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Intercultural Human Rights Law Review

First Page

329

Abstract

The article proceeds as follows: Part II explores various aspects of the social transformation of private law in Israel, beginning with a discussion about the theoretical and practical roles of contract law-the "classic" and distinctive realm of "private" and voluntary law. This area leads to the legal assimilation of social responsibility and consideration for the expectations of others, promotes the development of a holistic approach to law, and exposes its social and public purpose. Consideration for the justified expectations of the other and for the fundamental principles of the legal system, even within the context of purely voluntary interactions, emphasizes both the "publicization" of contract law and the "privatization" of fundamental social principles into this interaction. This two-way relationship between the public and the private, which subverts the anachronistic distinction between "public" and "private" law, reflects the influence and the quasipublic (or indeed public) character of all social "actors," and sharpens the social context of all human interactions. In brief, contract law is extremely well suited to provide means to assimilate the "social" revolution into law generally. This is mainly because of the characteristics of contract law, but it is also due to its close ties to every individual and to all social components of everyday life, as well as its association with comprehensive and diversified social values." The main purpose of contract law is to enable individuals, as "social animals," to create various kinds of relationships, to realize their autonomy, and to provide most of their needs voluntarily through coordination, cooperation, and mutual concessions. In this sense, it is evident that responsibility and freedom are not mutually contradictory, but rather draw on each other. Recognizing the power and responsibility of individuals in the context of interpersonal relationships improves the protection of basic liberties and confirms the inextricable role of all components of the legal system, not only of government authorities, in the structuring of a freedom-seeking society. After developing the claim justifying the inherent social standing of contract law, Part III explains the contractual processes and means through which the ideas of social responsibility and solidarity are assimilated into private law. The gist of these processes and means is the use of the "good faith" and "public policy" principles in contract law. The good faith principle, in particular, has been widely accepted and applied in Israel. The principle has been included in the second section of a proposed codification of civil law, prominently placed in the opening chapter dealing with "basic principles." Invocation of the good faith principle continues to be a powerful means of "importing" social responsibility and proper interpersonal behavior into private law, as well as of strengthening the social context of many different human interactions. The principle has been defined as "establishing an objective criterion for the fair behavior of rights holders seeking to realize their personal self-interest against the background of the general social interest, while also taking the interest of the other into account. Even before the enactment of the Israeli Basic Laws dealing with human rights in the early nineties,' good faith was recognized as a mandatory objective principle that sets standards for proper "inter-contractual" or "interpersonal" relationships.' Good faith establishes "a minimal level of decent behavior between individuals that reflects what is perceived as proper in our society...reflects a suitable balance between conflicting human rights, and is incumbent "on every person in Israel performing legal actions. Many other instances of this trend could no doubt still emerge. This approach has strengthened the social and normative standing of every contractual negotiation and interaction, as well as every non-contractual legal action. The good faith principle's grounding in social concerns, its formulation as a general standard, its mandatory and normative standing that calls for taking into account the other's justified expectations, and its broad implementation - have all turned it into the most essential element. This has set the stage for the absorption of other social and public principles (such as human rights) into law in general, and contract law in particular. The good faith principle thus became a significant tool for mediating between the "private" view of legal interactions and the view that legal interactions are inextricably bound with social and public considerations, long before the explicit approach dealing with the "percolation" of public law into private law came into being. Part IV of the article focuses on the birth pangs of social responsibility as it is developing in contract law in Israel. The process appears to have gone too far in diluting the a priori social goals of contract law, and lacks a consistent, coherent backbone. Accordingly, a proposal will be formulated to trace the suitable scope of social responsibility imposed by contract law according to the considerations detailed in this section.

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