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Can a Spouse Confer a Better Title Than He Possesses?

Published online by Cambridge University Press:  12 February 2016

Joshua Weisman
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Type
Cases
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Israel Law Review , Volume 7 , Issue 2 , April 1972 , pp. 302 - 312
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1972

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References

1 Apte v. Apte (1969) (I) 25 P.D. 561. “The complicated problems in this case must be resolved by way of legislation… Law arising out of precedent may be satisfactory in providing justice in certain cases but, at the same time, such procedure might operate to the detriment of the laws relating to property, contract and tort and, by creating a situation of uncertainty, may in the final analysis occasion unjust results in other cases”. (Kahn J. at p. 572. For a similar view see the dictum of Landau J. at p. 573). A variety of legal literature has emerged as a result of the cases on this subject decided by the courts: Rosenzweig, Yaacov Arieh, “Community Property” (1968) 1 Mishpatim 185.Google ScholarYadin, U., “The Rule in Berger-Briker-Bareli” (1969) 25 Hapraklit 442.Google ScholarYadin, U., “Community Property With Regard To Outsiders; What Next?” (1970) 26 Hapraklit 474.Google ScholarCohen, S., “Problems Relating To Spouses” (1971) 27 Hapraklit 171.Google ScholarYadin, U., “The Matrimonial Property Relations Bill, 1969” (1971) 6 Is.L.R. 106.Google ScholarDoukhan-Landau, L., “Husband and Wife as Co-owners of Immovable Property” (1971) 6 Is.L.R. 487.Google Scholar For the standpoint of Jewish law on this subject see: Wahrhaftig, Z., “Community of Property Between Husband and Wife” (1957) 1 Publications of the Fourth World Congress On Jewish Studies (Jerusalem) 189.Google Scholar

2 Briker v. Briker (1965) (I) 20 P.D. 589, 597.

3 Apte v. Apte, supra at p. 577.

4 Apte v. Apte at p. 566; Briker v. Briker, supra at 589, 606.

5 Apte v. Apte, supra, Kahn J. at p. 571, Etzioni J. at p. 575, Witkon J. at p. 577.

The facts of this case are as follows: When he was in his fifties Mr. Apte married Mrs. Apte. This was his second marriage. Prior to this marriage, Mr. Apte already owned a piece of land on which he built a house after he married Mrs. Apte. To a small extent, she contributed towards the building cost. Throughout the mar riage the wife had no separate income of her own. After the couple had lived together in the house on good terms for 18 years, they began to quarrel. The husband left the matrimonial home to live elsewhere and let the house to a son of his first marriage. The wife issued proceedings for a declaration that a half share in the house, the title of which was registered in her husband's name, belonged to her and, on this basis, claimed that the letting, insofar as this related to her share, should be declared null and void. The majority opinion of the court was that, from the circumstances described, it was not possible to conclude that the wife held half the ownership of the house and, accordingly, the letting was allowed to stand. However, the dissenting opinion of the court was that the wife should be recognized as owner of half the share in the house and that, as far as this related to the wife's share in the property, the letting should be cancelled since, in the circumstances of the case, the tenant knew that the landlord, in effecting the letting, had not also acted in the name or on behalf of his wife.

6 Apte v. Apte, supra at pp. 566–67.

7 See: Bareli v. Controller of Inheritance Tax (1968) (I) 23 P.D. 393, 396. Levi v. Goldberg (1969) (I) 24 P.D. 813, 819. See also: Mizrachi v. Hussein (1968) (II) 23 P.D. 206.

8 At p. 572.

9 Fein v. Apel (1969) (II) 23 P.D. 615.

10 See Harnon, E., Law of Evidence (1970) part I, p. 194.Google Scholar

11 Although the principle of agency is entirely rejected by him without making any distinction between the different kinds of property.

12 See Briker v. Briker, supra.

13 Sec. 166. For an explanation of this section see: Goldberg, A., “The Transitional Provisions of the Land Law, 5729–1969” (1970) 2 Mishpatim 425.Google Scholar

14 See: Weisman, J., “The Land Law, 1969: A Critical Analysis” (1970) 5 Is.L.R. 380, 451 n. 271.Google Scholar

15 Pomeroy, , Equity Jurisprudence (San Francisco, 5th ed., 1941) vol. 2, p. 666.Google ScholarSnell's, Principles of Equity (London, 26th ed., 1966) 55Google Scholaret seq. See also: Zibert v. Bayit Venachala Ltd. (1950) (II) 8 P.D. 958, 963.

16 See for example, Briker v. Briker, supra at p. 597. Apte v. Apte, supra at p. 566. See also, The Matrimonial Property Relations Bill, 1969, which is based on the principles of co-ownership (which crystallize on the break-up of a marriage), and also, see supra n. 1, Doukhan-Landau at p. 511.

17 Weisman, supra n. 14 at p. 383 et seq. Boker v. Anglo-Israel Management and Guarantee Company (1970) (II) 25 P.D. 121.

18 See: Weisman, supra n. 14 at pp. 386–88.

19 Ibid., 383–88. Sec however: Boker v. Anglo-Israel Managemet and Guarantee Company, supra, and also: Yadin, U., “The Matrimonial Property Relations Bill, 1969” (1971) 6 Is.L.R. 106 at 108.Google Scholar

20 See for example, Howard v. Melamed (1967) (I) 22 P.D. 100.

21 Sec. 9 of the Land Law, and see: Weisman, supra n. 14 at p. 386. In view of sec. 8 of the Land Law which provides that an obligation to effect a transaction in immovable property requires written documentation, a question may arise in cases where there is no written documentation between the spouses. Does such an “obliga tion” also require writing? This question arises since the type of obligation under consideration is not an obligation which, in its true sense, was effected between the parties. It is rather a fictitious obligation resulting from the provisions of sec. 7(b), applicable in cases where a transaction in immovable property was not registered. In such cases the law regards the parties as if an obligation was entered into by them.

22 Secs. 10, 125(a) of the Law.

23 Sec. 125(b). See also: Boker v. Anglo-Israel Management and Guarantee Company, supra at p. 134.

24 Sec. 10 provides: “Where a person acquires a right in settled immovable property for consideration and in bona fide reliance on registration, his right shall be valid even if the registration was not correct.”

25 Sec. 9 provides: “Where a person has entered into an obligation to effect a transaction in immovable property, and before the transaction is completed by registration enters into an obligation 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.”