1 25 L.S.I. 11, hereinafter “Remedies Law”. The full text of the law is annexed to Prof. Shalev's article: Shalev, G., “Remedies on Anticipatory Breach” (1973) 8 Is. L.R. 123Google Scholar. For general comments on the law's provisions, see also Friedmann, D., “Remedies for Breach of Contracts” (1975) 1 T.A. U. Stud. L. 170Google Scholar.

2 As provides sec. 25(a) of the Contracts (General Part) Law, 1973 (27 L.S.I. 117) hereinafter “General Contracts Law”. The full text of the law is annexed to Prof.Shalev's, G. “General Comments on Contracts (General Part) Law, 1973” (1974) 9 Is.L.R. 274Google Scholar.

3 Sec. 26 of the General Contracts Law.

4 On the rules relating to the construction and supplement of contracts, see generally Shalev, G., Contents of Contract, Contracts (General Part) Law, 1973, Chap. 3, secs. 23-33Google Scholar, in Commentary on Laws Relating to Contracts, Tedeschi, G., ed. (Jerusalem, 1988, in Hebrew) 38–85Google Scholar.

5 See, e.g., Norrington v. Wright, 115 US 188 (1885) (slight deviations from schedules in an installment sale); Filley v. Pope, 115 US 213 (1885) (shipping goods from a different port than the one stipulated in the contract).

6 On altruistic arguments in contract law, see Kennedy, D., “Form and Substance in Private Law Adjudication” (1976) 89 Harv. L.R. 1685CrossRefGoogle Scholar.

7 For a modern elaboration of the will theory of contracts, see Fried, C., Contract as Promise (Cambridge, MA, 1981)Google Scholar.

8 Ibid., at 118-125.

9 Ibid., at 123. See also part II B (2) infra.

10 See also part II C (2) infra.

11 Sale Law, 1968 (22 L.S.I. 107); Hire and Loan Law, 1971 (25 L.S.I. 152). The only provision which may be perceived as dealing with this issue is sec. 7(a) of the Hire and Loan Law, 1971. This section provides: “The lessor shall, within a reasonable time after receiving a demand to this effect from the lessee, repair any such defect in the thing hired […] as defeats or substantially limits the use of the thing hired[…]”. The provision distinguishes defects which substantially limit the use of the property from defects limiting its use to a lesser extent. However, this distinction is not directly related to the problem of small or trivial deviations from the content of the contract. It does not deal with the conformity of the thing hired to its promised qualities (a subject dealt with in sec. 6 of the Law), but only determines the scope of the lessor's duty to repair the properly during the tenancy. The mere existence of a defect that substantially limits the use of the property does not constitute a breach. Only if the lessor does not repair such defects, his omission will be considered a breach. In other words, the distinction made in this provision does not refer to the fulfilment or breach of the obligation, but rather to a previous stage, that is, to the very existence and extent of the repair obligation.

12 On such provisions in foreign legislations, see n. 42 and text accompanies it, infra.

12a See, e.g., The Central Company for Housing & Construction Ltd. v. Fink (1990) 44(i) P.D. 226, at 228; Datalab Management Pty. Ltd. v. Pollack International Ltd. (1989) 43(ii) P.D. 309, at 311.

13 27 L.S.I. 213; Sale of Flats (Form of Specification) Order, 1974 (K.T., p. 583).

14 See Jerusalem Hotel's Associates v.Taik (1986) 40(iii) P.D. 169, at 199, per Shamgar P. (in obiter dictum). The President expressed his readiness to allow for slight modifications of the contract, inasmuch as they fall into line with the parties' intention (inferred from the contract and the circumstances) and with the requirements of good faith. Although the President referred to the cy pres performance doctrine (to be discussed in part III infra) and not to the possibility of trivial deviations from the content of agreement in general, his statement is as relevant and appropriate in the present context as well. See also Yadin, U., Contracts (Remedies for Breach of Contract) Law, 5731-1970, in Commentary on Laws Relating to Contracts, Tedeschi, G., ed. (Jerusalem, 2nd ed., 1979, in Hebrew) 52Google Scholar.

15 The Jewish Agency v. Elwin (1960) 14(i) P.D. 584, at 585.

16 Compare Fried, supra n. 7, at 123, and the text at supra n. 7.

17 On ULIS, see generally Honnold, J. O., “The 1964 Hague Convention and Uniform Laws on the International Sale of Goods” (1964) 13 Am. J. Comp. L. 451CrossRefGoogle Scholar; Eorsi, G., “The Hague Conventions of 1964 and the International Sale of Goods”, in Acta Juridica Academiae Scientiarum Hungarica, (1969) vol. 11, p. 321Google Scholar. On the Vienna Convention and on the preparatory work that preceded it, see generally, Symposium: “Unification of International Trade Law: UNCITRAL's First Decade”, in (1979) 27 Am. J. Comp. L. 201–352Google Scholar; Honnold, J. O., Uniform Law for International Sales under the 1980 United Nations Convention (Deventer, The Netherlands, 1982)Google Scholar; Galston, N. M. & Smit, H. (eds.), International Sales: The United Nations Convention on Contracts for the International Sale of Goods (New York, 1984)Google Scholar; Bianca, C.M. & Bonell, M. J. (eds.), Commentary on the International Sales Law — The 1980 Vienna Sales Convention (Milan, 1987)Google Scholar.

18 See “Report of the Secretary-General: Obligations of the Seller in an International Sale of Goods” (A/CN.9/WG.2/WP.16), in UNCITRAL Yearbook, Vol. IV (UN, New York, 1973) 36, n. 8 at para. 61, p. 44Google Scholar.

19 On this provision, see Tune, A., “Commentary on the Hague Conventions of the 1st of July 1964 on International Sale of Goods and the Formation of the Contract of Sale”, in Diplomatic Conference on the Unification of Law Governing the International Sale of Goods, The Hague, 2-25 April 1964 (The Hague, 1966) 357, 374Google Scholar. On the corresponding provision in the Draft Uniform Law of 1939 (sec. 37, final sentence), see Draft of a Uniform Law on International Sales of Goods (Corporal Movables) and Report (Rome, revised ed., 1951) 23-24, 76–77Google Scholar.

20 See the Report, supra n. 18, paras. 61 and 138-140, at pp. 44, 55-56.

21 P. Schlechtriem, “The Seller's Obligations under the United Nations Convention on Contracts for the International Sale of Goods”, in Galston & Smit, supra n. 17, sec. 6.03, at p. 6-22.

22 On the great influence of ULIS on the Israeli new contract legislation, see Friedmann, D., “Independent Development of Israeli Law” (1975) 10 Is. L.R. 515, at 542–543Google Scholar; Yadin, U., “The Use of Comparative Law by the Legislator”, in Israeli Reports to the XI International Congress of Comparative Law, Goldstein, S., ed. (Jerusalem, 1982) 10, at 13Google Scholar.

23 See Yadin, supra n. 14, at 79. Prof. Yadin explains that the criterion of justice may temper the sweeping character of subsec. (b). According to its first part, any breach, even the most trivial and marginal, entitles the injured party to rescind the contract if only an extension of time for performance is given. The proviso of justice precludes rescission in such cases. See also Katzir, D., Remedies for Breach of Contract (Haifa, 1991, in Hebrew) 57–59Google Scholar.

24 The remedy of damages is dealt with in secs. 10-16 of the Remedies Law. See generally Yadin, supra n. 14, at 93-144; Shalev, supra n. 1, at 127-129. The remedy of proportional reduction of the consideration is regulated in specific contracts laws: sec. 28 of the Sale Law, 1968; sec. 9(a)(2) of the Hire and Loan Law, 1971; sec. 4(a)(2) of the Contract for Services Law, 1974 (28 L.S.I. 115). See generally Zamir, E., “The Failure of the Remedy of Reduction in Israeli Law — Causes and Lessons” (1989) 23 Is. L.R. 469Google Scholar.

25 See the Report, supra n. 18, para. 138, at 55.

26 The remedy of enforcement is regulated in secs. 3-5 of the Remedies Law. See generally Yadin, supra n. 14, at 49-66; Katzir, supra n. 23, at 283-615; Shalev, G., The Law of Contract (Jerusalem, 1990, in Hebrew) 525–545Google Scholar; Shalev, supra n. 1, at 127.

27 See also the text at n. 10 supra; part II C (2) infra.

28 The use of general standards to restrain egotistic use of remedies may be perceived as an illustration of the linkage between form and substance suggested by Kennedy, supra n. 6.

29 Sec. 43 of the General Contracts Law deals with “Postponement of performance”. In paragraph (a) it provides:

The date for the fulfilment of the obligation is postponed —

hellip;

(2) if its fulfilment is conditional upon the prior fulfilment of an obligation of the creditor — until such obligation has been fulfilled;

(3) if the parties must fulfil their obligations pari passu — so long as the creditor is not prepared to fulfil the obligation imposed on him.

On the law of concurrent obligations under Israeli law, see generally Tedeschi, G., “Concurrent Conditions” (1987) 37 HaPraklit 293Google Scholar.

30 Tedeschi, ibid., at 304-305; Zamir, E., Sale Law, 1968, in Commentary on Laws Relating to Contracts, Tedeschi, G., ed. (Jerusalem, 1987, in Hebrew) sec. 500, at pp. 510–512Google Scholar.

31 See Fransworth, E. A., Contracts (Boston and Toronto, 2nd ed., 1990) 616Google Scholaret seq.; Calamari, J. D. & Perillo, J. M., The Law of Contracts (St. Paul, Minn., 3rd ed., 1987) sec. 11-18, at 458–464Google Scholar; Cheshire, Fifoot & Furmston's Law of Contract (London, 11th ed., 1986) 517–519Google Scholar.

32 See Restatement of the Law, Second, Contracts, secs. 237, 241. Sec. 237 states that in synallgamatic contracts, every party's obligation to perform his remaining duties is conditioned on the non-occurence of “uncured material failure” of the other party's duties. Sec. 241 enumerates five kinds of circumstances to be taken into account in determining “whether a failure to render or to offer performance is material”. Inter alia, one should consider the extent to which the breach deprives the injured party of the benefit he reasonably expected; the extent to which the injured party can be adequately compensated for the loss of the expected benefit, the extent to which the party in breach will suffer forfeiture, and so on.

33 Mitsubishi Goshi Kaisha v. J. Aron & Co., Inc. 16 F2d 185, 186 (1926). On this rule see also Farnsworth, supra n. 31, at 620-622; White, J. J. & Summers, R. S., Uniform Commercial Code (St. Paul, Minn., 3rd ed., 1988) sec. 8-3, at 354–368Google Scholar; Calamari & Perillo, supra n. 31, sec. 11-20, at 467-473.

34 See, for example, the cases cited in n. 5 supra.

35 For a criticism on the rule, see, e.g., Honnold, J., “Buyer's Right of Rejection” (1949) 97 U. Pa. L.R. 457CrossRefGoogle Scholar. The central provision of the UCC, in which this rule is embodied, is sec. 2-601. This section enumerates the buyer's remedies in cases where “the goods or the tender of delivery fail in any respect to conform to the contract”. Inter alia, the buyer is entitled in such a case “to reject the whole”.

36 For a survey of the provisions limiting the effect of the rule under the UCC, see Peters, E. A., “Remedies for Breach of Contract relating to the Sale of Goods under the Uniform Commercial Code: A Roadmap for Article Two” (1963) 73 Yale L.J. 197, at 206–216CrossRefGoogle Scholar; Calamari & Perillo, supra n. 31, sec. 11-20, at 468-473; Note, “Uniform Commercial Code — Sales — Sections 2-508 and 2-608 — Limitations on the Perfect-Tender Rule” (1970) 69 Mich. L.R. 130CrossRefGoogle Scholar; Honnold, ibid., (regarding a draft of the Code).

37 Thus, White and Summers (supra n. 33, at 357) conclude: “We conclude, and the cases decided to date suggest, that the foregoing changes have so eroded the perfect tender rule that relatively little is left of it; the law would be little changed if 2-601 gave the right to reject only upon ‘substantial’ nonconformity”. See also Priest, G.L., “Breach and Remedy for the Tender of Nonconforming Goods under the Uniform Commercial Code: An Economic Approach” (1978) 91 Harv. L.R. 960CrossRefGoogle Scholar.

38 In Jerusalem Hotel's Associates v. Taik (supra n. 14, at 200-201), the appellants tried to rely on this doctrine. The court referred to the question as a matter of construction of the contract, and rejected it on a factual level. The court did not consider the preliminary question, whether that doctrine applies in the Israeli system at all.

39 Compare the Report, supra n. 18, paras. 61 and 138-140, at 44, 55-56.

40 See part II A. supra.

41 Another example may be found in the American case Intermeat, Inc. v. American Poultry Inc. (23 UCC Rep. 925) of 1978. In that case, a buyer refused to accept a delivery of meat, on the ground that under the contract the meat should have been marked “Tasmeats”, whereas the supplied meat was marked “Richardson Production”. When it was proved that Richardson Production was a parent company of Tasmeat, and that the quality of the meat was exactly as required, the court held that there had been no legal ground for the buyer's rejection. See also Filley v. Pope, supra n. 5.

42 The two sections of the BGB mentioned in the text are almost identically drafted. The first one provides: “An insignificant diminution in value or fitness is not taken into consideration”. Sec. 932(2) of the Austrian Code states that “An insignificant decrease of value is of no moment”. Perhaps an additional example is to be found in sec. 2-504 of the American UCC. That section deals with the seller's obligations concerning shipment of the goods (making a carriage contract, delivery to the carrier, procurement of documents and notification to the buyer). The last sentence of the section provides: “Failure to notify the buyer under paragraph (c) or to make a proper contract under paragraph (a) is a ground for rejection only if material delay or loss ensues”. However, the relevance of this section in the present context is doubtful, since it seems that the proviso operates at the level of remedies only. On this provision see generally Anderson, R. A., Uniform Commercial Code (Rochester and San Francisco, 3rd ed., 1983) Vol. 3, pp. 637–644Google Scholar.

43 On those characteristics of Israeli new civil legislation see, e.g., Zeltner, W. Z., “Reflections on the Contracts (General Part) Law, 5733-1973” (1975) 1 T.A. Univ. Stud. L. 153, at 168Google Scholar (“The legislative technique of our legislator is that of weaving a net with broad loops. He does not attempt to solve every problem that can be foreseen, but makes do with furnishing guidelines.”); Friedmann, supra n. 22, at 550 et seq. See also Tedeschi, G., “About the Gift Law” (1969) 1 Mishpatim 639Google Scholar; Mautner, M., “Rules and Standards in the New Civil Legislation” (1987) 17 Mishpatim 321Google Scholar.

44 See part III infra.

45 See Feller, S. Z., Elements of Criminal Law, Vol. 1 (Jerusalem, 1984, in Hebrew) secs. 92-97, at pp. 57–62Google Scholar. The author discusses this principle as one of eleven basic principles of criminal law.

46 Regarding tax exemption for incomes which are so low, that the cost of collecting the tax applying to them is likely to be higher than the amount of the tax itself, see Rafael, A. & Efrati, D., Income Tax Law, Vol. 1 (Tel Aviv, 2nd ed., 1987, in Hebrew) 208Google Scholar.

47 See Tedeschi, G. (ed.), Barak, A., Cheshin, M. & Englard, I., The Law of Civil Wrongs — The General Part (Jerusalem, 2nd ed., 1976, in Hebrew) sec. 194, at pp. 338–839Google Scholar. As was mentioned, these are not the only fields in which the principle applies. With regard to licensing of trivial works under the planning law, see Revital, S., Planning & Building Law (Tel-Aviv, 8th ed., 1991, in Hebrew) 141–142Google Scholar. Regarding the tendency of the court of appeal not to intervene with calculations made by the first instance, see (as one out of many examples), Gurion v. Gabriel (1985) 39(iv) P.D. 266, at 274 et seq., and American case-law reviewed in a comprehensive annotation published in Annot, 44 A.L.R. 168, at 175 et seq.

48 See, e.g., sec. 4 of the Civil Wrongs Ordinance [New Version], 1968 (“Trivial act”) 2 L.S.I. [N.V.] 5; sec. 42 of the Income Tax Ordinance [New Version], 1 L.S.I. [N.V.] 145 (as was added in an amendment published in 19 L.S.I. 24, and as was re-numbered in an amendment published in 29 L.S.I. 215).

49 See sec. 50 of the Criminal Code Bill — Preliminary and General Parts, published in (1984) 14 Mishpatim 129Google Scholar.

50 See the cases referred to in Feller, supra n. 45, and in Revital, supra n. 47. See also cases referred to in n. 52 infra.

51 See secs. 6-8 of the Insurance Contract Law, 1981 (35 L.S.I. 91), and esp. sec. 8(2), part of which was quoted in the text.

52 See, e.g., Edrey v. Gedalyahu (1982) 36(iv) P.D. 281, at 288, 293; Netanya Municipality v. N.Z.V. Netanya (1986) 40(iii) P.D. 29, at 52.

53 For a review of American cases, see Annotation referred to in n. 47, supra, at 190.

54 Zamir, supra n. 30, sec. 443, at p. 450.

55 Shalev, supra n. 2, at 278-280; Zeltner, supra n. 43; Y. Sussman, , “A Forecast of Problems in the Law of Contracts” (1976) 2 T. A. Univ. Stud. L. 17Google Scholar; Shalev, G. & Herman, S., “A Source Study of Israel's Contract Codification” (1975) 35 La. L.R. 1091, at 1097–1099Google Scholar; Public Transportation Services Beersheba v. The Labour Court (1981) 35(i) P.D. 828, at 834-837.

56 On sec. 12 of the General Contracts Law, see Shalev, G., “Good Faith in Negotiations” (1976) 7 Mishpatim 118Google Scholar; Rabello, A.M., The Law of Obligations — Selected Topics (Jerusalem, 1977, in Hebrew) 169et seq.Google Scholar; N. Cohen, “Contract Rules and Good Faith in Bargaining: Formalism v. Principles of Justice” (1986) 37 HaPraklit 13. Even before the enactment of the General Contracts Law, similar provisions concerning good faith in the performance of contracts were provided in previous contracts laws: sec. 6 of the Sale Law, 1968, sec. 4 of Hire and Loan Law, 1971. On sec. 6 of the Sale Law, see Zamir, supra n. 30, secs. 153-169, at pp. 159-175. These provisions will probably be deleted when the process of unification of the separate laws into a complete code will be accomplished.

57 See survey of the case-law in Pilpel, D., “Section 39 of the Contracts Law (General Part), 5733-1973 and the Connection to German Law” (1984) 36 HaPraklit 53, at 59–63Google Scholar; Amrani v. Supreme Rabbinical Court (1983) 37(ii) P.D. 1, at 9-10.

58 See, e.g., Public Transportation Services Beersheba v. The Labour Court, supra n. 55 (imposing a burden to give notice, as a prerequisite for the lawfulness of a strike); Weizman v. Abramson (1979) 33(iii) P.D. 295 (prohibiting a seller of a business, including its good will, to compete with the buyer). See also Barak, A., Judicial Discretion (Tel Aviv, 1987, in Hebrew) 475–478Google Scholar.

59 See, e.g., Public Transportation Services Beersheba v. The Labour Court, supra n. 55, at 838-840; Shikun Ovdim v. Zafnik (1983) 37(i) P.D. 579. See also Deutsch, S., “Section 12 of the Contracts Law: Is It a Remedy for Every Problem?” (1985) 4 Mehkarei Mishpat 39Google Scholar.

60 Thus, for example, in Rot v. Yeshupeh ((1979) 33(i) P.D. 617), the court prevented sellers of an apartment from relying on a contractual exemption-clause, because such a reliance would have been considered as an exercise of a right in bad faith. On the tempering effect of the good faith principle, see also Shalev, supra n. 56, at 120.

61 Some of the judgments base this conclusion on the argument that remedial rights are rights arising out of a contract, in the words of sec. 39. Others relied in this context on sec. 61(b) of the General Contracts Law, which mutatis mutandis applies the provisions of the law to legal acts other than contracts. See Golan v. Farkash (1980) 34(i) P.D. 813, at 821 (and see also the dissenting opinion expressed by Ben Porath J., ibid., at 823); Public Transportation Services Beersheba v. The Labour Court, supra n. 55, at 836; Pomerantz v. K.D.S. Building and Investments (1984) 38(ii) P.D. 813, at 819; Yadin, supra n. 14, sec. 17, at 46-47; Katzir, supra n. 23, at 58.

62 See text at nn. 31-32 supra.

63 Zeltner, Z., Contract Law of the State of Israel, Part 1 (Tel-Aviv, 1974, in Hebrew) 221–222Google Scholar; Zamir, supra n. 30, at 174-175.

64 See part II A. supra.

65 This question is part of the general, extensively debated, issue of “efficient breach”. See e.g., Posner, R.A., Economic Analysis of Law (Boston and Toronto, 3rd ed., 1986) 105et seq.Google Scholar; Carter, R. & Ulen, T., Law and Economics (Glenview, Ill., 1988) 289–292Google Scholar; Friedmann, D., “The Efficient Breach Fallacy” (1989) 18 J. Legal Studies 1CrossRefGoogle Scholar.

66 If the promisor can in fact be so precise as to very slightly deviate from the agreed performance, this of course weakens the claim that achieving the exact result is too expensive to monitor.

67 Supra n. 51. Sec. 8(2) provides:

“In any of the following cases, the insurer is not entitled to the remedies mentioned in section 7 unless the reply which was not complete and straightforward was given with fraudulent intent: […] (2) the fact in respect of which a reply which was not complete and straightforward was given […] did not affect its [the event insured against] occurrence or the liability of the insurer or the extent thereof”.

68 Under this provision, the buyer is deprived of the right to rescind the contract where the defect in the property is small, unless the seller acted fraudulently.

69 As mentioned in n. 32 supra, sec. 241 of the Restatement enumerates various circumstances to be considered when determining whether any breach is to be regarded as material. Para, (e) provides that one should take into consideration “the extent to which the behavior of the party failing to perform or to offer to perform comports with standards of good faith and fair dealing”.

See also Summers, R.S., “‘Good Faith’ in General Contract Law and the Sales Provisions of the Uniform Commercial Code” (1968) 54 Va. L.R. 195, at 237–238Google Scholar. However, it should be noted that in recent years there has been a tendency in American law to derogate from the importance of the wilfulness criterion in this context. See Farnsworth, supra n. 31, at 619-620; Calamari & Perillo, supra n. 31, at 463.

70 The issues of impossibility and frustration are regulated in Israeli legislation in sec. 18 of the Remedies Law. According to that provision, in circumstances of impossibility, the injured party is deprived of the remedies of enforcement and expectancy damages. See Yadin, supra n. 14, at 150-162; Tedeschi, G., “Frustration of Purpose” (1975) 10 Is. L.R. 1Google Scholar.

71 See part II A. supra.

72 Tedeschi, supra n. 70, at 16-22. See also n. 87, infra, and text at that note.

73 See Chitty on Contracts (London, 26th ed., 1989) Vol. 1: General Principles, secs. 1892-1893, at pp. 1227–1230Google Scholar; Halsbury's Laws of England (London, 4th ed., 1983) Vol. 44: Specific Performance, para. 548, at p. 374Google Scholar; Doukhan-Landau, L., Equitable Rights to Land and the Remedy of Specific Performance of Contracts for the Sale of Land (Jerusalem, 1968) 130Google Scholar.

74 Per Silberg J. in Frant v. Yehudai (1950) 4 P.D. 375, at 387.

75 Chitty, supra n. 73. See also Shalit v. Société anonyme belge d'éxploitation de la navigation aerienne (1979) 33(ii) P.D. 477, at 479.

76 On sec. 2-614 of the UCC, see Anderson, supra n. 42, vol. 4, at 258-264.

77 On Art. 46 and its great influence on Israeli legal system, see generally Tedeschi, G., “Lacunae in the Law and Art. 46 of the Palestine Order-in-Council, 1922”, in Studies in Israel Law (Jerusalem, 1960) 166Google Scholar; Friedmann, D., “Infusion of the Common Law into the Legal System of Israel” (1975) 10 Is. L.R. 324, at 359Google Scholaret seq.

78 The repeal was made in the Foundations of Law Act, 1980 (34 L.S.I. 181).

79 Sharaby v. Omensky (1953) 7 P.D. 20, at 31. See also Aharonson v. Friedman (1963) 17 P.D. 2488, at 2492; Dukhan-Landau, supra n. 73, at 131.

80 Shalit v. Société anonyme belge d'éxploitation de la navigation aerienne, supra n. 75. For a review of additional cases, see Katzir, supra n. 23, at 447-450.

81 Eshed v. Luver (1979) 33(i) P.D. 13, at 19-20.

82 Shmueli v. Levit (1982) 36(ii) P.D. 45, at 49-50.

83 Israel Dano Company v. Horshfeld (1989) 43(i) P.D. 160, at 164-165.

84 Shamgar P. pointed out that “also after the beginning of the new Israeli legislation in the sphere of contract law, abrogating the reference to Article 46, the courts continued to turn to the doctrine of cy pres performance” (supra n. 14, ibid.). In this last matter, Shamgar P. referred to the Eshed case (supra n. 81), and to the case of Boyer v. Shikun Ovdim (1984) 38(ii) P.D. 561. With due respect, Shamgar P.'s reliance on the Eshed and Boyer judgments is not very clear. In the first judgment the problem was not resolved and it was expressly said that it requires further study. The other judgment dealt with a contract concluded in 1943. For a similar problematic reliance on the Eshed judgment, see Adras Construction Co. Ltd. v. Harlow & Jones G.M.B.H. (1988) 42(i) P.D. 221, at 256 (per Ben-Porath J., in obiter).

85 See Barak, A., “The ‘Autarky of the Law’ Provision and the Problem of Lacuna in New Israeli Legislation” (1975) 5 Mishpatim 99Google Scholar; Barak, A., “The Independence of the New Civil Codification: Risks and Prospects” (1976) 7 Mishpatim 15, esp. at 25–26Google Scholar. It seems that the considerations indicated in this context gain greater force after the enactment of the Foundations of Law Act, 1980.

86 See nn. 14 and 84 supra, and the accompanying text.

87 References to the provisions on construction are to be found both in Shamgar's judgment in Jerusalem Hotel's Associates v. Taik (supra n. 14, ibid.) and in Yadin's commentary (supra n. 14, ibid.). See also Katzir, supra n. 23, at 452-453; Weinstein v. Goren (1989) 43(i) P.D. 837, at 844-845. As was indicated with regard to the de minimis principle, there might be cases in which it is possible to base the modification of the obligation on the parties' intention, but in many other cases this would have no real basis. In a similar context (attempts to base rules originated in the good faith principle on implied intention of the parties), Prof. Summers stated (supra n. 69, at 223): “[I]t is almost always better to recognize something for what it is rather than to fictionalize it. And surely, how a doctrine is conceptualized can affect the outcome of cases. For example, it seems likely that a judge who thinks in terms of implied provisions will be less willing to enforce duties of good faith than the judge who thinks explicitly in terms of such duties […]”.

88 Sec. 3(1) of the Law provides: “The injured party is entitled to enforcement of the contract unless one of the following obtains:(1) the contract is impossible of performance”;

Sec. 4 of the Law provides: “The Court may make enforcement of the contract conditional upon fulfilment of the obligations of the injured party or upon assurance of their fulfilment or upon other conditions necessarily resulting from the contract in the circumstances of the case”.

Suggestions to rely on sec. 4 in this regard were made by Zeltner and Shalev. See Zeltner, supra n. 63, at 413; G. Shalev, supra n. 26, at 540. On secs. 3(1) and 4 of the Remedies Law, see generally, Yadin, supra n. 14, at 54-56, 61-65; Katzir, supra n. 23, at 423-455, 523-543; Shalev, ibid., at 531, 539-545.

89 See references in n. 61, supra.

90 Compare Yadin, supra n. 14, secs. 20 and 80, at pp. 52-53 and 159.

91 Tedeschi, supra n. 70, at 50. It seems that Prof. Yadin (supra n. 14, ibid.), Ben-Porath J. (in Eshed v. Luver, supra n. 81, ibid.), Shamgar P. (in Jerusalem Hotel's Associates v. Taik, supra n. 14, at 198-199) and Dorner J. (in Friedman v. Superstein, 1989(i) P.M. 191, at 194-195) all tend to connect the cy pres performance doctrine with the application of good faith principle to the contract performance. Conversely, it seems that Prof. Shalev (supra n. 26, ibid.) tends to connect this doctrine with the application of good faith to remedies for breach of contract. Friedmann and Cohen do not express their opinion on this question. See Friedmann, D. & Cohen, N., Contracts, Vol. 1 (Tel Aviv, 1991, in Hebrew) 464–465Google Scholar.

92 Compare Chitty, supra n. 73, and part II C.(3) supra.

93 Thus, in the Dano case (supra n. 83) the injured party refused to pay the remuneration, asserting that the other party had failed to perform his counter-obligation. The party in breach tried to rely on the cy pres doctrine, claiming that he was entitled to the remuneration as he performed his obligation at least approximately. However, as mentioned above, this claim was rejected by the court on a factual basis.

94 On the last two claims, see also Zamir, supra n. 30, sec. 157, at p. 164, and sec. 168, at pp. 174-175.