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Independent Development of Israeli Law*

Published online by Cambridge University Press:  12 February 2016

Daniel Friedmann
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It is not always easy to decide when we must turn to English law. And once it has been determined that reference to English law is appropriate, there is the further question of the substance and application of principles drawn from English law. In such case, English law forms part of the local law, and need not be ascertained as required by the rules of private international law in respect of foreign law.

This makes the local law directly dependent upon English case-law, which itself is constantly being renewed and developed. Such dependence may seem to impair the independence of the Israeli legal system. The question could not, of course, be raised during the Mandatory period at a time when there existed a possibility of appeal from the Mandatory Supreme Court to the Privy Council in Westminster. But after the establishment of the State Cheshin J. said:

It is unthinkable that a sovereign nation with its own laws and its own legal system would continue to be subject to the authority of a foreign nation's legal system and to changes in rulings which are likely to be introduced in her courts, only because in the past, when there was a strong tie between the two nations, the former drew from the legal system of the latter.

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Israel Law Review , Volume 10 , Issue 4 , October 1975 , pp. 515 - 568
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1975

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References

1 Cf. Englard, , “The Status of Religious Law in Israel” (1970) 2 Mishpatim 268, 310 at 311.Google Scholar

2 Kochavi v. Becker (1957) U P.D. 225, 244.

3 Cf. Hooper, , The Civil Law of Palestine and Trans-Jordan (1936) vol. 2, pp. 69–70Google Scholar and the opinion of Goitein J. in Goldberg v. Ben Asher (1955) 9 P.D. 909, 915. This question is also relevant to determine whether we may absorb principles of common law and equity which were changed by statute before the material date. It will be recalled that English statutory provisions do not as such apply in Israel.

4 (1952) 6 P.D. 514, 564–65.

5 See also Kochavi v. Becker, supra n. 2, at pp. 242–44.

6 This opinion of course rejects the “declarative” theory by which English decisions “discover” existing principles of common law.

7 Kochavi v. Becker supra n. 2, at p. 239.

8 Mitchell v. Missisippi 179 Miss 814, 176 S. 743, 121 A.L.R. 258, 261 (1937).

9 For a discussion of this subject see Abrams, , “Interpreting the Criminal Code Ordinance, 1936—The Untapped Well” (1972) 7 Is.L.R. 54Google Scholar, and Cheshin, in Tort Law: The General Part (Tedeschi, ed., Jerusalem, 1969, in Hebrew) 70.Google Scholar

10 (1954) 8 P.D. 1317.

11 [1893] 1 Q.B. 491.

12 [1951] 2 K.B. 164.

13 [1932] A.C. 562.

14 With regard to Weinstein v. Kadima, supra n. 10, see also “Infusion of the Common Law” text at nn. 130–32.

15 Hedley Byrne v. Heller [1964] A.C. 465, and Street, The Law of Torts (5th ed., 1972) 204 et seq.

16 Supra n. 2, at p. 236.

17 The relevance of sec. 11 of the Law and Administration Ordinance may be doubted. See also Abrams, supra n. 9, at p. 55.

18 On this matter Berinson J. noted in State of Israel v. Gitter (1963) 17 P.D. 2073, 2077: ‘The precedent [in London Graving Dock Co. v. Horton [1951] A.C. 737] cannot bind this court and we need not follow it. If this was the case before the Courts Law, 1957, it is all the more so today when the Court is no longer bound even by its own prior ruling. We treat a precedent of the House of Lords, particularly in regard to an English statute which we follow, with great respect. But, in view of the severe criticism levelled in England itself at the majority decision in Horton until the English legislator saw fit to nullify the result of the decision by enactment of the Occupiers' Liability Act, 1957, there is nothing to move us to assume the burden of this precedent.” See also the opinion of H. Cohn, J. in American Cyanamid v. Lepetit and Abik (1962) 16 P.D. 788, 799.Google Scholar For a discussion of these decisions see Procaccia, , “Principles of Construction of Israeli Law, Especially the Law of Contracts, with Reference to English Law” (1975) 1 Tel Aviv Univ. Studies in Law 142, 143.Google Scholar

19 Stern v. Shamir (1958) 12 P.D. 421, 427.

20 See also Tedeschi, , “The Problem of Lacuna in the Law and Art. 46 of the Order-in-Council” in Studies in Israel Law (2nd ed., Jerusalem, 1959, in Hebrew) 133 at 183.Google Scholar

21 See National Insurance Institute v. Ravitzky (1966) (III) 20 P.D. 29, 38 and Rosenbaum v. Rosenbaum (1953) 7 P.D. 1037, 1045. Compare also the opinion of Denning L.J. in Nyali Ltd. v. A.G. [1955] 1 All E.R. 646, 653.

22 (1952) 6 P.D. 1242.

23 [1949] 1 K.B. 643.

24 British Transport Commission v. Gourley [1956] A.C. 185. But no such deduction is to be made where the plaintiff is liable to pay income tax on the amount awarded. See Street, , The Law of Torts (5th ed., 1972) 437.Google Scholar

25 (F.H.) (1959) 13 P.D. 237.

26 It will be noted that this approach is not based on the distinction between English decisions rendered before or after the establishment of the State. The Attorney General had contended that we are bound by the construction given in England to terms in the Ordinance prior to 1948 (id. at 240); but the distinction between principle and mode of application apparently holds good even as regards such a decision.

27 Moreover, a decision of the Supreme Court of Israel constitutes binding precedent for the lower courts. There is no similar statutory provision regarding English precedents.

28 Kornfeld v. Samuelon (1967) (I) 21 P.D. 310.

29 (F.H.) (1966) (I) 20 P.D. 57.

30 Id. at p. 69. As illustrative of the liberal approach the following authorities were cited among others: Sherras v. De Rutzen [1895] 1 K.B. 918; Harding v. Price [1948] 1 K.B. 695; and Reynolds v. Austin [1951] 2 K.B. 135; and in favour of the strict approach, Watson v. Coupland [1945] 1 All E.R. 217; Browning v. Watson [1953] 2 All E.R. 775; and Hughes v. Hall [1960] 2 All E.R. 504.

31 Warner v. Metropolitan Police Commissioner [1968] 2 All E.R. 356; Sweet v. Parsley [1969] 1 All E.R. 347. See also Brett, , “Strict Liability: Possible Solutions” (1974) 37 M.L.R. 417.CrossRefGoogle Scholar

32 Sweet v. Parsley (preceding note), at p. 349.

33 See supra text at nn. 10–15 dealing with Israeli case-law which recognizes the possibility of liability in tort for negligent misrepresentation causing economic damage. This case-law was based on the terms of the negligence section of the Civil Wrongs Ordinance. From its drafting it can be seen that, of the various trends reflected in relevant English case-law the local Ordinance chose that which imposes the widest liability for this civil wrong. See also “Infusion of the Common Law”, text at nn. 106–7.

34 For cases, see “Infusion of the Common Law” n. 239.

35 See id. text at nn. 84–9 (criminal law); text at nn. 129–144 (torts); text at nn. 268–271, 273–5 (contracts); and text at nn. 281–4 (unjust enrichment).

36 On this subject see Gorney, , “American Precedents in the Supreme Court of Israel” (1955) 68 Harv.L.R. 1194CrossRefGoogle Scholar; Apelbom, , “Common Law à l'Américaine” (1966) 1 Is.L.R. 562.Google Scholar

37 Apelbom, op. cit. at p. 565.

38 (1954) 8 P.D. 1317.

39 (1967) 17 P.D. 1319.

40 (1957) 11 P.D. 403. See also infra text at nn. 94–97.

41 Yafet v. Eastwood (1969) (I) 23 P.D. 601.

42 See also Abutbool v. Kliger (1965) (I) 19 P.D. 429, which rejected the view prevailing in the U.S. on the right of a consenting female minor to damages for statutory rape. The decision is discussed in Apelbom, op. cit. at p. 575. It was affirmed in (F.H.) (1966) (I) 20 P.D. 561.

43 For examples, see Apelbom, op. cit. at p. 567.

44 See examples cited id. at p. 566.

45 Kochavi v. Becker, supra n. 2, at p. 241, Apelbom op. cit. at p. 576.

46 Apelbom, op. cit. at pp. 572 and 578, n. 96.

47 See Gorney, op. cit. supra n. 36.

48 See Tedeschi, , “Art. 46 of the Palestine Order-in-Council and the Existence of Lacunae” in Le Problème des Lacunes en Droit (Perelman, ed., Bruxelles, 1968) 275.Google Scholar

49 (1971) (I) 25 P.D. 767.

50 Blilati v. Greek Catholic Educational Association (1971) (I) 25 P.D. 578, 585.

51 26 L.S.I. 204. The provision was formerly sec. 37 of the Tenants' Protection Law, 1955.

52 Sussmann, , “Some Problems of Construction” in Jubilee Book Dedicated to Pinhas Rosen (Jerusalem, 1963, in Hebrew) 147 at p. 156.Google Scholar On the question of whether in such a case the courts construe the law or fill a lacuna, see “Infusion of the Common Law”, text at nn. 223–6.

53 Buki v. Diamand (1959) 13 P.D. 1009, 1020.

54 Per Cheshin J. in Hananowitz v. Loewenhartz (1955) 9 P.D. 1901, 1904.

55 Nevertheless, despite the extensive case-law, difficulties in the construction of this section persist, and it is hard to speak of consistency or uniformity in the case law. Judge Beisky put it aptly when saying “A situation has been created which is particularly difficult for the litigants, in that they cannot even try to guess the outcome…as well as for the judge of first instance seeking guidance in the precedents which bind him.” in “Application of Equitable Remedies in the Face of Lease Forfeiture” (1967) 23 HaPraklit 238, 246.

56 See “Infusion of the Common Law” text following n. 162; Bentwich, , “The Migration of the Common Law” (1960) 76 L.Q.R. 39, 64 (chapter on Israel).Google Scholar

57 See Griffith, & Street, , Principles of Administrative Law (4th ed., London, 1967) 3Google Scholar: “The study of administrative law in this country has not yet recovered fully from Dicey's denial of its existence”, and de Smith, , Judicial Review of Administrative Action (2nd ed., London, 1968).Google Scholar In recent years however, there have been important developments in administrative law in England. In the third edition of his book (1973) Prof. de Smith notes (at p. 4) that the words “asymmetrical hotchpotch”, which he used in the second edition to describe this branch of law, are no longer apt.

58 In England, statutes of constitutional nature, including the Bill of Rights, can be amended or repealed by Parliament in the same way as any other statute. See Wade, , Administrative Law (3rd ed., 1971) 9, 323Google Scholar; Wade, and Phillips, , Constitutional Law (8th ed., 1970) 46.Google Scholar

In Israel five Basic Laws have thus far been enacted. Not a single one of them attempts to regulate the subject of civil rights (see also infra n. 77). Three of these laws deal with State institutions: the Knesset (1958), the President of the State (1964) and the Government (1968). The fourth law (dated 1960) relates to public lands and the fifth law (dated 1975) deals with State finance. Basic Law: The Knesset contains several “entrenched” provisions, as well as a provision to the effect that it cannot be suspended or amended by emergency regulations. A similar provision regarding emergency regulations is also included in Basic Law: The Government and Basic Law: The President of the State.

The status of the Basic Laws and the question whether the Knesset can bind itself have been extensively discussed. In Bergmann v. Minister of Finance (1969) (I) 23 P.D. 693, a provision of law which dealt with allocation of funds among lists of Knesset candidates was held invalid on the grounds that the provision denied funds to new parties and thus impaired the principle of equality required by sec. 4 of Basic Law: The Knesset. See Rubinstein, , Constitutional Law (2nd ed., 1974, in Hebrew) 274et seq.Google Scholar; Klein, , “A New Era in Israel's Constitutional Law” (1971) 6 Is.L.R. 376Google Scholar; “Judicial Review of Statute” (1969) 4 Is.L.R. 559, 565 (per Elman), 568 (per Klein), 576 (per Akzin); Nimmer, , “The Uses of Judicial Review in Israel's Quest for a Constitution” (1970) 70 Col. L.R. 1217CrossRefGoogle Scholar; Sheftler, , “Reflections on Constitutional Questions” (1970) 26 HaPraklit 6.Google Scholar See also Zemach, , “The Manner of Creating the Power of Judicial Review” (1975) 29 HaPraklit 515.Google Scholar

59 A decision of the High Court, like any other Supreme Court decision when rendered by a bench of three Justices, may, however, be subject to a Further Hearing.

60 Thus, in 1972 alone there were 517 cases decided in the High Court of Justice. See Central Bureau of Statistics, Judicial Statistics (Jerusalem, 1973) 81.Google Scholar

61 Constitutional or administrative law questions may also arise in other courts. See infra nn. 102–3, and accompanying text. But the High Court has fulfilled the primary function of adjudication in the area of public law.

62 An examination of one volume of the Supreme Court Reports (Piskei Din) chosen at random (the volume is 21(1)) indicates that in the 28 High Court decisions published, only 5 English cases were cited. On the other hand, in the other 101 Supreme Court decisions reported in the same volume as many as 147 English cases were cited. However, English texts in this field, such as de Smith, Judicial Review of Administrative Action, Wade, Administrative Law and Griffith and Street, Principles of Administrative Law, are frequently cited.

63 See the opinion of Landau J. quoted infra n. 72. This shift is surely desirable when compared with the English approach described by Wade, op. cit. n. 58, at p. 107: “[T]he Courts seem sometimes more at ease in considering ‘whether certiorari will lie’ than in revealing the general principles which ought to govern judicial intervention”.

64 See, in general, Shapira, , “The Status of Fundamental Individual Rights in the Absence of a Written Constitution” (1974) 9 Is.L.R. 497.Google Scholar See also Nimmer, supra n. 58, at p. 1224 et seq.

65 Bejarano v. Minister of Police (1949) 2 P.D. 80, 83; Bikel v. Minister of Agriculture (1974) (II) 28 P.D. 827 (See (1975) 10 Is.L.R. 399). See also Klinghoffer, , “Freedom of Trade and Licensing of Business” (1973) 3 Iyunei Mishpat 582.Google Scholar

66 Cargo & Freight Ships v. Finance Minister (1957) 11 P.D. 1490, 1498. In this case the Ministries of Finance and of Commerce and Industry had made the granting of import licences conditional upon the use by the importer of the cargo ships of certain companies. These conditions were held invalid because they interfered with the rights of other carriers. The contention that the Government of Israel possessed power similar to the prerogative of the Crown in matters of foreign commerce was rejected. Id. at p. 1499. On development of the case law in this area, see Klinghoffer, supra n. 65.

67 Kol Ha'am v. Minister of Interior (1953) 7 P.D., 871. And see Gorney, supra n. 36, and Harnon, , “Free Speech in Matters that are Sub Judice” (1966) 1 Is.L.R. 151.Google Scholar

68 Registrar of Corporations v. Kardosh (F.H.) (1962) 16 P.D. 1209; and Gross, , “The Right of Incorporation” (1972) 2 Israel Yearbook on Human Rights 277.Google Scholar

69 City of Tel Aviv v. Lubin (F.H.) (1959) 13 P.D. 118; Reich v. Director of Division of Antiquities (1970) (I) 24 P.D. 204.

70 Peretz v. Kfar Shmariyahu (1962) 16 P.D. 2101.

71 Alkoori v. Chief of Staff (1950) 4 P.D. 34.

72 Rubinstein, supra n. 58, at p. 165. And see the opinion of Landau J. in Bergmann v. Minister of Finance, supra n. 58, at p. 698: “It [the fundamental principle of equality before the law] can exist also on its own, without reliance upon a constitutional provision which explicitly sets forth the principle of equality before the law. We have no such express section, neither in a written constitution nor in an “entrenched” section of a Basic Law. But, even so, this unwritten concept has breathed life over our entire legal system”. See also Landau, , “Rules and Discretion in the Law-Making Process” (1969) 1 Mishpatim 299, 305.Google Scholar

73 Rehovot Packing House v. Minister of Agriculture (1962) 16 P.D. 20, 27. On this subject see Zamir, , “The Law of Public Tenders” (1964) 20 HaPraklit 226, 403Google Scholar, and Friedmann, , “Application of the Public Law Duties on Public Bodies Acting in the Private Sphere” (1973) 5 Mishpatim 598.Google Scholar

74 Supra n. 70.

75 Id. at 2115.

76 Cohen v. Minister of Defence (1969) 16 P.D. 1023, 1027. The case involved a journalist's “right” to be accepted by the army as a military journalist and to enjoy attendant privileges, such as participation in tours of study, meetings with army officials and visits to army installations. The High Court was, however, unwilling to recognize that a “right” entitled to judicial protection was at issue.

77 The adoption of a Bill of Rights in Israel has been advocated for some time. Prof. Klinghoffer has drafted a proposed Bill of Rights. Prof. Akzin prepared A Draft Constitution for the State of Israel (1963, in Hebrew) which includes a chapter on civil rights, and a Parliamentary sub-committee has been working on the preparation of a Basic Law on this subject for over five years. See also Livneh, , “Basic Law: Human Rights Bill” (1974) 5 Mishpatim 703Google Scholar; Klein, , “The Human Rights Bill: The Constitutional and Formal Aspects” (1974) 5 Mishpatim 696Google Scholar; and Shapira, and Bracha, . “The Constitutional Status of Individual Freedoms” (1972) 3 Israel Yearbook on Human Rights 211.Google Scholar Serious reservations were, however, voiced by Landau, J. in “Constitution as a Supreme Law of the State?” (1971) 27 HaPraklit 30.Google Scholar

78 See e.g., the Supreme Court's remarks on the Sports Betting Regulations Law, 1967 in Israel Football Pools v. Council to Regulate Sports Wagering (1968) (I) 22 P.D. 683. Cf. also Nimmer, supra n. 58, at p. 1224 et seq.

79 Thus, in Troodler v. Agricultural Councils Election Officials (1963) 17 P.D. 2503, 2513, Berinson J. stated: “We were never bound to follow English rules relating to prerogative remedies…”.

80 Buchmann v. Commissioner of Haifa Region (1950) 3 P.D. 182, 187.

81 The following words of Landau J. in his article, supra n. 72, at p. 302 are illustrative; “We have been freed to a great extent from the limitations which the ancient forms of prerogative writs imposed on the court's jurisdiction. We no longer waste our energies in analysis of the historical meanings of mandamus, certiorari, prohibition…”.

82 R. v. Northumberland Compensation Appeal Tribunal [1952] 1 K.B. 338. For a discussion of this principle and its historical source, see de Smith, supra n. 62, (3rd ed., 1973) at p. 358.

83 Troodler v. Agricultural Councils Election Officials, supra n. 79. And see notes on this decision: Rubinstein, , “Another Step Toward Broadening Jurisdiction of the High Court” (1964) 20 HaPraklit 197Google Scholar; Zamir, , “The Difference Between an Appeal and a Petition to the High Court” (1964) 20 HaPraklit 205.Google Scholar See also City of Petah Tikva v. Tahan (1969) (II) 23 P.D. 398, 403.

84 As to the English law see de Smith, supra n. 62, (3rd ed., 1973) at p. 264.

85 (F.H.) (1962) 16 P.D. 1209.

86 Id. at p. 1218, and see Gross, supra n. 68. The Attorney General's reliance on the English decision of Liversidge v. Anderson [1942] A.C. 206 was of no avail.

87 Oppenheimer v. Minister of Interior and Health (1966) (I) 20 P.D. 309, 329. See Comments in (1966) 1 Is. L.R. 479, 483. It is interesting that in the absence of an English precedent the court turned to a decision of the French Conseil d'Etat. See also Barak, , “The Duty to Establish General Norms” (1966) 22 HaPraklit 292Google Scholar and Israel Engineers and Architects Ass'n. v. Minister of Labour (1969) (I) 23 P.D. 132.

88 The question of justiciability was first raised in Jabotinsky v. President of the State (1951) 5 P.D. 801, in which the petitioners sought to require the President of the State to approach members of the Knesset, one by one and give each in turn the task of forming a government, until one member eventually succeeded in forming a government that would enjoy a vote of confidence. Smoira P. raised the question (id., at p. 813) of “whether the petitioners have presented the Court with a justiciable matter” and in reliance upon American decisions, he answered: “Generally anything touching on the task of forming a government pursuant to sec. 9 of the Transition Law… is non-justiciable … These are relationships which are outside the scope of the judiciary”. (Id. at p. 814). Since then the concept has been subjected to considerable criticism in Israel. See Witkon, , “Justiciability” (1966) 1 Is. L.R. 40Google Scholar and Politics and Law (Hebrew Univ. & Israel Bar Publs., 1968, in Hebrew). Silberg J. has said of it: “I have never comprehended the nature of this monstrous embryo (Oppenheimer v. Ministers of Interior and Health, preceding note, at p. 328). Nevertheless this was not the end of the “monstrous embryo” in Israeli case-law. The question arose again in Shalit v. Minuter of the Interior (1969) (II) 23 P.D. 477, in National Circles v. Minister of Police (1970) (II) 24 P.D. 141 (discussed in Klein, , “The Temple Mount Case” (1971) 6 Is.L.R. 257Google Scholar) and in Abu Hilu v. Government of Israel (1973) (II) 27 P.D. 169 which involved removal of Beduin from the Rafiah Approach by the Defence Forces (discussed in Zemach, , “The Non-Justiciability of Military Mea sures” (1974) 9 Is.L.R. 128Google Scholar). In this last case it was precisely Witkon J. who accepted the argument of non-justiciability, saying: “The other questions raised by the petitioners … I believe we need not answer … for the matter is non- justiciable … even according to those (myself included) who do not hasten to exclude political matters from the threshold of the court. However, matters of the army and defence, as well as matters of foreign policy, are not suitable for determination by the judicial authorities”. The question of justiciability could have been the central issue in the famous case of Bergmann v. Minister of Finance (supra n. 58). The Attorney General did not raise the question which was consequently left undecided. It should be stressed that when a court holds a matter to be non-justiciable, it does not mean that there has been no decision: the complaint or petition is dismissed on the ground of non-justiciability. Cf. also “Infusion of the Common Law” at n. 212.

89 Altagar v. City of Ramat Gan (1966) (I) 20 P.D. 29. But this rule might not apply if the employee were dismissed not for some fault of his, but because his place of work was closed down. Id. at pp. 38–9.

90 City of Petah Tikva v. Tahan, supra n. 83. Cf. also Wade supra n. 58 at p. 204.

91 Rubinstein, supra n. 58, at p. 193.

92 Bat-Galim Ltd. v. Bat-Galim Sea-Shore Industries (1955) 9 P.D. 775; Van Mirop v. Director of Housing Department (1957) 11 P.D. 659, 666. The source of sec. 42 is English law. On this subject see Mizrahi, , “Sec. 42 of the Interpretation Ordinance: State Privilege” (1973) 5 Mishpatim 135, 388Google Scholar; Potchebutzky, , “Is the State Subject to the Rule of Law?” (1974) 9 Is.L.R. 369.Google Scholar

93 Rubinstein, supra n. 58, at p. 194 and n. 118.

94 Id., at p. 221.

95 (1957) 11 P.D. 403.

96 [1942] A.C. 624.

97 The House of Lords also determined subsequently not to follow the case of Duncan. See Conway v. Rimmer [1968] A.C. 910. The Supreme Court of Israel, however, preceded the English development by more than ten years. The Israeli rule was in the meantime confirmed by statute: the relevant provisions are to be found in secs. 44–46 of the Evidence Ordinance [New Version]. These provisions apply even where the Prime Minister or Minister of Defence has certified that disclosure is likely to effect the security of the State, except that in such a case the decision whether to admit the evidence is left to a Justice of the Supreme Court (and not to the trial judge before whom the objection was taken and the trial is still pending). On the other hand, if privilege is claimed on the ground that introduction of the evidence “is liable to affect an important public matter”, the court before which the action is pending may make the determination itself. On this matter see Rubin, , “The Law of Evidence (Amendment) Law, 5728–1968” (1959) 1 Mishpatim 463, 465–68.Google ScholarCf. Ginossar, , “Can Political Agitation in the Dock Be Stifled on the Ground of State Privilege?” (1974) 9 Is.L.R. 437.Google Scholar

98 These courts are competent to hear such a claim even though a question relating to public law may arise incidentally. See infra n. 103.

99 Negev Building and Development Ltd. v. Ministry of Defence (1974) (II) 28 P.D. 449, 456–457. For comment on this case, see Klein, “New Remedies in the High Court of Justice” infra p. 582 and see also Friedmann, , “Remedies for Breach of Contract” (1975) 1 Tel-Aviv Univ. Studies in Law 170, 195–96.Google Scholar

100 Negev Building and Development Ltd., supra n. 99, at p. 458.

101 Wade supra n. 58, at pp. 46–47. Though there are, of course, in England many statutory tribunals, see id., at p. 254 et seq.

102 See e.g., City of Ramat Gan v. Tik (1963) 17 P.D. 1262.

103 Similarly, ordinary courts are empowered to deal with questions in the area of public law when such questions arise incidentally in the course of a claim that lies within their jurisdiction. For example, when in a civil action against a governmental authority for injury of a plaintiff's person or property, the defendant raises a defence based on a rule of public law (such as that he acted by virtue of some power vested in him by statute) or when in a criminal action for violation of subsidiary legislation the defendant pleads invalidity of the regulations, or when an action is filed for refund of taxes unlawfully collected. In all these cases the ordinary court has to deal with the public law issues. In this framework, however, an ordinary court may not void an administrative act or decision which, because of some defect, is merely voidable but not void; and it will then be necessary to petition the High Court to nullify the act: City of Petah Tikva v. Tahan, supra n. 83, and Friedman v. City of Haifa (1970) (II) 24 P.D. 577. On this subject see Rubinstein, , “Jurisdiction of the High Court of Justice” (1971) 1 Iyunei Mishpat 261.Google Scholar

104 Zamir, , “On Justice in the High Court of Justice” (1970) 26 HaPraklit 212Google Scholar; Osnat, , “On Concepts of Justice in the High Court of Justice” (1971) 27 HaPraklit 243.Google Scholar

105 Landau, in his article cit. supra n. 72, at pp. 302–3.

106 Extensive legislation in other areas, such as the structure and institutions of the government, taxation, social welfare, labour law or military service, also exists, of course. Discussion of these areas is beyond the scope of this article.

107 During the period of the Mandate, we recall, it was primarily Ottoman legislation absorbed from the French source which was replaced, while most of the legislation in the area of land law, and civil law deriving from Moslem sources remained in effect.

108 See “Infusion of the Common Law”, text at n. 12 et seq.

109 As regards the Criminal Code Ordinance see id. text at nn. 95–97; as regards the Civil Wrongs Ordinance, see id. text at nn. 122–27 and addendum to this article. As regards the Motor Vehicle Insurance Ordinance see text infra at nn 157–58. The Partnership Ordinance, Bills of Exchange Ordinance and Companies Ordinance remain almost unchanged.

110 See generally, Yadin, , “The New Version” (1972) 7 Is.L.R. 277.CrossRefGoogle Scholar

111 See “Infusion of the Common Law”, text at nn. 40–49.

112 A number of principles and ideas, however, reflected in Ottoman laws were later incorporated in Israeli legislation. See “Remnants of the Ottoman Period” text at nn. 24–27, 67–69; and “Infusion of the Common Law”, text at nn. 30–39; and text infra at nn. 151–153.

113 Procaccia, , “Israeli Legislation by Stages: Comment and Criticism” (1971) 1 Iyunei Mishpat 41Google Scholar and see The Symposium on Codification of the Civil Law published in (1975) 1 Tel Aviv Univ. Studies in Law 9 et seq.

114 This proposal has been called unnecessarily sweeping. Tedeschi, , “Repeal of the Mejelle—its Background and Timing” (1972) 2 Iyunei Mishpat 458.Google Scholar

115 The possibility still exists that English law may be absorbed by virtue of Art. 46 of the Palestine Order-in-Council in order to fill lacunae in Israeli legislation as it served in the past to complete Ottoman legislation, but a number of the new statutes expressly provide that Art. 46 shall not apply to them. The question of the continuation of the ties to English law will be discussed below.

116 This term was proposed by Procaccia, supra n. 113.

117 See the opinion expressed by Asa'd Bei, Minister of Justice in Turkey in 1923, quoted in Malchi, The History of Law in Israel (2nd ed., 1953, in Hebrew) 74.

118 They are: the Succession Law, 1965 (19 L.S.I. 58); Agency Law, 1965 (19 L.S.I. 231); Bailees Law, 1967 (21 L.S.I. 49); Pledges Law, 1967 (21 L.S.I. 44); Guarantee Law, 1967 (21 L.S.I. 41); Gift Law, 1968 (22 L.S.I. 113); Sale Law, 1968 (22 L.S.I. 107); Land Law, 1969 (23 L.S.I. 283); Transfer of Obligations Law, 1969 (23 L.S.I. 277); Movable Property Law, 1971 (25 L.S.I. 175); Contracts (Remedies for Breach of Contract) Law, 1970 (25 L.S.I. 11); Hire and Loan Law, 1971, (25 L.S.I. 152); Contracts (General Part), Law 1973 ((1974) 9 Is.L.R. 282); Return of Lost Property Law, 1973 (S.H. no. 702, p. 172); Financial Relations Between Spouses Law, 1973 (S.H. no. 712, p. 267); Contract for Services Law, 1974 (S.H. no. 742, p. 110) and see infra Comment on this Law by Prof. Yadin with English translation of the Law appended, infra p. 569 et seq. A number of important statutes were passed before 1965, among them the Capacity and Guardianship Law, 1962 (16 L.S.I. 106) and the Standard Contracts Law, 1964 (18 L.S.I. 51), but it seems that their enactment was not part of the general project to create a code which will embrace the whole area of civil law. See Procaccia, supra n. 113, and in general, The Symposium on Codification of the Civil Law, supra n. 113.

119 Procaccia supra n. 113 at p. 42.

120 On the absence of general principles and definitions of legal concepts, see Englard, , “The Capacity and Guardianship Law, 1962” in Commentary on the Law of Contracts (Tedeschi, ed., Jerusalem, 1972, in Hebrew)Google Scholar and Barak, , “Towards Codification of the Civil Law” (1975) 1 Tel Aviv Univ. Studies in Law 9, 20.Google Scholar

121 See introductory material to the Bill (1970) H.H. no. 880 pp. 127 and 132.

122 Cf. also Procaccia, supra n. 113, at p 43.

123 E.g., Land Law, 1969.

124 E.g., Hire and Loan Law, 1971.

125 Sale (International Sale of Goods) Law, 1971. The notice on the effective date of the statute (18 August, 1972) was published in (1973) K.T. no. 2970. On the international unification of private law see David, René, International Encyclopedia of Comparative Law Vol. II Chap. 5. The Hague Convention, 1964Google Scholar is discussed at p. 136 et seq.

126 See Zeltner, , “The Sale Law, 1968” in Commentary on the Law of Contracts (Tedeschi, ed., Jerusalem, 1972, in Hebrew) 9.Google Scholar

127 The Sale Law itself contains a chapter on remedies, but sec. 27 of the statute provides that “the provisions of this chapter shall be in addition to any other law relating to remedies for breach of contract”. The provisions of the Remedies Law thus apply also to sales.

128 The Uniform Laws were also influenced by other sources, including Scandinavian legislation. See Zeltner supra n. 126, at pp. 8–9 and Schmidt, , “The International Contract Law in the Context of Some of Its Sources” (1965) 14 A.J.I.L. 1.Google Scholar

129 The provisions of Chap. IV of the Contracts Law, on contracts for the benefit of third parties, were apparently influenced by the relevant provisions of the B.G.B. The influence of German law is also noticeable in the Agency Law, 1965. See Barak, , Agency Law, 1965 (1975, in Hebrew) 4.Google Scholar The Financial Relations Between Spouses Law, 1973 which adopted the matrimonial regime of deferred community of surplus provides another striking example of the influence of German law. This will be discussed below.

130 Burrows, , “Contractual Co-operation and the Implied Term” (1968) 31 M.L.R. 390, 405CrossRefGoogle Scholar and Kessler, & Gilmore, , Cases and Materials on Contracts (2nd ed., Boston, 1970) 912et seq. Sec. 1–203Google Scholar of the U.S. U.C.C, contains a provision in regard to the requirement of good faith. Prior to enactment of legislation in this matter in Israel, the question was raised in the courts. In at least one case the court was inclined to recognize the requirement of good faith: Edni v. Cohen (1969) (I) 23 P.D. 142, and see the minority opinion in Mishol Hakrach, Ltd. v. Grubner (1970 (II) 24 P.D. 692, 702 and Zeltner, , “Abuse of Rights” (1970) 2 Mishpatim 465, 478.Google Scholar

131 Cohn, , Manual of German Law (2nd ed., London, 1971) 96.Google ScholarZeltner, , “Reflections on the Contracts Law (General Part), 1973” (1975) 1 Tel Aviv Univ. Studies in Law 153.Google Scholar

132 See Even, , “Culpa in Contrahendo” (1971) 1 Iyunei Mishpat 328Google Scholar, and Zeltner, supra n. 131, at p. 164 et seq.

133 Cf. Esso Petroleum Co. Ltd. v. Mardon [1975] 1 All E.R. 203.

134 During the Mandate it was held that the legal institution of private trust was not absorbed into local law. It seems, however, that the Supreme Court of Israel might adopt a different approach and in the recent case of Inzel v. Kugelmass (1975) (I) 28 P.D. 663, 666 Cohn J. stated that the Supreme Court has already recognized the existence of private trust in Israeli law. But it seems that the question cannot yet be regarded as finally settled. See “Infusion of the Common Law” at nn. 293, 294.

135 Shilo, , “Let Us Have Jewish Law” (1968) 24 HaPraklit 363Google Scholar, and Shilo, , “The Problem of Reference to English Law—The Proposed Law and Administration Ordinance (Amendment No. 14) Law 1971” (1972) 2 Iyunei Mishpat 192.Google Scholar

136 Ginossar, , “Israel Law: Components and Trends” (1966) 1 Is.L.R. 380.Google Scholar

137 On this problem, see Englard, , “The Problem of Jewish Law in a Jewish State” (1968) 3 Is.L.R. 254.CrossRefGoogle Scholar See also Elon, , Religious Law in Israel Legislation and in the Jurisdiction of the Secular and Rabbinical Courts (Tel Aviv, 1968, in Hebrew)Google Scholar and “The Sources and Nature of Jewish Law and its Application in the State of Israel” (1967) 2 Is.L.R. 515; (1968) 3 Is.L.R. 88, 416; (1969) 4 Is.L.R. 80.

138 Sassoon, , “The Israel Legal System” (1968) 16 A.J.C.L. 405, 413.CrossRefGoogle Scholar

139 (1962) 16 P.D. 2428, (1971) S.J. Special Volume, p. 1.

140 (1969) (II) 23 P.D. 477, (1971) S.J., Special Volume, p. 35; and see Akzin, , “Who is a Jew? A Hard Case” (1970) 5 Is.L.R. 259.CrossRefGoogle Scholar

141 There were actually ten Supreme Court Justices, but sec. 3(1) of the Courts Law, 1957, requires that the number of Justices sitting in any matter be an odd number.

142 In the wake of Shalit there was enacted the Law of Return (Amendment No. 2) 1970, which also amends the Population Registry Law. The added sec. 4B provides that for the purposes of this Law “Jew” means a person who was “…born of a Jewish mother or has become converted to Judaism and who is not a member of another religion”. Subsequent to enactment of this amendment, another son was born to Mr. Shalit. Since the amendment precluded registration of this child's nationality as Jewish, Mr. Shalit sought to have him registered as of the Hebrew nation. The request was denied, as was his petition to the High Court. See Shalit v. Minister of Interior (1972) (I) 26 P.D. 334.

143 (1971) (I) 25 P.D. 488.

144 Id. at p. 492. See also Deutsch, , “Assuming an Obligation in Jewish Law” (1972) 3 Dinei Yisrael 207Google Scholar, explaining the meaning of the term “Gmirat da'at” (a resolve or “the making up of one's mind”) taken from Jewish law. The same term has been used in sec. 2 of the Contracts (General Part) Law 1973, which provides that “An application by one person to another constitutes an offer if it evidenced the offeror's resolve (gmirat da'at) to enter into a contract with the offeree.…”.

145 Procaccia, , The Agency Law, 1965 (1975, in Hebrew) 21–23, 49Google Scholar; Barak, , Agency Law, 1965 (1975, in Hebrew) 87–88.Google Scholar Both authors express the opinion that this maxim ought not to be construed in accordance with Jewish law.

146 Halsbury, , Laws of England, vol. II, p. 95 (3rd ed., London, 1953).Google Scholar

147 (1703) 92 E.R. 107.

148 Houghland v. R. R. Low Ltd. [1962] 2 All E.R. 159, 161 (C.A.) (per Ormerod, L. J.); Wilkinson, , Personal Property (1971) 2–3Google Scholar; Friedmann, , “The Doctrine of Consideration in the New Israeli Legislation” (1973) 3 Iyunei Mishpat 153.Google Scholar

149 (1955) 9 P.D. 1401.

150 Yadin, , “The New Statute Law of Contracts” (1974) 9 Is.L.R. 512, 516.Google Scholar Sec. 31 also provides that if one party has already fulfilled his obligation under an illegal contract, the court may require the other party to perform his corresponding obligation. On this provision see Shalev, , “General Comments on the Contracts (General Part) Law, 1973” (1974) 9 Is.L.R. 274, 280–81.Google Scholar

151 This right is personal and does not accrue to their descendants. When the deceased leaves descendants and his parents are no longer alive, their other descendants (siblings of the deceased) do not take.

152 See “Remnants of the Ottoman Period”, text at nn. 26–7.

153 Moreover, when unsettled land is at issue and the other party believing himself in good faith to be the owner, made an investment which exceeds the value of the land, he may elect to purchase the land from its owner, provided however, that serious damage which payment of the value of the land cannot compensate will not be caused to the owner (sec. 23). It seems that the option granted to the bona fide builder was also influenced by Ottoman law.

For additional examples of Ottoman influence see references supra n. 112.

154 See supra n. 35 and accompanying text.

155 “Infusion of the Common Law”, text at nn. 282–3.

156 See supra text at nn. 95–97.

157 Carpenter v. Ebblewhite [1939] 1 K.B. 347; Harman v. Crilly [1943] 1 All E.R. 140.

158 Commercial Union v. Sar (1954) 8 P.D. 427.

159 Among them the principle of good faith in the law of contracts which was absorbed from German law, see supra text at nn. 129–132.

160 See Barak, , “Towards Codification of the Civil Law” (1975) 1 Tel-Aviv Univ. Studies in Law 9, 19–21.Google Scholar

161 Sec. 17(b) provides, however, that: “A warning in good faith of the exercise of a right is not a threat within the meaning of this section”. The section thus attempts to solve one of the questions raised in this area, but it is not clear why the legislator chose to answer this specific question and to leave the others to the courts.

162 See supra text at nn. 51–52.

163 For criticism of this, see Barak, op. cit., at p. 22; Weisman, , “The Land Law, 1969: A Critical Analysis” (1970) 5 Is.L.R. 379, 383 et seq.CrossRefGoogle Scholar; and Landau, , “Rules and Discretion in the Law-making Process” (1969) 1 Mishpatim 292, 297–8Google Scholar, who points out that discretion allowed to the court often indicates the legislator's desire to evade a determination of legal policy.

164 The Contracts (General Part) Law, for example, does not make the validity of a contract dependent upon consideration and recognizes the right of a third party beneficiary to demand performance. (See “Infusion of the Common Law”, text at n. 272). Similarly it recognizes the right of restitution as regards contracts void on the ground of illegality, subject to the court's discretion.

165 Yadin, , “The Contracts (Remedies for Breach of Contract) Law, 1970” Commentaries on the Law of Contract (Tedeschi, , ed., Jerusalem, 1973) 20–21.Google Scholar Admittedly, the injured party has no right to specific performance where “enforcement of the contract under the circumstances of the case is unjust” (sec. 3(4) of the Law). But, this does not detract from its being a remedy obtainable as of right, for even as regards damages the court has in some cases a wide measure of discretion, e.g., where there is other than pecuniary loss (sec. 13) or where consideration for the breached obligation was unreasonable or where there was no consideration at all (sec. 12). See Yadin supra, at p. 21, n. 63.

166 Boker v. Anglo-Israeli Co. Ltd. (1971) (II) 25 P.D. 121. Weisman, supra n. 163, at p. 383. However, where a statute recognizes an equitable right in land, it remains in force. Id. at pp. 383–85. See also Goldenberg, , “The Land Law, 1969: Transitional Provisions and Legacy of the Past” (1972) 2 Iyunei Mishpat 839, 848–49Google Scholar and Raveh, , “The Land Law Reflected in Judicial Interpretation and Acquisition of Rights in Good Faith under the Land Law” (1975) 1 Tel Aviv Univ. Studies in Law 118.Google Scholar

167 Sec. 9 of the Land Law provides an example of the influence exerted by the law of equity. This section reads: “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. A similar provision is included in sec. 12 of the Movable Property Law, 1971. On sec. 9 of the Land Law, see Weisman, supra n. 163, at p. 383 et seq. and Friedmann, , “Remedies for Breach of Contract” (1975) 1 Tel Aviv Univ. Studies in Law, 170, 179 et seq.Google Scholar

168 Boker v. Anglo-Israeli Co. Ltd. supra n. 166; and Yadin, , “Purchaser of an Apartment and Creditor of the Seller—Who Prevails?” (1972) 27 HaPraklit 471.Google Scholar In the wake of Boker the Land Law (Amendment No. 2), 1972 was enacted. See Raveh, supra n. 166, at pp. 118–19 and 127–28. See also infra n. 220 and accompanying text.

169 See e.g. Sale Law, 1968, ch. 3; Land Law, 1969 secs. 15–20.

170 Prof. Englard points out the difficulty of accommodating such provisions, which are based on the continental approach, with the provisions of the Civil Wrongs Ordinance, which are based on English law. See his article “Twenty Five Years of the Civil Wrongs Ordinance: Trends and Problems” (1973) 5 Mishpatim 564, 581 et seq.

171 E.g., Servitudes enumerated as rights in the Land Law. See Reichman, “Comments on the Definition of Easement” (1971) 1 Iyunei Mishpat 345Google Scholar; see also Friedmann, supra n. 167 at p. 177 et seq. and Ophir, M., “Comments on the Law of Servitudes in Israel” (1972) 7 Is.L.R. 528.CrossRefGoogle Scholar

172 Barak, supra n. 160, at p. 17. Ginossar, , “Particularisme et Particularités du Droit Commercial Israélien” (1974) Inchieste di Diritto Comparato 113.Google Scholar

173 See also sec. 79(a) which exempts leases not exceeding five years duration from the requirements of writing and registration.

174 Grossman & K.B.K. v. Biderman (1972) (II) 26 P.D. 781.

175 Secs. 1 and 2. But if the agreement is in writing and is entered into prior to or at the time of the marriage ceremony, verification by the registrar of the marriage may take place of certification by the court (sec. 2(c)).

176 “Infusion of the Common Law” text at n. 163.

177 See id., n. 164, where some details are given regarding additional religious courts which received recognition after the establishment of the State.

178 Yadin, , “The Succession Law as Part of the Israeli Civil Law Legislation” (1975) 1 Tel Aviv Univ. Studies in Law 36, 37.Google Scholar

179 See Rubinstein, , Constitutional Law (2nd ed., 1974, in Hebrew) 184.Google Scholar

180 Under Jewish law the wife's property is generally “melog” except: 1) property called tson barzel, which according to agreement with the husband is transferred to his ownership. This property reverts to the wife upon dissolution of the marriage, and the husband is responsible for its value as of the date when he received it; 2) property received by the wife during the subsistence of the marriage as a gift and upon the condition that the husband would have no right in it.

181 Sides v. President of the High Rabbinical Court (1958) 12 P.D. 1528; Cohen v. Cohen (1971) (II) 25 P.D. 327 and Falk, , “Women's Equal Rights” (1972) 7 Is.L.R. 313.CrossRefGoogle Scholar

182 Still, exclusive jurisdiction of these courts is narrower than that of Moslem religious courts. Rubinstein, op. cit., at p. 111.

183 However, where the claim for maintenance is connected with a claim for divorce, the Rabbinical Courts have exclusive jurisdiction, see Shawa, , “Will the Race for Attracting the Jurisdiction in Maintenance Matters to the District or Rabbinical Courts Ever Cease?” (1972) 2 Iyunei Mishpat 719.Google Scholar

184 See the opinion of Landau J. in Zemouloon v. Minister of Interior (1966) (IV) 20 P.D. 645, 667.

185 Skornik v. Skornik (1954) 8 P.D. 141. But see n. 183 supra.

186 On this statute see Shawa, , “Application of the Provisions of the Family Law Amendment (Maintenance) Law, 5719–1959 to Support of the Spouse and Minor Children” (1973) 3 Iyunei Mishpat 337.Google Scholar

187 On this law see Yadin, supra n. 178; Shilo, , “The Succession Law, 1965, as Reflected in Court Decisions” (1975) 1 Tel Aviv Univ. Studies in Law 46Google Scholar; Elman, , “The Succession Law, 1965: A Lustrum” (1972) 7 Is.L.R. 286.CrossRefGoogle Scholar

188 Friedmann, , “The Unmarried Wife in Israeli Law” (1972) 2 Israel Yearbook on Human Rights 287.Google Scholar See also Shawa, , “The Unmarried Wife—Definition, Status and Rights” (1973) 3 Iyunei Mishpat 484.Google Scholar

189 This principle was first introduced in Sweden, see Sussmann, , “Spouses and Their Property under Swedish Law” (1963) 12 A.J.C.L. 533Google Scholar, and was adopted in Germany in 1957. But it seems that it was the German legislation on the subject which directly influenced the framers of the Israeli law. The Israeli Bill is discussed in Livneh, , “Financial Relations in Marriage” (1971) 3 Mishpatim 570.Google Scholar

190 As to the possible effect of this Law on the Moslem population, see Meron, , “Financial Relations Between Moslem Spouses” (1973) 3 Iyunei Mishpat 279.Google Scholar (The article was written before the enactment of the Financial Relations Between Spouses Law and refers to the Bill on this law).

191 On this subject see Doukhan-Landau, , “Husband and Wife as Co-Owners of Immovable Property” (1971) 6 Is.L.R. 487Google Scholar and Weisman, , “Can A Spouse Confer A Better Title than He Possesses?” (1972) 7 Is.L.R. 302.CrossRefGoogle Scholar

192 Berger v. The Director of Estate Duty (1965) (II) 19 P.D. 240; Briker v. Briker (1966) (I) 20 P.D. 589. Bareli v. The Director of Estate Duty (1969) (I) 23 P.D. 393; Levy v. Goldberg (1970) (I) 24 P.D. 813.

With regard to the question whether such presumption may apply against a third party or in his favour (where for example, the third party is a creditor of the unregistered spouse) see the Bareli and Levy cases, and cf. Efta v. Efta (1971) (I) 25 P.D. 561, 572 and Weisman (preceding note).

193 Pettit v. Pettit [1970] A.C. 777, Gissing v. Gissing [1971] A.C. 886.

194 Efta v. Efta (1971) (I) 25 P.D. 561.

195 Globa v. Globa (1972) (II) 26 P.D. 574, Sapir v. Asher (1974) (II) 28 P.D. 153.

196 This question arises with regard to spouses who are not subject to the new matrimonial regime provided under the Financial Relations Between Spouses Law. See sec. 14 of the law referred to supra.

197 On this question see Raveh supra n. 166, at pp. 128–130, Weisman supra n. 191, at p. 306 and Doukhan-Landau supra n. 191, at p. 507 et seq.

198 As to the jurisdiction of the High Court of Justice see “Infusion of the Common Law” text at n. 162 et seq. and supra text at nn. 56 et seq. and 79–83.

199 Baria v. Sharia Court of Acre (1955) 9 P.D. 1193, Sides v. President of the High Rabbinical Court (1958) 12 P.D. 1528, Nassar v. The High Rabbinical Court of Appeal (1972) (I) 26 P.D. 403, 407. It has also been held that in case of infringement of the principles of natural justice the decision rendered is invalid for want of jurisdiction: Levi v. Rabbinical Court (1959) 13 P.D. 1182. See also supra n. 90 and cf. Wade, , Administrative Law (3rd ed., 1971) 204.Google Scholar

200 See Cohen J. in his dissenting opinion in Joseph v. Joseph (1970) (I) 24 P.D. 792, 809; Rubinstein, supra n. 58, at p. 189, n. 104; Rozen-Zwi, , “Is a Religious Court Bound by the High Court Construction of Secular Law Specifically Referred to Such Court?” (1972) 2 Iyunei Mishpat 524, 526.Google Scholar

201 The duty of maintenance to certain members of the family is, however, regulated by secular legislation. See supra at text n. 186.

202 But, as already noted, this right was abolished by the Women's Equal Rights Law.

203 Rozen-Zvi, , “Financial Relations between Spouses” (1973) 3 Iyunei Mishpat 302, 305Google Scholaret seq. Cf. also Falk, supra n. 181.

204 Rubinstein, supra n. 58, at p. 174 et seq. Bracha, , “Personal Status of Persons Who Do Not Belong to a Recognized Religious Community” (1971) 1 Iyunei Mishpat 156Google Scholar and see generally Rubinstein, , “The Right to Marriage” (1973) 3 Iyunei Mishpat 433.Google Scholar

205 Another difficulty arises from the fact that arts. 64 and 65 of the Order-in-Council deny local courts the competence to issue a judgment of dissolution of marriage to a foreign national (a limitation which does not apply to Moslem courts).

206 See Shawa, , “The Matters of Dissolution of Marriage (Jurisdiction in Special Cases) Law, 1969” (1971) 26 HaPraklit 302Google Scholar, and authorities cited id. n. 1; Shiftman, , “The Matters of Dissolution of Marriage (Jurisdiction in Special Cases) Law, 5729–1969” (1970) 2 Mishpatim 690.Google Scholar

207 See Shawa, op. cit., at p. 311.

208 If both are subject to the same religious court's jurisdiction, the question does not arise, of course, for the statute does not apply.

209 (1971) H.H. no. 963, p. 316.

210 They are the Civil Wrongs Ordinance, Criminal Code Ordinance, Bills of Exchange Ordinance, Partnership Ordinance, Companies Ordinance and Bankruptcy Ordinance.

211 Law and Administration Ordinance (Amendment No. 14) Law, 1972. On this subject see Procaccia, “Principles of Construction of Israeli Law, Especially the Law of Contracts With Reference to English Law” (1975) 1 Tel Aviv Univ. Studies in Law 142, 144 et seq. Prof. Procaccia raises the question whether this amendment applies to that provision in the Partnership Ordinance which deals not merely with construction but with the application of English rules of common law and equity to partnerships. Indeed, the provision dealing with application of English law to partnerships was included in the New Version of this Ordinance issued in July 1975, while the reference to English law for the purpose of construction was omitted.

212 Prof. Yadin would say: “no”. See Yadin, , “How Shall the Bailees Law be Construed?” (1969) 24 HaPraklit 493.Google Scholar But this view has been criticized: See Shilo, , “How Shall the Bailees Law be Construed?” (1970) 25 HaPraklit 102.Google Scholar See also Tedeschi, , “On the Gift Law” (1969) 1 Mishpatim 639Google Scholar, and Procaccia, , “Israeli Legislation by Stages: Comment and Criticism” (1971) 1 Iyunei Mishpat 41, 45.Google Scholar

213 Friedmann, “The Provision Regarding Autarky of the Law and the Problem of Lacunae in the New Israeli Legislation” (1973) 5 Mishpatim 91.Google Scholar

214 Barak, , “Comment on the Provision Regarding ‘Autarky of the Law’ and the Problem of Lacunae in Modern Israeli Legislation” (1973) 5 Mishpatim 99.Google Scholar Nevertheless Israeli legislation contains no directive to the court as to how to act in the case of a lacuna—assuming that it may not turn to English law. See Barak at p. 104, n. 25, who suggests the use of analogy.

215 (1970) (I) 24 P.D. 657, 660.

216 The effect of the Succession Law on the ties to English law in this area is discussed in Elman, supra n. 187, at p. 289 et seq.

217 (1972) (II) 26 P.D. 781.

218 The court also referred to sec. 161 of the Law entitled “no equitable rights”. With regard to this section, see supra, text at n. 166.

219 (1972) (II) 26 P.D. 769.

220 Land Law (Amendment No. 2) 1972, sec. 5.

221 (1972) (II) 26 P.D. 745.

222 Id. at p. 748.

223 Subject to some important modifications, this Law adopts the relevant part of the Berinson Committee. See P.E., “Report of the Committee for Simplifying and Improving Procedures in Claims in Tort” (1973) 8 Is.L.R. 296.Google Scholar For a discussion of the Bill to this Law, see Englard, , “Reform of the Automobile Accident Compensation System” (1974) 9 Is.L.R. 234.Google Scholar

224 The Law does not apply to property damage. Hence, claims for such damage will continue to be governed by the Civil Wrongs Ordinance and will in most cases be decided in accordance with the principles of the tort of negligence.

225 As a member of the Berinson Committee the present writer pointed out, in his reservations, that the imposition of strict liability upon drivers and owners of motor vehicles would result in the considerable increase of payments made to traffic victims, the cost of which would (under the Committee's proposals) be borne by owners of motor vehicles. It was submitted that owners of motor vehicles should not be saddled with such an additional burden and the reduction of damages was suggested as one of the possible ways of mitigating the problem. However, the committee's recommendations tended, on the whole, to increase damages (p. H/l to the report); see also P.E., supra n. 223, at p. 297. The introduction, in the Compensation for Traffic Victims Law, of these ceilings on the amount of damages was, presumably, to counter such objections.

226 Such persons are entitled to claim damages under the Civil Wrongs Ordinance.

227 This Fund will replace the Fund established by agreement between the insurance companies and the insurance companies association for similar purposes. The undertakings assumed by the insurance companies Fund do not correspond to and are generally more limited than those imposed upon the new Fund established by the Law.

228 In case of an accident between two motor vehicles it is not altogether clear whether the injured driver should direct his claim against the other driver or against his own insurer. The Berinson Committee recommended that in such a case liability be imposed on the other driver (pp. 9 and 10 of the Committee's report). If, however, the provision referred to above, under which each driver is liable to the passengers in his own vehicle, means that he is not liable to the passengers (including the driver) of the other vehicle, then the injured driver's claim should be against his own insurer. See Englard supra n. 223, at p. 439.

229 Ibid., at p. 434.