THE US-ISRAEL LEGAL REVIEW 2019

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98 The US-Israel Legal Review 2019
ISRAEL: LITIGATION
are subject to the court’s approval. The parties
must publicize a notice to the public with the
terms of the proposed settlement. Furthermore,
a copy of the proposed settlement must be sent to
the Attorney General, the Courts Administrator
and the relevant regulator (such as the Custodian
of Consumer Protection). These officials, as well
as any member of the represented class, and any
entity or government body that operates to further
public goals in fields relevant to the motion, may
file objections to the proposed settlement.In addition to the above procedure, the Law
also provides that the court should receive an
opinion from an expert in the fields relevant to
the motion to certify, analyzing the advantages
and disadvantages of the settlement. In practice,
the court often uses its discretion to refrain from
appointing such expert.The court will only approve the settlement if
it finds that the settlement is fair, reasonable and
proper, considering the interests of the represented
class. In the event that the settlement is reached
during the certification stage, the court must also
find that the prerequisites for certifying the motion
are fulfilled.
NOTEWORTHY PROCEDURES AND
PRINCIPLES IN ISRAELI LAW
Good faithA great emphasis is placed on the principle of good
faith under Israeli law. The duty of a party to act
in good faith is often sufficient to tether a party to
liability (or rights), and sometimes even to create
duties towards another party harmed by conduct in
bad faith – even if the obligations in this context are
not expressly included in the original agreement
between the parties.In practice, the courts consider themselves
authorized to provide broad interpretations of the
language of the contract and enforce contractual
obligations that arenot expressly (or even implicitly)
set out in the agreement between the parties.The duty of a party to act in good faith was set
in the Israeli Law of Contracts and applies to all the
contractual stages – the negotiations, the execution
of the agreement and its termination.Over the years, the application of the principle
extended beyond the Law of Contracts and, in
accordance with well-established and binding
Israeli case law, the principle of good faith applies
to all areas of private law.An indication of the prominence of the good
faith principle in Israeli law, as elaborated above,
can be seen in the fact that one of the conditions
that should be met for the court to certify a motion
to submit a class action or derivative action is that
the motion was submitted in good faith.
Unjust enrichmentUnjust enrichment is a recognized and well-
established cause of action under Israeli law. It is
often used by the injured party in situations where
there is difficulty proving damages (or where it is
impossible to do so), but where the injured party
can show that there is enrichment resulting from a
breach of contract.Under such circumstances, a party might be
required to reimburse the other party for its
enrichment.Under Israeli law, a plaintiff must prove 3
cumulative elements in an unjust enrichment claim:
• Enrichment by the opposing party;
• Said enrichment is the result of action(s) takenby the plaintiff; and
• Said enrichment is unlawful.
Standard Form ContractsAstandard formcontract is a contractwithauniform
formulation intended for many engagements. For
the most part, the contract is drafted by one party
or at its request in order to be used in agreements
between that party and their customers. The
contract is usually presented to the customer as a
finished product that cannot be negotiated.
Unjust enrichment is a recognized
and well-established cause of
action under Israeli law.