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A Digest of Selected Judgments of the Supreme Court of Israel
Published online by Cambridge University Press: 04 July 2014
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- Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1994
References
1 See Lapidoth, Arye, “Taxation of ‘Notional Income’ Derived from ‘Preferred Loans’”, (1994) 28 Is.L.R. 154–163CrossRefGoogle Scholar.
2 13 L.S.I. 73.
3 Section 2 of the Women's Equal Rights Law, 1951 (5 L.S.I. 171) states, “A married woman shall be fully competent to own and deal with property as if she were unmarried; her rights in property acquired before her marriage shall not be affected by her marriage”.
4 Sidis v. The President of the Rabbinic Supreme Court, (1958) 12 P.D. 1528, at 1534; R. Balbin v. Y. Balbin, (1960)14 P.D. 285, at 290.
5 See Elon, M., Jewish Law, (Jewish Publication Society, Philadelphia and Jerusalem, 1994) 1802–1807Google Scholar.
6 Section 2A of the amended Family Support Law (30 L.S.I. 99) states, “Notwithstanding anything provided in the Women's Equal Rights Law 1951, in determining the extent of the maintenance a person is required to provide to his spouse, the court may take into account the income of the spouse from work or property and, if it sees fit, from any other source”.
7 Section 2(a) of the Family Law Amendment (Maintenance) Law, 1959, (supra n. 2) states, “A person is liable for the maintenance of his spouse in accordance with the provisions of the personal law applying to him, and the provisions of this Law shall not apply to that maintenance”.
8 Omri et al. v. Zoavi et al. (1985) 39(ii)P.D. 113; Koplowitz v. Koplowitz (unpublished) C/A 610/88.
9 The Standard Contracts Law, 1983, section 14 empowers the courts to void restrictive terms of standard (form) contracts when such terms are prejudicial to customers or give an unfair advantage to suppliers (37 L.S.I. 6).
10 Section 30 of The Contracts (General Part) Law, 1973, (27 L.S.I. 117, at 122) provides that “A contract the making, contents or object of which is or are illegal, immoral, or contrary to public policy is void”.
11 The Jewish Religious Services Law (Consolidated Version), 1971, (25 L.S.I. 125) and the Jewish Religious Services Budgets (Amendment) Law, 1966 (20 L.S.I. 43).
12 Regarding specific restrictive laws in this regard, see Ben-Tzvi et al. v. The Public Council for the Memorialization of the Soldier, (1976) 30(i) P.D. 305.
13 Contracts (General Part) Law, 1973, section 12.
14 Ibid., at sec. 39.
15 Ibid., at sec. 30, see supra n. 10.
16 Civil Wrongs Ordinance (New Version), sec. 63 (2 L.S.I. [N.V.] 5, at 20).
17 Ibid., at sec. 36.
18 The Basic Law: Human Dignity and Freedom, 1992, (S.H. no.1391, p.150) provides:
“Section 2. There shall be no violation of the life, body or dignity of any person as such.
Section 4. All persons are entitled to protection of their life, body and dignity.
Section 8. There shall be no violation of rights under this Basic law except by a Law fitting the values of the State of Israel, designed for a proper purpose, and to an extent no greater than required”.
19 Gidon v. Hevra Kadisha et al., (1973) 27(i) P.D. 10.
20 The Land Law, 1969, section 9, (23 L.S.I. 283) provides: “Where a person has undertaken to effect a transaction in immovable property, and before it is completed by registration he undertakes towards another person to effect a conflicting transaction, the right of the party to the first transaction shall prevail: Provided that if the party to the second transaction has acted in good faith and for consideration, and such transaction is registered while he is still in good faith, his right shall prevail”.
21 The Contracts (Remedies for Breach of Contract) Law, 1970, (25 L.S.I. 11) section 3, states: “The injured party is entitled to enforcement of the contract unless one of the following obtains: … (4) enforcement of the contract in the circumstances of the case is unjust”.
22 Based on the German vormenkung.
23 In Wertheimer et al. v. Harari et al. (1981) 35(iii) P.D. 253, a special bench of five justices ruled that the provisions of section 9 of the Land Law, 1969, supra n. 20 are to be preferred over the provisions of section 3(4) of the Contracts (Remedies for Breach of Contract) Law, 1970, supra n. 21.
24 This point was not considered in Wertheimer, ibid., and though considered in Kanini v. Nasser et al. (1989) 43(ii) P.D. 102, was left for future deliberation.
25 Prof. Cohen, N., “Intervention in Contractual Relationships” (Ramot, 1982) 375Google Scholar.
26 In his decision, Justice Goldberg cites the contrary opinion of Prof. Reichman, A., “The Cautionary Notice — Substance, Form, and Defence Against Conflicting Transactions” (1984) 10 Iyunei Mishpat 297Google Scholar, that a judicial policy of considering favoring registration of a Cautionary Notice, rather than being tantamount to judicial legislation requiring such, amounts only to notice that failure to do so carries a risk.
27 61Am. Jur. 2d. (Rochester and San Francisco, 1981) 313Google Scholar.
28 Kennedy v. Parrott 90 S.E. 2d 754 (1956).
29 Marshall v. Curry [1933] 3 D. L. R. 260; Murray v. McMurchy [1949] 2 D. L. R. 442.
30 C/A 254, 253/85, (unpublished).
31 Am. Jur., supra n. 27, at 319.
32 P. Kohari et al. v. State of Israel et al. (1991) 45(ii) P.D. 142; Asa v. Kupat Holim (1987) (iii) P.M. 32.
33 Surgery without prior free-will consent is considered assault, grounds for damages, per sec. 23(a) of the Civil Wrongs Ordinance (New Version) (supra n.16) which provides: “Assault consists of intentionally applying force of any kind, whether by way of striking, touching, moving or otherwise, to the person of another, either directly or indirectly, without his consent, or with his consent if the consent is obtaine by fraud…”. Cf. D. Nachman v. Kupat Holim (1986) 40(ii) P.D. 384; Kortam v. State of Israel, (1986) 40(iii) P.D. 673, at 683-5; P. Kohari et al. v. State of Israel, supra n. 32, at 166.
34 Am. Jur., supra n. 27, at 329.
35 Kohari, supra n. 32, at 172.
36 “Public institution” is the official translation of what, in U.S. Tax Law is known as a non-profit organization, and in U.K. Tax Law is known as a charity.
37 The Income Tax Ordinance, (1 L.S.I. [N.V.] 145) section 9, reads “Exempt from Tax are: … (2) The incomes of a local authority, lottery, retirement fund, and public institution… in this section… ‘public institution - a group of at least seven persons, the majority of whom are not relatives of each other… established and acting towards a public goal and whose properties and income are used to obtain the public goal exclusively … ‘public goal’ - a goal whose subject is religion, culture, education, science, health, welfare or sport and likewise another goal certified by Finance Minister as a public goal”.
Section 46(a) reads,” A person who donated in a certain tax year an amount greater than 90NIS… to a public institution in its meaning per section 9(2) as set for this matter by the Finance Minister with the approval of the Knesset Finance Committee, 35% of such donation shall be credited from the tax”.
38 Slee v. Commissioner of Internal Revenue 42 F. 2d 184 (1930); Regan v. Taxation with Representation of Wash. 461 U.S. 540 (1983); Commissioners of Inland Revenue v. Temperance Council, & Co. of England and Wales (1926) 136 L.T. 27 (K.B.)
39 Bergman v. Minister of Finance et al., (1969) 23(i) P.D. 693.
40 Peretz et al. v. Kfar Shmaryahu Regional Council, (1962) 16 P.D. 2101.
41 The Law of Evidence Revision (Protection of Children) Law, 1955 (9 L.S.I. 102) reads: “Sec. 2(a) Save with the permission of a youth interrogator, a child shall not be heard as a witness as to an offence against morality, committed upon his person or in his presence, or of which he is suspected, and a statement by a child as to such an offence shall not be admitted as evidence.
Sec. 2(b) Where a youth investigator has permitted a child to be heard as a witness, no person shall be present at the taking of the evidence except the prosecutor, the accused, the advocate of the accused, the youth interrogator and any person whom the Court has permitted to be present.
…
Sec. 4 Except for an examination as a witness permitted by a youth interrogator under section 2, a child shall not be examined as to an offence against morality save by a youth interrogator; but this provision shall not apply —
(1) to questions put at the time or immediately after the commission of the offence or as soon as a reasonable suspicion arises that such an offence has been committed;
(2) to questions put by the father, the mother, the guardian, the person having supervision or control of the child, or a physician”.
42 Section 1 of the Law of Evidence Revision (Protection of Children) Law, 1955 states: “In this Law - “child” means a person under fourteen years of age; “offence against morality” means any of the offences enumerated in the Schedule”.
43 Per section 3 of the Evidence of Children Law, a “youth interrogator” is an appointee of the Minister of Justice, in consultation with a inter-ministerial committee of appointees consisting of: a Magistrate Court judge who tries juvenile cases, a mental hygiene expert, an educator, and a child and youth care expert.
44 For a critical assessment of the Child Protection Law, its exercise, its consequences, and proposals for its reform, see Harnon, E., “Examination of Children in Sex Offences — The Israeli Law and Practice” [1988] Crim. L.R. 263Google Scholar, and, in Hebrew, Harnon, E., “Children's Evidence in Sexual Offences — The Need for Reconsidering the Israeli System” (1994) 24 Mishpatim 151Google Scholar.
45 L.S.I. Special volume, p. 43.
46 Courts Law (Consolidated Version), 1984, section 68(b)(5), (38 L.S.I. 271, at 289).
47 Criminal Procedure Law (Consolidated Version), 1982, section 139 (36 L.S.I. 35, at 60), states: “A record shall be prima facie evidence of the proceedings: Provided that in an appeal in the same manner the accuracy of the record shall not be challenged, and no evidence of an error therein shall be introduced, save with the permission of the appellate court”.
48 Section 137, ibid., states: “The court may, on the application of a party and after giving the other parties an opportunity to be heard, amend an entry in the record with a view to rectifying it. The court shall entertain an application for rectification as aforesaid even if it is submitted after judgment has been passed, so long as the period of appeal has not elapsed”.
49 Ibid.