A Benefactor's Right Of Action Against A Tortfeasor: A New Approach In Israel
| Author | M. Shalgi |
| DOI | http://doi.org/10.1111/j.1468-2230.1966.tb01097.x |
| Date | 01 January 1966 |
| Published date | 01 January 1966 |
A BENEFACTOR’S RIGI-IT
OF
ACTION
AGAINST A TORTFEASOR
:
A NEW APPROACH IN ISRAEL
THERE are but few instances where the law lags as badly behind
morals and social needs as in its treatment of those who come to
the aid of others in time of distress. As between the one who incurs
expenses in order to assist the victim of a tortious act-thereby
mitigating his harm
or
suffering-and the tortfeasor, it would seem
obvious that
it
is the latter who ought to bear the burden. Yet the
law in leading jurisdictions treats such generosity either as un-
solicited intervention in other people’s business and denies the helper
any right to sue the wrongdoer,
or,
when exceptionally it does give
him such a right, it docs
so
through indirect and curious paths.
In the United Statcs, in cases of rescue of life or health, the
rescuer-or his successors where he dics in consequence of his action
-is given
a
right of action against the tortfeasor only through
a
somewhat artificial judicial extension of the rules of causation and
foreseeability.’ This was described by an eminent American lawyer
as
a
“
straining of the idea of foreseeability past the breaking
point,”
*
and he called for new concepts to substantiate thc rescuer’s
claim.
In
cases of help to an injured person other than rescue of
life the right is generally limited to the employer of the victim. He
can recover from the injurer wages paid to an incapacitated
employee, in
so
far as such payments are made under statutory
obligation.
French law is
no
more generous.
It
adopts
a
technique similar
to thc American provisions,
in
allowing a rescuer a right of action
against the wrongdoer on the ground that he ought to have fore-
seen the intervention
of
thc rescuer and the damage to him.9
Other forms of help give rise
to
a similar right only in exceptional
cases: where the state pays a pension,
or
other payments, to an
incapacitated civil servant,
or
where payments to the victim are
made by social security
fund^.^
German law deals more kindly with thc altruistic intervenor, but
very circuitously, through what has been described as
“
an astonish-
ing feat of judicial creation of law
”
6:
the remedy is granted in
1
Prosscr,
Handbook
of
tlic
Law
of
Torts
(2nd
ed.,
19GG),
pp.
172-173.
2
3’.
H.
Bohlcn
(1043) 47
H8rv.L.R.
GG6,
G57.
8
Recently the
Supreme
Court
in
Israel
ac;cprded
the
same
remod
4
See
nevue
Trimestyk?llc
do
Droit Civil,
19Gti,
p.
100,
NOE.
7-8.
5
John
P.
Dowson,
on
similar
Dan”
v.
David
Isrocfi)
17
Piskoi-
Ncgotiorum
Gestio:
The
dltruistic Intermeddler
”
(l9Gl)
grounda
in
C.A.
290/63
(Joscf
Nalium
1
Din
2GG7.
74
Harv.L.R.
817,
ah
p.
857.
42
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