"יצא וחצי תאוותו בידו": התפתחותן של תרופות אמצע חדשות במשפט האזרחי ותרומתה הגדולה של הנשיאה נאור לעיצובן של תרופות אלו

Remedies in private law can be classified into two types: those that are by nature binary and those that are intermediary, for example, contributory negligence. This article seeks to point out the contribution of Chief Justice Naor to the development of intermediary remedies precisely on issues that on the face of it are binary. The article examines Justice Naor’s rulings on causality in tort law, restitution in contract law, and compensation for violation of autonomy in consumer protection law. The article shows that although these are ostensibly binary remedies, which according to law may be granted or denied, Justice Naor has found a way to grant them only partially, in various ways and by exercising discretion. Next, the article examines the arguments that may be behind the ruling of an intermediary remedy, some having to do with a specific legal area and others related to private law in general. Noteworthy among the correct arguments for private law in general are the ability to guide behavior through intermediate remedies; the incentive to reach compromises; the ability of the courts to display creativity; increasing trust in the courts; and the transition to a balancing theory. Alongside these advantages, the article mentions the disadvantages inherent in intermediary remedies, which are also partly related to a particular area of law and partly to all rulings on intermediary remedies in private law. The latter include the uncertainty involved; the need for an additional judicial ruling; and the concern with the proliferation of litigation and its duration. The article proceeds to point out that precisely when dealing with classic intermediary remedies available in tort law, Justice Naor at times refrained from acknowledging contributory negligence in connection with certain behaviors. The article examines the reasons behind these rulings, and points out that unlike in the various cases when Justice Naor created an intermediary remedy as a substitute for no compensation at all, in the case of contributory negligence, its recognition grants a remedy instead of providing full compensation for damages. Thus, to prevent harm to the injured party, Justice Naor refrained from recognizing this remedy, which may attest to the importance of remedial justice in Justice Naor’s conception.