Enforced Performance in Common Law Versus Civil Law Systems: An Empirical Study of a Legal Transformation

Leon Yehuda Anidjar, Ori Katz, Eyal Zamir

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5 Scopus citations

Abstract

Legal systems differ about the availability of specific performance as a remedy for breach of contract. While common law systems deny specific performance in all but exceptional cases, civil law systems generally award enforcement remedies subject to some exceptions. However, there is an ongoing debate about the extent to which the practice of litigants and courts actually reflects the doctrinal divergence. An equally lively debate revolves around the normative question: Should the injured party be entitled to enforced performance or rather content itself with monetary damages? Very few studies have used qualitative methods, vignette surveys, or incentivized lab experiments to empirically study these issues, and none has quantitatively analyzed actual court judgments. Against the backdrop of the comparative law and theoretical debates, this Article describes the findings of a quantitative analysis of judgments concerning remedies for breach of contract in Israel during a sixty-nine-year period (1948-2016). The judicial and scholarly consensus is that the Remedies Law of 1970 revolutionized Israeli law by turning enforced performance from a secondary, equitable relief to the primary remedy for breach of contract. We nevertheless hypothesized that no such revolution has actually occurred. In fact, neither the common wisdom that the resort to enforced performance has significantly increased following the 1970 Law, nor our skeptic hypothesis that no such increase has occurred, were borne out. According to our findings, the resort to enforced performance actually decreased considerably after 1970. We examine several explanations for this result, and show that this unexpected phenomenon is associated with the increasing length of adjudication proceedings. The theoretical and policy implications of these findings are discussed.

Original languageEnglish
Pages (from-to)1-54
Number of pages54
JournalAmerican Journal of Comparative Law
Volume68
Issue number1
DOIs
StatePublished - 29 Aug 2020
Externally publishedYes

Bibliographical note

Publisher Copyright:
© 2020 The Author(s) [2020]. Published by Oxford University Press on behalf of the American Society of Comparative Law. All rights reserved.

Funding

* Dr. Leon Anidjar is an Adjunct Lecturer, Ori Katz is a doctoral student and a Research Fellow, and Eyal Zamir is Augusto Levi Professor of Commercial Law at the Faculty of Law, Hebrew University of Jerusalem. Order of authorship was determined alphabetically. The Article is based in part on chapters from Leon Anidjar’s doctoral dissertation, written under the supervision of Eyal Zamir. We thank Yonathan Arbel, Netta Barak-Corren, Oren Bar-Gill, Christoph Engel, Meirav Furth, Yehonatan Givati, David Gliksberg, David Hoffman, Osnat Jacobi, Yotam Kaplan, Gregory Klass, Russell Korobkin, Tamar Kricheli-Katz, Henrik Lando, Adi Leibovitch, Barak Medina, and Keren Weinshall, as well as the participants of the annual conference on Empirical Legal Studies in Europe (Leuven), the annual conference of the European Association of Law and Economics (Milan), the Annual International Conference on Contracts (New Orleans), the annual Conferences of the Israeli Association of Private Law (Herzliya) and the Israeli Association of Law and Economics (Jerusalem), the Comparative Supreme Court Decision Making Workshop (Jerusalem), the Obligations Discussion Group meeting (Oxford); the faculty seminar at the Hebrew University, and the colloquium at the Center for Transnational Legal Studies (London) for invaluable comments on earlier drafts. We also thank Ron Factor and Moses Shayo for fruitful discussions, and Roi Yair for excellent research assistance. This study was supported by the I-CORE Program of the Planning and Budgeting Committee and the Israel Science Foundations (Grant No. 1821/12). † http://dx.doi/org/10.1093/ajcl/avaa006 © The Author(s) [2020]. Published by Oxford University Press on behalf of the American Society of Comparative Law. All rights reserved. For permissions, please e-mail: [email protected].

FundersFunder number
Israel Science Foundation1821/12
Planning and Budgeting Committee of the Council for Higher Education of Israel

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