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Unjust Enrichment in Israel Law
Published online by Cambridge University Press: 12 February 2016
Extract
The purpose of this paper is to collect the cases in which the principle of doctrine of unjust enrichment has been explicitly employed by the Israel courts, and to subject them to descriptive and part critical analysis. In so doing it will be possible to indicate the sources and the scope of the principle in its various applications.
One may say immediately that neither the term “unjust enrichment” nor the various categories of which it is or may be the underlying or explanatory principle, such as “quasi-contract”, “constructive trust” or “equitable lien”, figure almost at all in the reports before the establishment of the State in 1948. That is not to say of course that during the period of the Mandate the courts provided no restitutionary remedies in the appropriate circumstances, but it is difficult to gather from the various instances in which rules of a restitutionary nature were applied any independent unifying principle, as some would have it, which might lead to the recognition of a generalized right, or, as others assert, any basic principle that would provide a link connecting the cases and solutions in this area of the law or the pattern into which these might be logically fitted.
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References
1 See Goff, and Jones, , The Law of Restitution (1966) 13 (hereafter cited as Goff and Jones)Google Scholar.
2 See Stoljar, , The Law of Quasi Contract (1964) 1–5 (hereafter cited as Stoljar)Google Scholar. Since Goff and Jones and Stoljar contain the most recent discussions of the matter in English law and conveniently represent different approaches—the first advocating a generalized unjust enrichment doctrine and the second a proprietal approach— they will be cited where necessary as authority for a statement of English law with-out referring to the supporting decisions.
3 Goff and Jones, 11; Stoljar, 15.
4 See Ginossar, S., “Israel Law: Components and Trends” (1966) 1 Is.L.R. 380Google Scholar.
5 Ibid. 383. It may be observed that in contrast to German law where unjust enrichment is dealt with in the BGB, in French law the subject has been elaborated almost entirely by judicial decision, cf. Dawson, , Unjust Enrichment (1951) 92–107Google Scholar.
6 Per Cheshin J. in Mayor of Tel Aviv v. Aaronovitz (1956) 10 P.D. 1835, 1837; cf. Ginossar, op.cit. passim, and Tedeschi, G., Studies in Israel Law (1960) 166 ffGoogle Scholar.
7 See e.g. the treatment of compulsion in the Aaronovitz case, infra, and in Stoljar, , 50–55Google Scholar.
8 For a general survey, see Dawson, op. cit. 9 ff.; Goff and Jones, 5–11; Stoljar, 9–15.
9 Stoljar, 15; cf. Goff and Jones, 12–13; and Dawson, op. cit. 16–19.
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11 Eliash v. Director of Lands (1920–33) 1 P.L.R. 735.
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13 Dawson, op.cit. 113–14.
14 Goff and Jones, 12–13; Stoljar, 3
15 Goff and Jones, 13–14.
16 Stoljar, 17–18.
17 Goff and Jones, 26–29.
18 The judgment in the District Court is reported in (1946) S.C.D.C. 824.
10 Incidentally, throughout the judgments he and others use almost interchangeably the terms “unjust enrichment” and “quasi-contract” in addition to “restitution”. I deal with this aspect of the problem below.
20 Cited in Supergas Ltd. v. Mizrachi (1958) 12 P.D. 398.
21 “Quasi-contracts under Israel Law” (1955) 11 HaPraklit 289 (in Hebrew)Google Scholar.
22 (1952) 8 HaPraklit 314Google Scholar.
23 Cf. Stoljar, 160–61.
24 Cf. Goff and Jones, 146–47.
25 Confirmed on appeal in [1957] 2 Q.B. 154.
26 Cf. Goff and Jones, 219–20.
27 Even in English law it is now strictly confined to members of the immediate family and servants, see I.R.C. v. Hambrook [1956] 3 All E.R. 338, and the still more recent Irish decision in A.G. v. Ryan [1965] I.R. 642.
28 It is interesting to note the very similar reasoning, and with the same results, in the judgment last cited.
29 “Unjust Enrichment” (1958) 14 HaPraklit 111Google Scholar.
30 Goff and Jones, 143 ff.; Stoljar, 50 ff.
31 Stoljar, 73.
32 (1944) 60 L.Q.R. 341, 352.
33 Goff and Jones, 238–39; Stoljar, 142.
34 See a note on “Permissible and Impermissible Duress” (1961) 17 HaPraklit 214–15Google Scholar.
35 In this case one judgment only was delivered on behalf of the Court by Cheshin D.P. The judgment is regarded as a leading authority: Davidov v. Tel Aviv Municipality (1962) 16 P.D. 648, 652, per Landau J.
36 See Goff and Jones, 157–58, and contrast Stoljar, 78.
37 This aspect of public constraint is treated somewhat differently in Goff and Jones, 152 ff., on analytical and not developmental lines. Stoljar, 51 ff., treats it more like the court here and observes that the modern line introduced by the Whiteley case is an erroneous departure from the older and more logical line.
38 Goff and Jones, 155.
39 See the criticism of the Whiteley case and its sequels and the treatment of the Brocklebank case in Stoljar, 63–67. According to Stoljar, 59–60, compulsion in a wide sense exists whether payment is made because one is compelled to do so or colore officii. The difference is that in the latter case, if the officer acts intra vires, nothing can be done about the payment, but if ultra vires it is recoverable because no one may retain money to which there is no provable claim. Cf. Goff and Jones, 143 note 9, and 153 note 85.
40 The judgment was given by Cheshin J. with Agranat J. merely concurring. Berinson J. found for the plaintiff on the ground of the excessive charges and felt himself free from expressing any opinion on the wider issues raised by Cheshin J.
41 Stoljar, 74, emphasizes almost exclusively the first aspect. Lord Mansfield's formulation in Moses v. Macferlan is similarly directed.
42 Cf. Goff and Jones, 160–61; Stoljar, 71.
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45 Cf. Goff and Jones, 265–66.
46 Ibid. 343–44.
47 Ibid. 346–47.
48 See Jahshan v. Zalaf (1938) A.L.R. 345.
49 Cf. Mandelman v. El Daoud (1944) A.L.R. 24, where the vendor had waived the purchaser's breach, and although asked for time to complete, had not replied.
50 Cf. Greenstein v. Wasserman (1962) 16 P.D. 1788, which confirmed the view expressed in the text.
51 In the Stockloser case the decision went against the plaintiff on the facts but the observations of Lord Somervell and Denning as to the conditions in which equity will grant relief—the penal nature of the forfeiture clause and the unconscionableness of the vendor retaining the money—have been dubbed “bold and novel and could, if accepted, have profound repercussions in this branch of English law” (Goff and Jones, 348).
52 See Goff and Jones, 4; Stoljar, 162.
53 For instance, the first example given is of a cook hired for a wedding feast. One of the bridal couple dies. The contract is cancelled.
54 Goff and Jones, 288; Stoljar, 200.
54a For an example of the former case, see Hoter Ishai v. Litvinsky (1963) 17 P.D. 1610, in which an agreement between lawyer and client as to remuneration for contentious business, unenforceable because it had not been disclosed to the court and declared by it to be fair, proper or reasonable, did not prevent an alternative claim in quantum meruit. A like case is Shimshon Palestine Portland Cement Co. Ltd. v. Ayun (1956) 10 P.D. 1767, where a quantum meruit claim remained available notwithstanding that a contract for services entered into by the managing director of a company was ultra vires his powers and not within his apparent or ostensible authority, and there-fore not enforceable against the company (the sequel to Mann v. Ayun, supra).
55 Stoljar, 19–20; cf. Goff and Jones, 61–63.
56 Cf. Goff and Jones, 76–79.
57 At 497.
58 Stoljar, 43; cf. also Lord Denning in Kiriri v. Dewani [1960[ A.C. 192, 204, cited in Goff and Jones, 81, as to the situation where the parties are not in pari delicto.
59 Goldberg, A., “Quasi-Contract in Roman and Jewish Law” (1952) 8 HaPraklit, 314Google Scholar.