אסדרת החוזה הבנקאי – מחקר אמפירי והשלכות נורמטיביות

Translated title of the contribution: Regulating Banking Contracts: Empirical and Normative Analysis

משה גלברד, יהודה אדר

Research output: Contribution to journalArticlepeer-review

Abstract

Standard form banking contracts are central to the bank-customer relationship. Notwithstanding their obvious advantages in terms of economic efficiency, these consumer contracts often incorporate exploitative and one-sided contractual terms that are either unfair to the consumer or inefficient, or both. Under Israeli law, banking contracts have traditionally been subject to supervision by the ordinary civil courts and by a special tribunal known as the Standard Form Contracts Tribunal (hereinafter the“Tribunal”). Drawing on pertinent legislation and case law, this empirical study examines the extent to which banking contracts used by Israeli banks comply with Israeli law covering standard forms. The first part of this study thoroughly analyzes two types of consumer contracts used in banking: mortgage contracts and account agreements (general terms and conditions). The study shows that most banks usually comply with applicable law, adapting and updating their standard forms to reflect any legislative or judicial changes regarding the legality or fairness of certain terms. Over time, however, the level of compliance with the courts’ and the Tribunal’s rulings in this area has eroded. Furthermore, we detected a significant level of deviation from applicable statutes in forms that have expanded to cover additional subjects not examined by the courts or the Tribunal (such as issues concerning the provision of technological services). The second part of this article offers a normative analysis of the enforcement problem in the field of banking contracts. Drawing on a previous theoretical study, were commend supplementing the current supervisory mechanisms (mainly the courts and the Tribunal) with a robust system of permanent administrative oversight of banking contracts’ content. Expanding the current authority of Israel’s Banks’ Supervisor to include enforcement of standard-form law may help the State maintain and improve compliance with the substantive law on standard forms.
Translated title of the contributionRegulating Banking Contracts: Empirical and Normative Analysis
Original languageHebrew
Pages (from-to)113-146
Number of pages34
Journalמחקרי רגולציה
Volumeח'
StatePublished - 2024

IHP Publications

  • ihp
  • Banks and banking
  • Contracts
  • Standardized terms of contract
  • Delegated legislation
  • Banks and banking -- State supervision
  • Deprivation (Psychology)
  • Discrimination

Fingerprint

Dive into the research topics of 'Regulating Banking Contracts: Empirical and Normative Analysis'. Together they form a unique fingerprint.

Cite this