that took place just prior to the establishment of the present government. These events, which were referred to by Justice Elon as “a weakness of political culture” and even “political eclipse”, have forced the High Court of Justice to deal with a number of petitions concerning political agreements over the past year. The Legislature also has had to give this matter considerable attention; the Basic Law: The Knesset, Amendment no. 12, allows for amending and even preventing disruptive phenomena such as political defection which tend to occur alongside political agreements.
Israel Law Review, 1998
The appellant was indicted in the Jerusalem Magistrate Court for two incidents of car theft. His ... more The appellant was indicted in the Jerusalem Magistrate Court for two incidents of car theft. His detention was requested on the grounds that he posed a "danger to society". The Magistrate Court agreed to his arrest, holding that a custom has been established whereby custody may be justified in crimes which have become "a nationwide scourge", including car theft. The District Court rejected the appeal. The appellant was granted permission to appeal the decision in the Supreme Court (decision ofDorner J. and Barak J.; Cheshin J. dissenting) and his conditional release was ordered. However, it was decided to hold Special Proceedings in order to discuss some of the important issues raised by the case. The principal constitutional question raised by the case was whether the Basic Law: Human Dignity and Liberty influences the interpretation of the existing law, in the present case, the law of arrest as regulated by the Law of Criminal Procedure.
Israel Law Review, 2002
The purpose of this article is to give a panoramic view of Chief Justice Barak's theory of interp... more The purpose of this article is to give a panoramic view of Chief Justice Barak's theory of interpretation, namely the purposive theory, which is contained in a six volume treatise in Hebrew, Interpretation in Law. In order to understand this theory, it is useful to imagine a spectrum where, on the one hand, there is the subjective intent-namely the meaning that can be deduced from the intent of the writer of the text-and, on the other hand, the objective intent-namely the meaning based on the fundamental principles of the legal system. Various legal texts are interpreted by placing them on different points of this spectrum in accordance with the relevant area of law. Accordingly, in defining the purpose of Basic Laws, Barak gives primary regard to the fundamental principles of the system, with very little regard to the intentions of the drafters. In contrast, the purposive interpretation of wills occupies the other end of the spectrum, with maximum regard for the subjective intention of the drafter and a much smaller regard for the fundamental principles of the legal system. After a brief review of the philosophical and theoretical application of the purposive interpretation of various legal texts, the article moves on to demonstrate, through decisions of Chief Justice Barak, the judicial application of the purposive interpretation in two of the most important fields of interpretation: constitutional interpretation and interpretation of contracts.
Israel Law Review, 1986
INTRODUCTORY NOTE This festive double issue of the Israel Law Review is dedicated to Professor G.... more INTRODUCTORY NOTE This festive double issue of the Israel Law Review is dedicated to Professor G. Tedeschi on the occasion of his eightieth birthday. It is but a modest token of our admiration for the man who has shaped legal research in Israeli civil law and has for so many years been a model and source of inspiration for students and scholars alike. The articles that appear in this issue reflect in many ways the tremendous breadth of Prof. Tedeschi's research and the enormous intellectual influence he has had on Israeli legal scholarship. They range in subject matter from ethics, legal philosophy and jurisprudence, through various aspects of torts law, family law, contract law, property law, public law and criminal law. They deal with problems of codification, interpretation and fundamental legal concepts. They juxtapose comparative law with Israeli positive law. They employ various research tools-inductive methodology, criticism and analysis of case law, field study and commentary on statutory law. Prof. Tedeschi's legacy finds expression in all of these. And yet, as indicated by his extraordinary bibliography, the articles in this issue reflect only a small part of Prof. Tedeschi's vast scholarship. Prof. Tedeschi's role in the Israeli legal world is also reflected in the fact that each of the contributors to this issue is a former student of his. He is without doubt the father of legal research in this country, establishing for his fellow jurists the highest scientific standards. In his academic commitment and uncompromising pursuit of excellence, Prof. Tedeschi serves as a model for all of us. The Israel Law Review joins the Faculty of Law at the Hebrew University of Jerusalem and the entire Israeli legal community in expressing to Prof. Tedeschi our gratitude and esteem, and in wishing him many more years of creativity and good health.
Israel Law Review, 1986
The Contracts (General Part) Law, 1973, is the fundamental statute in Israeli contract law, and w... more The Contracts (General Part) Law, 1973, is the fundamental statute in Israeli contract law, and will in the future serve as the basis for the codification of Israel civil law. The Law was enacted following a decade of meticulous preparatory work by a committee headed by Professor Tedeschi. Prof. Tedeschi was the leading intellectual force in this committee; his influence is apparent in the approaches, principles and concepts of the Law, as well as in its particular provisions. Prof. Tedeschi also devoted a part of his prolific writings to the realm of contracts law. This article, dealing with only two sections of the wide-ranging Contracts (General Part) Law, is dedicated with admiration to the father of Israeli modern contract law.
Israel Law Review, Apr 1, 1974
The Contracts (General Part) Law, 1973 (hereinafter called the present Law), which has recently c... more The Contracts (General Part) Law, 1973 (hereinafter called the present Law), which has recently come into effect, constitutes the first chapter of an independent Israel Civil Code. Owing to the exigencies of time, laws regulating specific contractual transactions were enacted before the present Law; eight other enactments - the Agency Law, the Bailees Law, the Guarantee Law, the Pledge Law, the Sale Law, the Gift Law, the Transfer of Obligations Law, the Hire and Loan Law, - having already been introduced. Sec. 61(a) of the present Law which contemplates a possible conflict between these specific enactments and its own provisions, excludes the application of the present Law as lex generalis in the event of conflict between the general principles it embodies and the specific regulations of these Laws. It is, however, clear that in the absence of any specific arrangement the provisions of the present Law will apply and that where such an arrangement exists the provisions of the present Law will supplement it.
Social Science Research Network, Jun 14, 2015
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.
The remedies section in the new Israeli draft civil code is an endeavor to create a unified law o... more The remedies section in the new Israeli draft civil code is an endeavor to create a unified law of remedies, applicable to all branches of civil and commercial law, including torts and breach of contract. This article explores the main innovations included in the remedies section. It opens with a short overview of the status of the law of remedies in modern times, and the debate over the justification for unifying it. Then, in the remainder of the article, the authors examine the various changes, in terms of both structure and substance, reflected in the law reform.