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Published online by Cambridge University Press: 16 February 2016
1 Yosifof v. Attorney General (1951) 5 P.D. 481, at 490 and 502-503; 1 S.J. 174, at 183-184 and 199-200; Watad v.Minister of Finance (1984) 38(iii) P.D. 113, at 119.
2 Drayton, , The Laws of Palestine 1933, vol. II: Ordinances, chap. 88, p. 903Google Scholar. Sec. 2 of the Ordinance defines the “registering authority” in the case of a Jewish marriage simply as “the Rabbi”.
3 Sec. 2(6) of the Law provides: “The functions of the Council are … the conferment upon a rabbi of eligibility to serve as a rabbi and marriage registrar” (34 L.S.I. 97).
4 In addition to the Ordinance and the Law, Elon D.P. also referred to the Regulations adopted by the Council in 1950 according to which marriages between Jews could only be performed by a person so authorized by the Chief Rabbinate.
5 In accordance with sec. 3 of the Ordinance, which provides that “the registering authority shall register every marriage at the time of its celebration …”, the rabbi who registers the marriage is the same rabbi who performs the marriage. Hence, in applying to serve as a “marriage registrar” the applicant is essentially applying for permission from the State to perform marriages.
6 Sec. 2 of the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 1953, provides that “marriages and divorces of Jews shall be performed in Israel in accordance with Jewish religious law” (7 L.S.I. 139).
7 According to Jewish religious law descendants of the priestly class (i.e., Cohanim) are prohibited from marrying divorcees.
8 See supra n. 6.
9 It should be noted that pursuant to sec. 1 of the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 1953, “matters of marriage and divorce of Jews in Israel, being nationals or residents of the State, shall be under the exclusive jurisdiction of rabbinical courts”.
10 Yohana Platiel v. Israel Platiel (1959) 13 P.D. 599, at 604; A v. B (1972) 26(i) P.D. 85, at 101.
11 “And, while the children's attitudes were to be given consideration, that did not mean that their wishes were to be determinative. The best interests of a child, particularly over the long term, often require the overbalancing of subjective desires by more dependable objective criteria (Dintruff v. McGreevy, 34 N.Y. 2d 887, 359 N.Y.S.2d 281, 316 N.E.2d 716)” as quoted in Ebert v.Ebert 346 N.E.2d 240 (1976).
12 Sec. 34 of the Law provides as follows: “A testamentary provision the execution of which is illegal, immoral or impossible is void” (19 L.S.I. 63).
13 Sec. 30 of the Contracts Law provides as follows: “A contract the making, contents or object of which is or are illegal, immoral or contrary to public policy is void” (27 L.S.I. 117, at 122).
14 It is against the background of the general principle of respect for the testator's wishes that, according to Maltz J., the provision of sec. 44(a) of the Succession Law (supra n. 12, at 65) provides that “the testator may direct in his will that an heir shall be divested of his right upon the fulfilment of a condition or at a certain time”.
15 Sec. 61(b) of the Contracts Law (supra n. 13, at 127) provides as follows: “The provisions of this Law shall, as far as appropriate and mutatis mutandis, apply also to legal acts other than contracts and to obligations not arising out of a contract”.
16 It should be noted that Yehudit, the appellant, had opposed probate by alleging undue influence, as well as by claiming that Martha had taken part in the preparation of the will. Both these claims were rejected by the Court.
17 Sec. 12 of the Contracts Law,supra n. 13, provides as follows: “In negotiating a contract, a person shall act in customary manner and in good faith”. Sec. 39 provides that: “An obligation or right arising out of contract shall be fulfilled or exercised in customary manner and in good faith”.
18 For example, Elon D.P. drew attention to secs. 2-9 of the Capacity and Guardianship Law, 1962 (16 L.S.I. 106).
19 “Cooperative house” is defined in sec. 52 of the Land Law as follows: “‘Cooperative house’ means a house containing two or more dwellings which is registered in the Register of Cooperative Houses” (23 L.S.I. 283, at 291).
20 Sec. 61 of the Land Law provides: “A cooperative house shall be managed in accordance with rules regulating relations between the owners of the dwellings and their rights and duties with regard to the cooperative house” (at 294).
21 Sec. 52 of the Land Law defines common property as follows: “‘Common property’ means all the parts of the cooperative house other than the parts registered as dwellings, and includes the land, the roofs, the outer walls, the foundations, the staircases, the lifts and the shelters, as well as the heating, water and other similar installations intended to serve all or most of the owners of the dwellings even if such installations are situated within a particular dwelling” (at 291).
22 Sec. 161 of the Land Law (at 311) provides: “From the coming into force of this Law, there shall be no right in immovable property except under Law”. However, the equitable rights of the respondents derived from the Purchase Agreement which, as indicated, had been entered into in 1965, before the commencement of the Law.
23 Sec. 54 of the Law (at 292) states: “Notwithstanding the provisions of sec. 13, a dwellingin a cooperative house shall be a separate subject of ownership, rights and transactions”. And sec. 55 states:
“(a) An unspecified part of the common property of a cooperative house is linked to each dwelling therein.
(b) A transaction in respect of a dwelling shall extend also to such part of the common property as is linked to that dwelling, and a transaction in respect of the common property separately from the dwelling shall be invalid. This provision shall not prevent an act designed to diminish or enlarge the area of the land which forms part of the common property.
(c) The owners of the dwellings may stipulate in the rules, within the meaning of Article Three of this chapter (hereinafter referred to as ‘the rules’), that a specific part of the common property shall belong to a particular dwelling: Provided that they shall not so stipulate in respect of staircases, lifts, shelters or installations intended to serve all the owners. Where a specific part of the common property has been linked to a particular dwelling, the provisions of this Law relating to the common property shall not apply to that part, and that part shall for all purposes be treated like the dwelling to which it has been linked”.
24 Sec. 62(a) states: “The owners of the dwellings may draw up rules and vary the provisions thereof by a majority of owners to whose dwellings two thirds of the common property is linked; however, no rights of owners shall be determined or varied by the rules, and no duty or payments of a type or at a rate not specified in this Law shall be imposed on them, save with their consent, and the linking of a specific part of the common property to a particular dwelling shall not be prescribed save with the consent of all the owners” (at 294).
25 I L.S.I. [N.V.] 222, as amended in Traffic Ordinance (Amendment No. 15) Law, 1979 (34 L.S.I. 16, at 22). Sec. 64A(a) provides: “The driver of a vehicle who was involved in an accident and who knew or should have known that in the circumstances of the case a person might have been injured, and who did not stop at, or as near as possible to, the place of the accident in order to ascertain the consequences thereof, is liable to imprisonment for the term of seven years, with or without a fine: Provided that conditional imprisonment shall not be imposed on him either as the only penalty or as an additional penalty and that a probation order shall not be made against him”.
26 Regulation 144(a) lays down a number of instructions which are to be strictly observed by a driver involved in an accident as a result of which a person is killed or injured. These instructions impose, inter alia, an obligation to stop, provide assistance and inform the police as soon as possible. Regulation 144(a), in contrast to the provisions of sec. 64A(a), makes no reference to a requisite mental state on the part of the driver, which must be shown to have existed. As explained below, only the offence under sec. 64A(a) carries a mandatory imprisonment term.
27 Prior to the amendment of 1979, sec. 64A(a) had referred to “the driver of a vehicle who in driving caused an accident…” The case law interpreted the element of causation as imposing an obligation on the prosecution to prove fault on the part of the driver in causing the accident (Eliesef v. State of Israel (1974) 28(i) P.D. 212).
28 Attorney General v. Yarkoni & others (1964) 18(iv)P.D. 20.
29 It should be noted that, in contrast to cases where criminal responsibility was imposed on the main perpetrators for having failed to act, the Court did not address the question of whether the appellants had been under a duty to act.
30 P.G. No. 1470, 1946 Supplement No. 2, 163. Regulation 112(1) provides: “The High Commissioner shall have power to make an order under his hand (hereinafter in these regulations referred to as ‘a Deportation Order’) for the deportation of any person from Palestine. A person in respect of whom a Deportation Order has been made shall remain out of Palestine so long as the Order remains in force”.
31 P.G. No. 1602, 1947 Supplement No. 2,1170. Regulation 112(8) provides: “Any advisory committee appointed under the provisions of subregulation (4) of regulation 111 of the principal Regulations may, if so requested to do by any person in respect of whom a deportation order has been made under this regulation, consider and make recommendations to the Government in respect of any such deportation order”.
32 2 L.S.I. [N.V.] 198, at 208.
33 Va'anunu v.State of Israel (1987) 41(iii) P.D. 533, at 538;Libani & others v. State of Israel (1984) 38(iii) P.D. 729, at 738.