"Clerical Mistake in a Judgment" Under Israeli and American Procedural Law – A New Model
This Article examines the development and efficiency of the procedure for correction of a clerical mistake in a judgment in the Israeli law. As is well known, the procedure offers a short and simple way to correct an error in language within a decision. The litigants may file a motion to correct a decision in the same court that granted it, without having to file an appeal in the appellate court. The difficulty, however, is that this procedure contains three fundamental flaws that might even hinder its purpose: First, the law binds the parties and the court to the same number of days to correct the decision, instead of first determining a fixed time period for the parties to submit a motion and only thereafter the time period for the court. Second, the law does not allow to independently appeal the decision on the motion for correction. Third, this procedure does not include a mechanism that “freezes” the time period to appeal the first decision. The resulting parallel race in time between two procedures forces the parties to simultaneously implement them both: error correction in the court that gave the decision and appeal in the appellate court.
This Article proposes a new model based on the arrangement in American law on this issue. In response to the first of these flaws, it suggests adopting principles from a similar procedure which historically faced the same concerns, the procedure for cancelling an ex parte decision. With respect to the second flaw, it proposes allowing a litigant to separately appeal the second decision – the decision on the motion for correction. Regarding the third flaw, this Article recommends “freezing” the time to appeal the first decision, the actual judgment, so that it will begin only when a decision is granted on the motion for correction. This is a sort of statutory extension for filing the appeal. Such a solution for the third flaw will in any event also resolve the first one. This Article examines the procedure under the American legal system that also dealt with similar difficulties. In addition, it establishes a foundation for the proposed modifications and offers new language for the relevant law.
"Clerical Mistake in a Judgment" Under Israeli and American Procedural Law – A New Model,
69 Clev. St. L. Rev.
available at https://engagedscholarship.csuohio.edu/clevstlrev/vol69/iss3/5