According to conventional wisdom, the Contracts (Remedies for Breach of Contracts) Law of 1970 has revolutionized the status of enforced performance in Israeli law. Following the common law, until 1970 the primary remedy for breach of contract was damages, whereas specific performance was an equitable relief available in exceptional cases only. According to the 1970 Law, which follows the civil law tradition, enforced performance is the primary remedy for breach of contract, and is denied only in exceptional cases. However, there are reasons to doubt this conventional wisdom. First, given the complex arguments for and against the remedy of enforcement, it is implausible that legal systems would adopt truly opposite arrangements in this regard. Second, comparative law experts claim that legal systems that adopt conflicting points of departure in this regard largely converge in their practical solutions. Third, several taxonomic and terminological differences reflected in Israeli law narrow the gap between common law and civil law systems in this regard. Finally, various pragmatic considerations regarding the choice between remedies have a similar effect. Contrary to the extensive theoretical and comparative discussions only a few studies, in Israel or elsewhere, have examined the issues involved empirically. None of these studies has quantitatively analyzed actual court judgments.

This Article revisits the theoretical and comparative debates and describes the findings of a quantitative analysis of Israeli Supreme Court judgments concerning remedies for breach of contract during a 69-year period (1948–2016) as well as a large sample of District Court judgments of the past two decades. We hypothesized that, contrary to the prevailing belief among legislators, judges and scholars, no revolution has actually occurred regarding the resort to the remedy of enforced performance. We were surprised to find that after 1970 the resort to enforced performance has actually decreased considerably. The article examines several explanations for this result, using empirical and analytical tools, as well as the possible impact of changes in Israeli society throughout the years. We find no evidence that the Remedies Law influenced the resort to the remedy of enforced performance. However, a significant link has been found between the length of legal proceedings and the resort to enforcement remedies: the longer the proceedings, the less the tendency to claim and to award enforcement remedies. The Article discusses the limitation of the empirical investigation and the implications of the surprising findings.

Published in MISHPATIM. The full paper is available here