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Infusion of the Common Law into the Legal System of Israel*

Published online by Cambridge University Press:  12 February 2016

Daniel Friedmann
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Extract

At the end of the Ottoman rule the legal system in Israel was ripe for change. The British conquest was welcomed, at least by the Jewish population, and under the circumstances there was no objection to absorbing the legal system of the new conqueror.

British conquest in 1917 brought military rule but by 1920 a civil administration headed by High Commissioner Sir Herbert Samuel had already been installed. On July 24, 1922 the League of Nations bestowed upon Britain the Mandate over Palestine, and less than a month thereafter, on August 10, 1922, the Palestine Order-in-Council was enacted. This legislation was designed to serve as a “Constitution” for Mandatory Palestine. It established institutions of the Government—the executive authority, the legislative branch, the judiciary—and defined their powers. In particular, the sources of law to be applied by the civil courts were enumerated in Art. 46, while matters of personal status jurisdiction remained vested in the courts of the various religious communities.

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Articles
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Israel Law Review , Volume 10 , Issue 3 , July 1975 , pp. 324 - 377
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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 On this subject see Bentwich, , “The Legal Administration of Palestine under the British Military Occupation, 1920–21” (1921) 1 British Yearbook of International Law 139Google Scholar.

2 The Mandate did not actually come into force until 1923. During the Mandatory period and even after the establishment of the State of Israel, the question was raised whether legislation repugnant to the terms of the Mandate was valid. The approach of the Mandatory Supreme Court was that the Mandate is obligatory in local law only to the extent that it was incorporated by the British legislator. British legislation deviating from the Mandate and even authorizing the High Commissioner to enact regulations contravening it was therefore held valid: Rosenblatt v. Registrar of Lands (1947) 14 P.L.R. 286Google Scholar. This decision recognized the validity of discriminatory Mandatory legislation contrary to the Mandate which was directed against the Jewish settlement. No wonder that the Supreme Court of Israel adopted a completely different approach: Leon v. Gubernik (1948) 1 P.D. 58, 67. On this subject see Rubinstein, , Constitutional Law of Israel (2nd ed., 1974, in Hebrew) 425–26Google Scholar. See also Malchi, , The History of Law in Israel (2nd ed., 1953, in Hebrew) 77et seq.Google Scholar

3 Bentwich, supra n. 1, at p. 148. These were designated official languages. See also Rubinstein, supra n. 2, at pp. 67–71. See also Bentwich, , “The Migration of the Common Law’ (1960) 76 L.Q.R. 39, 64Google Scholar (chapter on Israel).

4 Sussmann, , “Das Zivilrecht Israels” (1967) Juristenzeitung 205, 206Google Scholar.

5 On this subject see Frumkin, , The Life of a Jerusalem Judge (Tel Aviv, 1955, in Hebrew) 229Google Scholar.

6 See infra text at nn. 228–35 and Bentwich, op. cit., supra n. 3.

7 Of the 13 Justices who have served or are serving on the Supreme Court since 1964, only one was born, and received his legal education, in a country with a common law system (the United States). The remaining Justices, by and large, are from Europe, and two were born in Israel. Five Justices received their legal education in England or did graduate work there.

8 Thus, for example, in Haker v. Barash (1954) 8 P.D. 566, the question was whether a lease is a right in rem or in personam and may be transferred without consent of the lessor. Silberg J. analyzed the problem as solved in English, Roman, French, German and Swiss law, as well as Jewish law and, of course, under the Mejelle.

9 The division of legal systems into “families” was made by David, and Brierly, , Major Legal Systems in the World Today (London, 1968)Google Scholar and this is the term applied to this “family”.

10 Ibid., at pp. 103 and 312.

11 This point will be further discussed in our third article on “Independent Development of Israeli Law”.

12 An example of this can be found in the local Civil Wrongs Ordinance, 1944, which became effective in 1947, while in England no such similar codification of tort law exists.

13 Among the few exceptions is Ottoman insurance legislation which is in force to this day.

14 The Civil Wrongs Ordinance may be regarded as an important exception. See infra text at nn. 11–20.

15 See infra text at nn. 228–35.

16 The Succession Ordinance must be cited as an exception.

17 Parallel English legislation has since undergone comprehensive changes, but these have not reached us. See also Baker, , “Bodies Corporate in Israel” (1974) 9 Is.L.R. 518, 519et seqGoogle Scholar.

18 Sussmann, , The Law of Bills of Exchange (4th ed., 1971, in Hebrew) 296Google Scholar.

19 The Patents and Designs Ordinance, however, was replaced by Israeli legislation. See the Patents Law, 1967 (21 L.S.I. 149). The Trade Marks Ordinance and Bills of Exchange Ordinance have been officially recast into a new, Hebre version which is binding (2 L.S.I. (N.V.) 292).

20 Mejelle, Books 14–16 and Book 13, dealing with admissions.

21 See Malchi, , The History of Law in Israel (2d ed., 1953, in Hebrew) 136 ffGoogle Scholar.

22 However, substantive provisions of the Ottoman Code of Civil procedure dealing with contracts (secs. 64, 106–112) remained in effect until their subsequent repeal by the Israeli legislator. With regard to other provisions of the code that remained in force, see infra text at nn. 29–30.

23 From among these Ordinances we mention the Criminal Procedure (Arrest and Searches) Ordinance, 1924, the Criminal Procedure (Release on Bail) Ordinance, 1927, the Criminal Procedure (Trial upon Information) Ordinance, 1924, the Criminal Procedure (Summary Trial by the District Court) Ordinance, 1946 and the Magistrates' Courts (Jurisdiction) Ordinance, 1947. Except for the Criminal Procedure (Arrest and Searches) Ordinance (republished in the New Version (2 L.S.I. (N.V.) 30) in 1969, all these Ordinances were repealed by the Criminal Procedure Law of 1965. See Shalgi, M., “The New Code of Criminal Procedure in Israel” (1966) 1 Is.L.R. 448Google Scholar.

24 Today the Evidence Ordinance, 1971 (2 L.S.I. (N.V.) 216).

25 See e.g., Seligman v. A.G. (1939) 6 P.L.R. 405.

26 See Abu Horesh v. Sharia Court (1964) (I) 18 P.D. 589; Zucker v. Leibowitz (1964) (I) 18 P.D. 337; Shor v. State of Israel (1964) (III) 18 P.D. 341 (in which the court also relied upon American authorities) and Klausner v. Shimoni (1968) (II) 22 P.D. 561. See also Harnon, , “Res Judicata and Identity of Actions” (1966) 1 Is.L.R. 539Google Scholar.

27 It was so held regarding sec. 3 of the Ottoman Code of Criminal Procedure. See infra text at nn. 31–39.

28 Harnon, , The Law of Evidence (Jerusalem, 1970, in Hebrew) 26Google Scholar. The quotation is from Hasneh v. American Export Lines (1960) 14 P.D. 589, 590.

29 E.g., Blumenfeld v. Imperial Chem. Industries (1937) 4 P.L.R. 228. But the court there was apparently caught in error. See Muammar v. Dviri (1956) 10 P.D. 981.

30 Sussmann, , The Law of Civil Procedure (4th ed. 1974, in Hebrew) 444–45Google Scholar. Similarly, the Ottoman Execution of Judgments Law remained in force during the Mandate. It has since been replaced by the Execution Law, 1967 (21 L.S.I. 112).

31 See Egged v. Sapir (1958) 12 P.D. 739.

32 Tennenholz v. Poplovitz (1954) 8 P.D. 1570; Marciano v. Bada'an (1967) (II) 21 P.D. 285.

33 Moreover, it is incompatible with sec. 88 of the New Version of the Civil Wrongs Ordinance on this subject, Sussmann, op. cit. supra n. 30, at pp. 373–74 and Trachtengot v. Honigman (1959) 13 P.D. 1093.

34 Criminal Procedure Law, 1965, sec. 208 (19 L.S.I. 183). This statute also expressly repealed the Ottoman Code of Criminal Procedure.

35 Marciano v. Bada'an, supra n. 32.

36 (1973) S.H. no. 711, p. 236. The English law on the subject, was also modified by legislation. See Civil Evidence Act, 1968, secs. 11–13. On the Israeli law see Ginossar, S., “The Use of Criminal Judgments as Evidence in Civil Cases” (1975) 10 Is.L.R. 242Google Scholar.

37 See sec. 42A of the amended Ordinance, ibid., at p. 245.

38 Id. sec. 42C. See also M.L.T. Ltd. v. Maman (1975) (I) 29 P.D. 208.

39 The provision is today in sec. 40 of the Penal Law (Modes of Punishment) (Consolidated Version), 1970 (24 L.S.I. 121).

40 In this respect there seems to be a fundamental difference in approach between the common law system and continental legal systems. David and Brierly, op. cit. supra n. 9, at pp. 15, 298 ff.

41 Ginossar, , “What's Different in Civil Procedure?” (1963) 19 HaPraklit 315Google Scholar.

42 Abdul Hadi v. A.G. (1949/50) 3 P.D. 13. 27.

43 In this connection see text infra at nn. 171–192. See also Bentwich, op. cit. supra n. 3, at p. 67.

44 Rr. 161 and 406 of the Rules of Civil Procedure, 1963 (written summations).

45 R. 170 (opinion of medical expert); r. 471 (declarations in writing), and chapter II of the Evidence Ordinance [New Version], 1971 (written testimony).

46 See text supra at n. 25.

47 See e.g. Rachewitz v. Assessment Officer (1964) (IV) 18 P.D. 729, 739.

48 To complete provisions of substantive law, Art. 46 of the Palestine Order-in-Council refers us to common law principles and rules of equity. It has been suggested that the reference in the field of procedure is broader, and that it applies also to statutory provisions. For further discussion of Art. 46 see infra text at n. 200 et seq.

49 This was the opinion of Judge Baker in Borenstein v. Yudalewitz (1951) 5 P.D. 858, 870. But Dunkelblum J.'s opinion in the same action was different. Id. at pp. 864–67. See also Baider v. Levi (1969) (I) 23 P.D. 594, 600–2; Wilner v. Solicitor General (1965) (IV) 19 P.D. 370, 373; and Freund v. Carmi (1954) 8 P.D. 73, 76. Cf. Annotated Laws of Palestine, vol. 5, pp. 23–27Google Scholar.

50 Hadi v. A.G. (1949/50) 3 P.D. 13, 27.

51 (1955) 9 P.D. 1877.

52 Id. at pp. 1880–81. On this subject see Harnon, supra n. 28 at p. 120 ff.

53 Id. at p. 137 ff., and secs. 150 and 163 of the Criminal Procedure Law.

54 The subject has been raised in a number of cases. See Egged v. Brandes (1952) 6 P.D. 1089; Besowitz v. Geffen (1960) 14 P.D. 2136; Levi v. Panner (1961) 15 P.D. 533, (1961) 15 P.D. 2481, (1963) 17 P.D. 1391; Shefer v. A.G. (1961) 15 P.D. 263. For discussion of this subject see Harnon, , “Initiative of the Court in Calling Witnesses” (1963) 19 HaPraklit 246Google Scholar.

55 See e.g., Suari v. Bergman (1960) 14 P.D. 2354, 2358, in which it is apparent that a substantial portion of the legal research was undertaken by the court on its own.

56 Amiaz v. Estate of Moses (1971) (II) 25 P.D. 17. For a criticism of this decision see Yadin, , “Award of Damages After a Change in Circumstances” (1971) 27 HaPraklit 306Google Scholar.

57 (1969) (I) 23 P.D. 693.

58 See Sussmann, , “The Courts and the Legislature” (1969) 1 Mishpatim 216–17Google Scholar; “Judicial Review of Statute” (1969) 4 Is.L.R. 565, 566Google Scholar (per Elman), 569, 571 (per Klein), 576, 577 (per Akzin). Nimmer, , “Judicial Review in Israel's Quest for a Constitution” (1970) 70 Colum. L.R. 1217CrossRefGoogle Scholar.

59 Malchi, supra n. 21 at p. 98.

60 For a thorough study of the sources of the Ordinance, see Abrams, , “Interpreting the Criminal Code Ordinance, 1936—The Untapped Well” (1972) 7 Is.L.R. 25CrossRefGoogle Scholar. The author notes that the Code of Nigeria drew from the Penal Code of Queensland and that the Cyprus Code was based upon both. As a result, a striking similarity exists between many provisions of the Criminal Code Ordinance and the Code of Queensland. On sources of the Criminal Code, see also Malchi, supra n. 21 at p. 132 ff.

61 Regarding interpretation of the Ordinance in light of sec. 4, see Abrams, op. cit. at p. 48.

62 This amendment will be discussed in the third article of this series.

63 Abrams, op. cit. points out, on the other hand, that Israeli decisions practically never refer to decisions of other countries the provisions of whose criminal codes have served as a basis for the local Ordinance. Nor have they attempted to compare the language of the Ordinance with that of its source and, in the appropriate case, draw the necessary conclusions from changes in wording of the Ordinance.

64 [1925] 19 Cr. App. R. 8.

65 [1937] A.C. 576.

66 Rotenstreich v. A.G. (1953) 7 P.D. 58; Deutsch v. A.G. (1954) 8 P.D. 456 and (1954–1958) 2 S.J. 92. See authorities cited infra n. 69.

67 See preceding note.

68 Agranat, P. stated, however that “if the recklessness is expressed as a disregard [for others] he may be convicted of that crime even if his negligence amounted only to a lack of reasonable care”. Id. at p. 471.

69 The rule in Deutsch has become rooted in Israeli case-law and frequently relied upon. See e.g., Levi v. A.G. (1965) (IV) 19 P.D. 156; State of Israel v. Raphael (1968) (II) 22 P.D. 749; State of Israel v. Rofeh (1972) (II) 26 P.D. 713. For a discussion of the Deutsch rule see also Abrams, op. cit. at p. 36 ff., and Levy, Y., “Criminal Responsibility: A Survey of Developments in Israel Legislation and Precedent” (1974) 9 Is.L.R. 580, 583Google Scholar.

70 (1966) (III) 20 P.D. 102.

71 Id. at p. 109. See also State of Israel v. Raphael, supra n. 69. This point may be an innovation with regard to English law. Y. Levy, op. cit. at p. 584, when discussing this decision, points out that: “[P]ursuant to these developments, the old and rather controversial principles supporting a manslaughter conviction, wtiere merely ‘any unlawful act’ causes the death of another person, were considerably modified”.

72 Horowitz v. State of Israel (1972) (I) 26 P.D. 624, 630.

73 Id. at p. 630.

74 Rotenstreich v. A.G., supra n. 66; Porat v. A.G. (1955) 9 P.D. 1013, and State of Israel v. Raphael, supra n. 69. Still, complete identity does not always exist between criminal liability under sec. 218 and liability in tort for negligence. Thus, there is no vicarious criminal liability under sec. 218 while such liability is recognized in the law of torts. In addition, consent of the victim (volenti non fit injuria) which the Civil Wrongs Ordinance accepts as a defence, is not available to the defendant in a criminal action under sec. 218. See the opinion of Sussmann J. in Pinkas v. State of Israel (1973) (II) 27 P.D. 617, 626–27.

75 Levy, op. cit. at p. 586.

76 (1963) 17 P.D. 2913.

77 (1875) L.R. 8 C.C.R. 154.

78 See Abrams, op. cit. supra n. 60 at p. 34.

79 (1960) 14 P.D. 1882, and (1958–1960) 3 S.J. 266. For a thorough discussion of this case see Ginossar, , “Autonomy of Corrective Law: A Projection of the Doctrine of Constructive Negligence” (1974) 9 Is.L.R. 24Google Scholar.

80 (1966) (I) 20 P.D. 57. See also Ginossar, ibid. at p. 30.

81 It was also held, in the wake of English decisions, that sec. 2 of the New Version of the Motor Vehicle Insurance Ordinance established an absolute prohibition. It provides that a person shall not use or cause or permit a motor vehicle to be used on a public highway without an insurance policy which meets the requirements of the Ordinance. Violation of the provision constitutes an absolute offence which does not depend upon knowledge, mens rea or negligence. See Deutsch v. State of Israel (1967) (I) 21 P.D. 347, 351. Nevertheless, the absolute liability has been somewhat limited in that the courts are willing to recognize certain defences, such as absence of volition, third party intervention and abnormal event. See Gadisi v. A.G. and Bein, D., “Defences Available to a Defendant in Crimes of Absolute Prohibitions” (1966) 22 HaPraklit 464Google Scholar, and Y. Levy, op. cit., supra n. 69, at p. 586.

82 See infra n. 186 and accompanying text.

83 See Warner v. Metropolitan Police Comm'r [1968] 2 All E. R. 356; Sweeet v. Parsley [1969] 1 All E. R. 347. See also Brett, , “Strict Responsibility: Possible Solutions” (1974) 37 M.L.R. 417CrossRefGoogle Scholar.

84 (1956) 10 P.D. 281 and (1954–1958) 2 S.J. 116.

85 Id. at p. 337.

86 (1957) 11 P.D. 796. See also Sandrowitz v. A.G. (1968) (II) 22 P.D. 286. For a discussion of this subject see also Levy, Y., “Volition and Criminal Responsibility” (1972/1973) 1 Criminology, Criminal Law and Police Science 99, 119Google Scholar; Feller, , “The Mental Factor in Crime and the Requirement of Volition According to Israel Law” (1967) 23 HaPraklit 308Google Scholar; and Abrams, op. cit. supra n. 60 at p. 42.

87 (1952) 6 P.D. 514.

88 See also Y. Levy, supra n. 69, at pp. 582–583.

89 Sec. 1(1) of the English Road Traffic Act, 1972 establishes, however, the offence of causing the death of another person “by the driving of a motor vehicle on a road recklessly or … in a manner which is dangerous to the public …” (This section replaces sec. 1(1) of the Road Traffic Act, 1960). The local sec. 218 is not confined to traffic accidents, nor is it similarly worded.

90 Polonsky, , “Sec. 218 of the Criminal Law: Crime or Tort?” (1956) 12 HaPraklit 119, 123 ffGoogle Scholar.

91 Jacobowitz v. A.G. supra n. 87, at p. 554.

92 See the opinion of Silberg J., id. at pp. 567–68.

93 See the opinion of Cheshin J. in Eshed v. A.G. (1954) 8 P.D. 785, 790–91. Sec. 105 is, presumably, based upon the case of R. v. Manley [1933] 1 K.B. 529. English law has since adopted a completely different approach. (This development culminated in the decision of the House of Lords in D.P.P. v. Withers [1974] 3 All E.R. 984). However, in Israel the courts are still bound to apply sec. 105, which remains in force. See Levy, Y., “Some Aspects of the Principle of Legality” (1975) 4 Iyunei Mishpat 271Google Scholar.

94 Id. and Newman v. A.G. (1955) 9 P.D. 845, 859.

95 Penal Law Revision (Abolition of Death Penalty for Murder) Law, 1954 (8 L.S.I. 63). The death penalty still exists in Israel for certain other crimes such as those under the Nazi and Nazi-Collaborators (Punishment) Law, 1950, (4 L.S.I. 154). See also Bach, , “Development of Criminal Law in Israel During the 25 Years of its Existence” (1974) 9 Is.L.R. 568, 570Google Scholar. It should be noted that the only instance since the establishment of the State in which a death penalty imposed by law was carried out was in the case of Eichmann. The decision of the trial court was published in (1965) 45 P.M. 3, and that of the Supreme Court, on appeal, in (1962) 16 P.D. 2033. An English translation of both will be found in The Eichmann Judgments, Lauterpacht, E., ed. (reprint from Int.L.R. vol. 36, Butterworths, London, 1968)Google Scholar. infra text at nn. 112–20.

96 To-day the Penal Law (Modes of Punishment) (Consolidated Version), 1970.

97 See e.g., Penal Law Revision (Bribery) Law, 1952 (6 L.S.I. 32); Penal Law Amendment (Prostitution Offences) Law, 1962 (16 L.S.I. 67); Penal Law Amendment (Deceit, Blackmail and Extortion) Law, 1963 (17 L.S.I. 153); Penal Law Amendment (Prohibited Games, Lottery and Betting) Law, 1964 (18 L.S.I. 39). See also Y. Levy, supra n. 69, at p. 581, and Bach, supra n. 95, at 572 et seq.

98 Friedmann, , “The Effect of Foreign Law on the Law of Israel: Remnants of the Ottoman Period” (1975) 10 Is.L.R. 192, at 198Google Scholar.

99 (1940) 7 P.L.R. 363. Questions connected with Art. 46 will be dealt with in text infra at n. 202 et seq.

100 Tort Law: The General Part (Tedeschi, ed., Jerusalem, 1969, in Hebrew) 34Google Scholar, per Cheshin.

101 (1947) 14 P.L.R. 218.

102 Tedeschi, & Rosenthal, , The Civil Wrongs Ordinance as Seen Through the History of Its Creation and Amendment (Tel Aviv, 1954, in Hebrew) introduction, p. 3Google Scholar.

103 See Englard, , “The Law of Torts in Israel: The Problems of Common Law Codification in a Mixed Legal System” (1974) 22 Am. J. Comp. L. 302CrossRefGoogle Scholar. See also Englard, , “Twenty Five Years of the Civil Wrongs Ordinance: Trends and Problems” (1974) 5 Mishpatim 564Google Scholar.

104 The prior draft of the Ordinance, prepared around 1927, relied upon the Civil Wrongs Bill prepared by Pollock for India and upon the Digest of Jenks (Tedeschi and Rosenthal, op. cit., introduction, p. 4).

105 Cheshin, , “Tort and Torts in Israel Law” (1969) 1 Mishpatim 346Google Scholar. See also Englard, supra n. 103, (1974) 5 Mishpatim 564 at p. 570Google Scholaret seq.

106 [1932] A.C. 562.

107 See the opinion of Agranat J. in Weinstein v. Kadima (1954) 8 P.D. 1317, 1333, which involved liability for negligent misrepresentation, and Kornfeld v. Samuelov (1967) (I) 21 P.D. 310 (liability of builder in torts). On this subject see text infra at nn. 131, 132 and nn. 135–144.

108 (1868) L.R. 3. (H.L.) 330.

109 The Civil Wrongs Ordinance [New Version], sec. 40 uses the term “wild animals”.

110 Id. secs. 38–40.

111 See David v. Abdul Kader [1963] 3 All E.R. 579 and Rubinstein and Friedmann, , “Liability in Tort of Civil Servants” (1965) 21 HaPraklit 61Google Scholar.

112 As to the English law see Street, The Law of Torts (5th ed., London, 1972) 349–54Google Scholar. The tort of causing breach of contract is, however, included in the Civil Wrongs Ordinance. It has also been regretted that the tort of malicious prosecution has been conceived too narrowly (Ginossar, S., “Nuisance Between Litigants” (1970) 2 Mishpatim 221, 243–251Google Scholar).

113 See Rosenthal, , “Does the Civil Wrong of Conspiracy Exist in Israel?” in Selected Topics in Law (Jerusalem, 1958, in Hebrew) 394Google Scholar.

114 Vider v. A.G. (1956) 10 P.D. 1246. But see the opinion expressed obiter dictum by Berinson J. in Gideon v. Saliman (1959) 13 P.D. 916, 924. The other Justices expressed no opinion on this point. And see Cheshin, supra n. 105.

115 See Rubinstein and Friedmann, supra n. 111.

116 Neither did the Ordinance include the defence of common employment, although this defence was not abolished until the Law Reform (Personal Injuries) Act, 1948, enacted after the local Ordinance.

117 Cheshin, supra n. 100 at p. 38.

118 Per Susmann J. in Barnet v. Barnet (1958) 12 P.D. 565, 579.

119 Landau J. (dissenting) in Barnet v. Barnet, id. at p. 571.

120 An interesting example may be found in Barnet v. Barnet (see preceding notes) in which the majority, relying upon provisions of the Mejelle regulating actions for ownership, i.e., for the recovery of property (rei vindicatio) managed to circumvent the immunity offered by the Civil Wrongs Ordinance to one spouse against action in tort by the other. The section of the Ordinance providing this immunity has since been repealed. (See infra n. 124).

121 See e.g., Land Law, 1969, sec. 158 (2); Movable Property Law, 1971, sec. 16.

122 See England, supra n. 103, (1974) 5 Mishpatim 564 at p. 578Google Scholaret seq.

123 Civil Wrongs Ordinance (Amendment No. 4) Law, 1970 (24 L.S.I. 127). The English law on the subject had been amended some years before by the Occupiers' Liability Act, 1957. On the Israeli amendment see Galinn, , “Immunity of the Occupier of Land as against a Trespasser—The New Law” (1971) 27 HaPraklit 210, 268Google Scholar and Shalgi, , “Occupiers' Liability in Tort” (1971) 6 Is.L.R. 240Google Scholar.

124 Litigation between Spouses (Regulation) Law, 1969 (23 L.S.I. 165). Again English law had already been amended by the Law Reform (Husband and Wife) Act, 1962. It may well be that Israeli legislation both on this subject and on the question of liability of the land-owner was influenced by the earlier intervention of the English legislator. Nevertheless, there is no identity between the Israeli statutes and the parallel English legislation.

125 See the new sec. 34 A (a) added by Civil Wrongs Ordinance (Amendment No. 5) Law, 1974 (S.H. no. 737, p. 94).

126 In Israel: Vider v. A.G. (1956) 10 P.D. 1246; Jewish Agency v. Schechter (1957) 11 P.D. 1329. In England: Receiver of Metropolitan Police District v. Croydon Corp. [1957] 2 Q.B. 154 and Goff, and Jones, , The Law of Restitution (London, 1966) 218–20Google Scholar.

127 On this statute see Tedeschi, , “Repair of Bodily Harm by One Not Responsible for the Tort” (1965) 21 HaPraklit 237Google Scholar; Tedeschi, , “Repairing Bodily Damage Caused by the Victim's Negligence” (1965) 21 HaPraklit 371Google Scholar; and Meir, , “The Civil Wrongs Amendment (Repair of Bodily Harm) Law, 1964” (1965) 21 HaPraklit 502Google Scholar. See also Baker, , The Legal System of Israel (1968) 99–100Google Scholar.

128 Israeli legislation affecting this provision will be discussed in our next article, “Independent Development of Israeli Law”.

129 On construction of the Ordinance see Cheshin, supra n. 100, at p. 51 et seq.

130 [1951] 2 K.B. 164.

131 Weinstein v. Kadima (1954) 8 P.D. 1317.

132 Hedley Byrne v. Heller [1964] A.C. 465. It seems that this rule was narrowed by a majority decision in the Privy Council in Mutual Life Assurance v. Evatt [1971] 2 W.L.R. 23. See also Rickford, , “A Mirage in the Wilderness: Hedley Byrne Considered” (1971) 34 M.L.R. 328Google Scholar.

133 (1962) 16 P.D. 209.

134 Per Berinson J., id. at p. 222. English law on this point has also been modified by means of legislation. See Griffith, and Street, , Principles of Administrative Law (4th ed., London, 1967) 257–58Google Scholar.

135 (1967) (I) 21 P.D. 310.

136 Id. at pp. 318–19.

137 Sharpe v. Sweeting [1963] 2 All E.R. 455. See also Gallagher v. McDowell [1961] N.I. 26.

138 Sharpe, supra n. 137 at p. 463, and Kornfeld, supra n. 135.

139 [1932] 1 K.B. 458.

140 [1906] A.C. 428.

141 [1936] 2 K.B. 46.

142 [1932] A.C. 562.

143 See Dutton v. Bognor Regis Bldg. Co. [1972] 1 All E.R. 462, 472 in which the Master of the Rolls, Lord Denning, said, “In my opinion Bottomley v. Bannister is no longer authority. Nor is Otto v. Bolton & Norris. They are both overruled”. See also the opinion of Sachs, L. J. at pp. 478–79. These words were obiter dictum. See note, Rogers, , “Defective Premises—The Council Will Pay” (1972) 30 C.L.J. 211CrossRefGoogle Scholar. Today the question of liability of sellers, builders and lessors of defective buildings is regulated by the Defective Premises Act, 1972. The rule of Cavalier v. Pope was changed even earlier by the Occupiers' Liability Act, 1957, sec. 4. See also Street, , The Law of Torts (5th ed., 1972) 194et seq.Google Scholar

144 On the distinction between physical and economic damage in English law see S.C.M. v. Whittall [1970] 3 All E.R. 245. But in Dutton (see preceding note) Denning L. J. (at p. 474) expressed the opinion that the damage in question was physical. For a criticism of this view see Rogers (preceding note) at p. 213.

145 (1966) (I) 20 P.D. 163.

146 The decision was affirmed in Shahada v. Hilo (F.H.) (1966) (IV) 20 P.D. 617.

147 [1972] 1 All E.R. 462.

148 Bochan v. Eisenberg (1973) (II) 27 P.D. 720 and cf. Elman, , “A Digest of Recent Israeli Cases” (1974) 9 Is.L.R. 141Google Scholar.

149 It is to be assumed that the result would have been different had the owner of the garage been acting not on behalf of the Licensing Authority but under agreement with the owner of the motor vehicle. See id. at p. 724.

150 This also reflects the Supreme Court's tendency to follow its own prior rulings, and to prefer them to English precedents. The Supreme Court is generally unwilling to deviate from an Israeli precedent merely because in the meantime a different decision is given in England. On this matter see also Kochavi v. Baker (1957) 11 P.D. 225.

151 The development of this rule will be discussed in our next article.

152 (F.H.) (1969) (I) 23 P.D. 771.

153 See also, State of Israel v. Friedman (1972) (I) 26 P.D. 718. In this matter, as well, the development in Israel preceded that of England, except that the change in England “was not wrought … by ‘judicial legislation’ but by the legislator himself” (per Sussmann J., id. at p. 722). See Law Reform (Miscellaneous Provisions) Act, 1971, sec. 4.

154 Lapidot, supra n. 152, at p. 779.

155 These sections have been repealed by recent Israeli legislation which will be discussed in our next article.

156 Most of these provisions have also been repealed by recent Israeli legislation.

157 See Friedmann, , “The Effect of Foreign Law on the Law of Israel: Remnants of the Ottoman Period” (1975) 10 Is.L.R. 192, at pp. 199–200Google Scholar.

158 See Malchi, supra n. 21, at p. 100 et seq.

159 Land Transfer Ordinance, 1920 and Land (Settlement of Title) Ordinance, 1928. The former provides that transfer of an interest in land (including a mortgage and lease for a period in excess of three years) shall be invalid unless registered in the land records. The latter Ordinance has been reenacted in a New Version.

160 The Land Courts Ordinance, 1921, was repealed by the Courts Law, 1957. These courts have ceased to exist and their authority has been vested in the district courts.

161 On this subject see Cheshin, , Chattels in the Law of Torts (Jerusalem, 1970, in Hebrew)Google Scholar. See also Barnet v. Barnet, supra n. 118. See also Selah v. State of Israel (1974) (II) 28 P.D. 371, in which the question arose whether the accused had acted unlawfully in seizing lambs and refusing to return them to their owner unless he was compensated for the damage they had caused. The court referred inter alia to sec. 49 of the Civil Wrongs Ordinance which defines detinue as “unlawful withholding of any movable property from any person entitled to the immediate possession thereof”. But the term “unlawful” is not defined in the Ordinance, so that its meaning must be determined in accordance with legal principles that are outside the Ordinance. The court held that these principles include the right of distress damage-feasant which was tacitly imported from English law and that the accused is entitled to rely on it.

162 The same might be said of the State of Israel, with the exception, perhaps, of the Women's Equal Rights Law, 1951 (5 L.S.I. 171), dealing with one aspect of equality before the law. See Rubinstein, supra n. 2, at pp. 165–68, citing additional examples of Israeli legislation prohibiting discrimination.

The Mandate itself contained provisions designed to protect certain civil rights such as freedom of conscience (Art. 15). It also prohibited discrimination of any kind between the inhabitants of Palestine on the ground of race, religion or language (Art. 15). But during the period of British rule the provisions of the Mandate were not considered part of local law unless incorporated by legislation. See supra n. 2.

163 See Rubinstein, op. cit. at p. 108 et seq.

164 The list of recognized communities was included in the second schedule to the Order-in-Council. There were, in addition to the Jewish community, nine recognized Christian communities. After the establishment of the State, the Evangelist-Episcopalian and Bahai communities received recognition. A separate statute also established Druze Religious Courts. See Rubinstein, op. cit. at p. 109 and Bracha, , “Personal Status of Persons Who Do Not Belong to a Recognized Religious Community” (1971) 1 Iyunei Mishpat 156 at p. 164Google Scholar.

165 Frumkin, op. cit. supra n. 5, at pp. 248–50. Bracha (preceding note), at pp. 160–1.

166 The compromise was recommended by the committee appointed for this purpose by the High Commissioner, Sir Herbert Samuel. See Frumkin, op. cit.

167 Religious courts have concurrent jurisdiction when the foreign national agrees thereto. See Rubinstein, op. cit.

168 Rubinstein, op. cit. at p. 111.

169 This subject will be discussed in our next article, “Independent Development of Israeli Law”.

170 On the position of English law see Cross, , Precedent in English Law (2nd ed., Oxford, 1968) 168et seq.Google Scholar The different approach of continental law systems is discussed in David, and Brierly, , Major Legal Systems (London, 1968), 103et seq.Google Scholar

171 Landau, , “Rules and Discretion in the Judicial Process” (1969) 1 Mishpatim 292, 296Google Scholar.

172 Yadin, , “More on Construction of Knesset Statutes” (1970) 26 HaPraklit 358, 362–363Google Scholar. See also Permanent Investments in Israel Co. Ltd. v. Selver (1963) 17 P.D. 1655, in which the District Court was sharply rebuked for failure to follow the Supreme Court's construction of a statutory provision. The District Court Judge had observed that he would be bound by the Supreme Court's construction if that construction had been one of the grounds necessary for a determination of that issue, not when it was merely an obiter dictum. This was harshly criticized by the Supreme Court. On this Prof. Tedeschi commented that “the courts in Israel are apparently more and more becoming adherents of the doctrine of precedent”. “Obiter Dictum — An Adjudicated Rule?” (1964) 20 HaPraklit 99Google Scholar.

173 See e.g., the opinion of Landau J. in Bar-Hai v. Steiner (F.H.) (1966) (IV) 20 P.D. 327, 330: “A rule unnecessary for determination of a matter in the context of the facts discussed, is nothing but an qobiter dictum and has no force as precedent for the future”. But cf. preceding note.

174 See Re'em v. Finance Minister (1954) 8 P.D. 494, in which Goitein J. discusses the Mandatory practice at p. 498.

175 Rosenbaum v. Rosenbaum (1949) 2 P.D. 235, 254.

176 Supra n. 174 at pp. 501–02.

177 See criticism of this in Joshua v. Appeals Board (1955) 9 P.D. 617, 628, per Witkon J.: “The President of the Court spoke against precedents in general … and not only against precedents of the Mandatory period”.

178 On the change since then see Cross, op. cit. supra n. 170 at p. 107, and Leach, , “Revisionism in the House of Lords: The Bastion of Rigid Stare Decisis Falls” (1967) 80 Harv. L.R. 792CrossRefGoogle Scholar.

179 This is criticized by Tedeschi in his article “On the Principle of Stare Decisis” in Studies in Israel Law (2nd ed., 1959, in Hebrew) 99, 110Google Scholar. The Court recognized a number of exceptions to the principle, such as where no grounds are given for a decision, when there are conflicting precedents or when a decision is rendered in ignorance of a statutory provision (supra n. 174, at p. 503). Compare Cross, op cit. at p. 143.

180 Cf. Leach, supra n. 178 at pp. 799–800.

181 (1955) 9 P.D. 617 and 629–30.

182 Isaac (Shick) v. Minister of Interior (1972) (II) 26 P.D. 33, 51. Yet the Attorney General's representative did succeed in convincing a majority of the Court to follow its precedent on the specific point in issue. The case involved the reputed or “unmarried” wife who sought to change her surname to that of the man with whom she co-habited. See Friedmann, , “The Unmarried Wife in Israeli Law” in (1972) 2 Israel Yearbook on Human Rights 287, 305Google Scholar. For criticism of Sussmann J.'s opinion see Yadin, , “Truth or Stability” (1972) 28 HaPraklit 152, 159–60Google Scholar.

183 Vaughan C.J. in a well-known passage said “…if a judge conceives a judgment given in another Court to be erroneous, he being sworn to judge according to law, that is, in his own conscience ought not to give the like judgment…” Bole v. Horton (1673) 124 E.R. 1113, 1124.

184 See the opinion of Landau J. in State of Israel v. Sussman (1968) (II) 22 P.D. 1029, 1036; Isaac (Shick) v. Minister of Interior, supra n. 182. And see Yadin, supra n. 182. Compare also Jones v. Secretary of State for Social Services [1972] A.C. 944.

185 See supra text at nn. 75–83.

186 (F.H.) (1966) (I) 20 P.D. 57, 68.

187 Agranat P.'s reason for stating that the change cannot come from the courts was not only that the previous rule has “in the interval become deeply rooted, but that it is an established rule of law that the final burden of proof as to criminal intent and absence of honest, reasonable mistake is upon the prosecution”. Id. at p. 71. Compare also Brett, supra n. 83.

188 A further example may be found in Bide v. Rubin (1971) (II) 25 P.D. 43, in which, following a previous Israeli decision, the Supreme Court held that a pension paid to a decedent's dependants upon his death is to be deducted from damages in torts. The Israeli rule was established originally on the authority of English cases, except that the English rule has since been modified by a decision of the House of Lords in Parry v. Cleaver [1969] 1 All E.R. 555. Two Justices of the Supreme Court felt that the rule enunciated in Parry v. Cleaver was, in fact, the desirable one (the third Justice was of a different opinion on this point) but held that the court should follow its previous ruling and expressed the wish that the change in the rule be made by the legislature (at p. 51).

189 See e.g., Lapidot Inc. v. Schleisser (F.H.) (1969) (I) 23 P.D. 771, in which the Court held, contrary to previous rulings, that in a widow's action for loss of support by her husband her chances for remarriage are not to be taken into account. See supra text at nn. 152–54. For an additional example of a change in law see Boronowsky v. Chief Rabbinate of Israel (F.H.) (1971) (I) 25 P.D. 7.

190 On this subject see Sussmann, supra n. 30 at p. 667.

191 See David and Brierly, supra n. 9 at p. 110.

192 The cases are noted in Sussmann, op. cit. supra n. 30, at p. 674.

193 Six Mandatory Ordinances contain such a provision: the Bills of Exchange Ordinance, [New Version], the Companies Ordinance, the Partnership Ordinance, the Criminal Code Ordinance, 1936, the Bankruptcy Ordinance, 1936, and the Civil Wrongs Ordinance [New Version]. The provisions are today subject to the Law and Administration Ordinance Amendment (No. 14) Law, 1972 (26 L.S.I. 52), which will be discussed in our third article. As regards the provisions in the Civil Wrongs Ordinance see Tort Law: The General Part (Tedeschi, ed., Jerusalem, 1969, in Hebrew) 51Google Scholar, per Cheshin; and as regards the Criminal Code Ordinance, see Abrams, supra n. 60, at p. 48.

194 For this provision see Procaccia, , “Principles of Construction of Israeli Law, Especially the Law of Contracts, with Reference to English Law” (1975) 1 Tel Aviv University Studies in Law 142, 144–5Google Scholar.

195 For the meaning of “expressions” in this context, see Abrams, op. cit. supra n. 60, at p. 52; Cheshin, op. cit. supra n. 100, at p. 66.

196 Mizrachi Bank Ltd. v. Shureck (1941) 8 P.L.R. 494, 496. See also Sussmann, , The Law of Negotiable Instruments (5th ed., Jerusalem, 1975, in Hebrew) 21Google Scholar.

197 For criticism of this approach, see Barak, , “Extension to the Primary Obligor on a Bill of Exchange and Its Influence on the Aval Guarantor: English Law Versus Local Law” (1968) 24 HaPraklit 404, 407Google Scholar.

198 This will be discussed further in the third article of this series.

199 Though Art. 46 does not refer for completion to English legislation, the view has been expressed that in matters of procedure the reference includes English legislation. See supra text at nn. 48 and 49.

200 Examples can be found of the courts ruling that English law does not apply because it does not suit the conditions in Israel. See e.g., Executor of Estate of Jankovsky v. Jankovsky (1956) 10 P.D. 1282, 1286; Bricker v. Bricker (1966) (I) 20 P.D. 589, 610–612; Tefer v. State of Israel (1974) (II) 28 P.D. 7. In the last case it was held that the institution of common law marriage is not to be imported via Art. 46. And see infra regarding non-absorption of the institution of the private trust, text at nn. 293 and 294.

201 On this problem see Zeltner, , “Art. 46 of the Palestine Order-in-Council as a Provision of Inter-Strata Law” (1960) 16 HaPraklit 300Google Scholar.

202 Malchi, supra n. 21, at p. 87, notes that Art. 46 was modelled on Art. 17 of the Tanganyika Order-in-Council, 1920. And see Tedeschi, infra n. 203.

203 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) 133–34Google Scholar, mentions such a provision which was in effect in India. And see Mustafa, , The Common Law in the Sudan, An Account of the “Justice, Equity, and Good Conscience” Provision (Oxford, 1971)Google Scholar. This work deals also with the history of the provision in India.

204 See Mustafa, ibid. at p. 133, and text supra at nn. 195–197.

205 Tedeschi, supra n. 203, at p. 133.

206 Tedeschi, supra n. 203. See also Coing, , “The Roman Law as Ius Commune on the Continent” (1973) 89 L.Q.R. 505, 513Google Scholar.

207 Gilissen, , “Le Problème des Lacunes du Droit dans l'Evolution du Droit Médiéval et Moderne” in Le Problème des Lacunes en Droit (Studies edited by Perelman, , Bruxelles, 1968) 197–98Google Scholar (hereinafter Les Lacunes en Droit). The author notes that the question of the lacuna is less acute when the court rules on the basis of custom, for in such a case the question is often regarded as a lacuna in knowledge of the law rather than a lacuna in the law itself. Ibid. at p. 219. See also Huberlant, , ”Les Mécanismes Institués pour Combler Les Lacunes de la Loi” in Les Lacunes en Droit at p. 32Google Scholar.

208 Id. at p. 203. Hence the practice, which once existed in various European countries, of the court turning to the legislator not only for completion but sometimes also for construction. For a detailed discussion of this subject, see Huberlant, (preceding note) at pp. 45–49. See also Tedeschi, op. cit. at pp. 144–45. These arrangements have since been replaced by the obligation to adjudicate imposed upon the court. It is interesting that the method of referring to the legislator was tried by the Supreme Court of Israel, albeit not to fill a lacuna or to construe a statute, but to avoid altogether the need for deciding on the controversial question of “who is a Jew?” for the purpose of making an entry in the population registry. The court approached the Government with the suggestion that it initiate an amendment to the law, but the Government rejected this suggestion, and the decision was ultimately rendered (Shalit v. Minister of Interior (1969) (II) 23 P.D. All; (1971) S.J. special volume, p. 35). The Government was, however, dissatisfied with it, and the statute was soon amended. See notes by Akzin, and Ginossar, , (1970) 5 Is.L.R. 259, 264Google Scholar.

209 Barak, , “Towards Codification of the Civil Law” (1975) 1 Tel-Aviv Univ. Studies in Law 9, 23Google Scholar. Huberlant, supra n. 207 at p. 39. Cf. also Foriers, , “Les Lacunes du Droit” in Les Lacunes en Droit at pp. 9, 16–17Google Scholar.

210 E.g., Civil Code of Switzerland, 1907, § 1; Code of Italy, 1942, § 12. For a detailed survey see Huberlant, at pp. 31, 60 ff. See also Barak (preceding note) at p. 23.

211 Silving, , “Positive Natural Law” in Sources of the Law (New York, 1968) 295, 311Google Scholar, n. 53.

212 English law does not allow the court to decline to adjudicate on the ground of absence of precedent (contrary to the possibility of a non liquet). See Paton, , Jurisprudence (4th ed., Oxford, 1972) 93Google Scholar. A similar principle exists in most legal systems and the French Civil Code explicitly prohibits a “denial of justice”. This principle itself does not direct the judge to fill a lacuna: the court fulfils its obligation if, in the absence of an applicable rule of law, it dismisses the action. Cf. the discussion of art. 4 of the French Code in Foriers, “Les Lacunes du Droit” at p. 11; but it seems that the intention of this provision was to authorize the court to fill lacunae. Foriers, id. Paton notes that there is a serious difference between a decision according to which there is no legal answer to a problem and dismissal of an action on the grounds that there is no right to relief (id. at p. 199). Though in neither case does the plaintiff obtain relief, there might, from this point of view, be a difference between the two instances if a determination of non liquet were to open the way for other possibilities, such as bringing another action in the future or the plaintiff's resorting to self-help. Under municipal law, however, the latter possibility is hardly conceivable. On the level of international law, see Stone, , “Non Liquet and the International Judicial Function” in Les Lacunes en Droit at p. 305Google Scholar. See generally Rabello, , “Non Liquet: From Modern Law to Roman Law” (1974) 9 Is. L.R. 63Google Scholar. The problem of non liquet must be distinguished from that of justiciability. The denial of the possibility of non liquet imposes upon the court a duty to adjudicate. On the other hand, the view that certain issues are not justiciable recognizes that certain spheres may be outside the operative areas of the courts. We shall return to the question of non-justiciability in our third article “Independent Development of Israeli Law”.

213 See Tedeschi, supra n. 203, at p. 136.

214 See Foriers, op. cit. at p. 14, and Huberlant, op. cit. at p. 32. See also Canaris, , “De la Manière de Constater et de Combler les Lacunes de la Loi en Droit Allemand” in Les Lacunes en Droit at p. 161Google Scholar.

215 See Huberlant, op. cit. at 34.

216 Compare the legal development in Shaw v. D.P.P. [1962] A.C. 220 and Knuller v. D.P.P. [1973] A.C. 435. But see the recent decision in D.P.P. v. Withers [1974] 3 All. E.R. 984.

217 The question whether a statutory provision based on a general term whose content must be filled by the courts creates a lacuna will be dealt with below.

218 Per Cheshin J. in Eshed v. A.G. (1954) 8 P.D. 785, 790–91. See also text supra at nn. 93–4.

219 Barak, supra n. 209 at p. 23.

220 Huberlant, op. cit. at p. 36. See also Silance, , “Un Moyen de Combler les Lacunes en Droit” in Les Lacunes en Droit at p. 489Google Scholar.

221 On this point see Tedeschi, , “Art. 46 of the Palestine Order-in-Council and The Existence of Lacunae” in Les Lacunes en Droit at pp. 275, 300–1Google Scholar who discusses an illustration by Zitelman of a statute which provides that a creditor is entitled to interest, without stating at what rate.

222 Huberlant, op. cit. at p. 37 and Gény, , Méthode d' Interprétation et Sources en Droit Privé Positif (2nd ed., Paris, 1954) vol. 1, pp. 195–197Google Scholar.

223 See Canaris, op. cit. supra n. 214 at pp. 162–63.

224 This has been referred to as “a lacuna in concepts of value”. Wolf, , “Les Lacunes du Droit et leur Solution en Droit Suisse” in Les Lacunes en Droit at pp. 105, 108–9Google Scholar.

225 This is the expression adopted by Sussmann in reliance upon the words of Judge Learned Hand in Johnson v. U.S., 186 F. 2d 588, 590 (2d Cir. 1951) and U.S. v. Levine, 83 F. 2d 156, 157 (2d Cir. 1936). See Sussmann, , “Some Problems of Construction” in Jubilee Book Dedicated to Pinhas Rosen (Jerusalem, 1963, in Hebrew) 147, 156Google Scholar. Compare also National Ins. Institute v. Ravitzky (1966) (III) 20 P.D. 29, 38 which approached the question of meaning of terms as if it were a question of a lacuna which must be filled by reference to English law, and cf. Tedeschi, supra n. 221, at pp. 285 and 301–2.

226 Compare Canaris, op. cit. at p. 163.

227 Tedeschi, supra n. 203, at pp. 134–35.

228 For a discussion of this problem see Zeltner, supra n. 201, and Tedeschi, supra nn. 203 and 221.

229 (1936) 3 P.L.R. 178.

230 See Tedeschi, supra n. 221 at pp. 294–95, where this view is sharply criticized.

231 See Malchi, supra n. 21, at p. 141 and Tedeschi, supra n. 203, at p. 164 et seq.

232 See e.g., Blumenfeld v. I.C.I. (1937) 4 P.L.R. 228. See also supra n. 29.

233 (1935) 2 P.L.R. 390.

234 See the opinion of Sussmann J., in Grossman and K.B.K. v. Biderman (1972) (II) 26 P.D. 781, 791–2, and Zeltner, , Contracts (General Part) (Tel Aviv, 1970, in Hebrew) vol. 3, pp. 220–21Google Scholar.

235 Id. at p. 220.

236 (1938) 5 P.L.R. 159.

237 In Tedeschi's view this opinion should be qualified. (See Tedeschi, supra n. 221 at pp. 279–80). Zeltner, on the other hand, goes far in the opposite direction arguing that the reference to Ottoman legislation in the first part of Art. 46 also includes the Moslem or French sources upon which it is based. This, of course, would narrow to the extreme the necessity of importing English law via Art. 46. See Zeltner, supra n. 201.

238 Cf. Tedeschi, supra n. 203, at p. 159.

239 See e.g., New Zealand Ins. Ass'n v. Yuval (Salzman) (1953) 7. P.D. 518 (construction of a provision in the Ottoman Maritime Law dealing with non-disclosure); Bohan v. Rosenzweig (F.H.) (1968) (I) 22 P.D. 569 (construction of a provision in the Ottoman Insurance Law requiring a written document). On the other hand see National Ins. Institute v. Ravitzky, supra n. 225, although in that case terms from English law were at issue.

240 (1954) 8 P.D. 566. This passage was quoted in Pritzker v. Niv (1960) 14 P.D. 1545, 1550. Cf. also Mendelwitz v. Ramat (1964) (II) 18 P.D. 158.

241 For criticism of this statement see Tedeschi, supra n. 203 at pp. 169–70.

242 Pritzker v. Niv, supra n. 240, at p. 1549.

243 Amado v. Immigrants Camp Manager (1950) 4 P.D. 5, 14; Matalon v. Rabbinical Court (1963) 17 P.D. 1640, 1645; Abramovsky v. Gleitman (1963) 17 P.D. 2605, 2607; Rosenbaum v. Guli (1964) (II) 18 P.D. 374.

244 City of Tel Aviv v. Armon-Aharonowitz (1956) 10 P.D. 1835. This despite the fact that the Mejelle contains scattered provisions which are capable of being classified as belonging to this branch of law. See Pritzker v. Niv, supra n. 240 at p. 1549.

245 See Friedmann, supra n. 98, text at nn. 24–25.

246 Palestine Mercantile Bank Ltd. v. Freiman, supra n. 236.

247 Fischer v. Gefen (1941) 8 P.L.R. 197; Lifschitz v. Arnold (1949) 2 P.D. 421; Fokschner v. Agyon (1956) 26 P.E. 244. For criticism of this, see Zeltner, supra n. 201. The author draws a parallel with the problem of classification in conflict of laws and comes to the conclusion that the silence of the Mejelle on this point is not the result of an omission, but indicates the intent not to recognize any right of contribution.

248 Cf. Canaris, supra n. 214 at p. 163.

249 Pritzker v. Niv, supra n. 240 at p. 1550.

250 Id. at pp. 1550–51. See also Official Adtninistrator of Assets v. Liquidator of Palkutiel, Ltd. (1969) (I) 23 P.D. 256, 260.

251 See cases cited supra n. 247 and Bassat & Caledonian v. The Pool (1964) (I) 18 P.D. 533, in which the principle of contribution was absorbed in its broadest form, emphasizing the just and desirable result thus reached.

252 Contracts (General Part) Law, 1973, sec. 56 (S.H. no. 694, p. 118). An English translation of the Law appears in (1974) 9 Is. L.R. 282.

253 Guarantee Law, 1967, sec. 12 (21 L.S.I. 42).

254 However, in the cases where owing to absence of consideration an undertaking is actually a promise to make a gift, it must be made in writing and is subject to the provisions of the Gift Law. For the approach of the new Israeli legislation to the doctrine of consideration, see Friedmann, , “The Doctrine of Consideration in the new Israeli Legislation” (1973) 3 Iyunei Mishpat 153Google Scholar.

255 See supra n. 193.

256 Mizrachi Bank Ltd. v. Shurek (1941) 8 P.L.R. 494.

257 Pri Taim Ltd. v. Levi (1968) (I) 22 P.D. 253.

258 Rappaport v. Atzmon (1968) (II) 22 P.D. 51, 56. See also Barak, , “Extension to the Primary Obligor on a Bill of Exchange and its Influence on the Aval Guarantor” (1968) 24 HaPraklit 404, 414Google Scholar.

259 See also sec. 6 (b) of the statute which provides: “Where the creditor has caused the termination of a security given to secure the guaranteed obligation and damage is thereby caused to the guarantor, the guarantor is discharged to the amount of the damage”.

260 City of Tel Aviv v. Armon-Aharonowitz, supra n. 244 at p. 1837. The provisions on duress are today found in the Contracts (General Part) Law, 1973.

261 Amal v. Schindler (1952) 6 P.D. 710. The decision includes an interesting comparison with the approach of Jewish law on this point.

262 Despite the existence of several provisions in the Mejelle on this subject. See Zeltner, , The Law of Contracts (General Part) (Tel Aviv, 1963, in Hebrew) vol. 1, p. 493Google Scholar.

263 But this does not include the requirement of disclosure in the realm of marine insurance, which was contained in the Ottoman Maritime Commercial Code, and which was construed by reference to French law. On the other hand there is no provision on disclosure in the non-maritime Ottoman Insurance Law, and the question was therefore raised whether English law should be applied. See Zeltner, op. cit. at pp. 504–5, and Ronen v. La Foncière (1972) (I) 26 P.D. 533–40. At any event courts tend to graft English law in this area onto the written Ottoman law. Cf. Lloyds of London Underwriters v. Aliuf (1973) (I) 27 P.D. 405. The requirement of disclosure also arose with regard to other contracts and English law was generally followed. See Zeifer v. Salpeter (1961) 15 P.D. 804 (family arrangements) and Nehorai v. Rheingevirtz (1971) (I) 25 P.D. 449 (partnership agreement).

264 See e.g., Aharonst v. Neuman (1956) 10 P.D. 1121; Zeltner, op. cit. vol. 2, p. 54.

265 See text supra at n. 260 and Friedmann, , The Law of Unjust Enrichment (Tel Aviv, 1970, in Hebrew) 168 ffGoogle Scholar.

266 Friedmann, op. cit. at p. 200 ff.

267 See the Mandatory decision of the Privy Council in Faruqi v. Ayoub (1935) 2 P.L.R. 390 and that of the Supreme Court of Israel in Grossman & K.B.K. v. Biderman (1972) (II) 26 P.D. 781 and see text supra at n. 233.

268 Zeltner, op. cit., vol. 1 at p. 180. However, application of the doctrine as regards the law of suretyship, fully regulated in the Mejelle, was rejected even during the Mandatory period. See supra text at n. 236.

269 Zeltner, id. at n. 282, and Friedmann, supra n. 254.

270 Zeltner, id. at p. 352 et seq.

271 State of Israel v. Hidna (1960) 14 P.D. 926, 930. See also Halawi v. Mifal Hapayis (1973) (I) 27 P.D. 38.

272 Sec. 34.

273 (1963) 17 P.D. 1319.

274 On the other hand, in State of Israel v. Hadad (1970) (I) 24 P.D. 7 the court recognized the validity of an exemption clause relating to bodily injury contained in a contract for sale of junk, through a tender issued by the State. H. Cohn J. noted, at p. 12, that Zim v. Maziar dealt with a passenger who sought to use a “means of monopolistic public conveyance in the hands of Zim”, whereas the case at bar dealt with a sale to experienced merchants of a non-vital commodity. See also Halawi v. Mifal Hapayis (1973) (I) 27 P.D. 173 and Lagil Trampolin Ltd. v. Nahmias (1975) (I) 29 P.D. 63. The Standard Contracts Law, 1964, may also apply to exemption clauses included in a standard contract within the meaning of this law. On this subject see Shalev, , Exemption Clauses (Jerusalem, 1974, in Hebrew)Google Scholar.

275 Friedmann, supra n. 182 at p. 295. See also Riesenfeld v. Jacobson (1963) 17 P.D. 1009 and Nathan v. Abdullah (1970) (I) 24 P.D. 455, in which the question arose whether a promise by a married man to marry another woman after divorcing his wife is void on grounds of public policy.

276 See our next article ”The Independent Development of Israeli Law”.

277 See supra n. 244 and accompanying text. However, the theory that this branch of the law is based upon “implied contract” (discussed in Goff and Jones, supra n. 280, at p. 5 et seq.) did not gain any ground in Israel. On this question the Israeli courts adopted an approach close to that of Lord Mansfield in Moses v. Macferlan (1760) 97 E.R. 676 and Lord Wright in the case of Fibrosa v. Fairbairn [1943] A.C. 32. See, e.g., Bar-On v. Topol (1954) 8 P.D. 394, Electrical Co. Ltd. v. Helka 6 (1966) (I) 20 P.D. 253. This was further extended in the recent case of Peliimport v. Ziva Gaigi discussed infra.

278 This is so for the trespasser who builds or plants on another man's property. See Friedmann, supra n. 98 and text at nn. 26–7. The relevant provisions of the Mejelle were in the meantime replaced by Israeli legislation. The Mejelle also deals with the duty to compensate for property used without the owner's authority or pursuant to an invalid agreement. See Kalman and Teichner v. Eckhaus (1967) (I) 21 P.D. 7. According to the Mejelle the duty to pay depended on whether the property bears fruit. See Ben Menachem v. Mahala (1954) 8 P.D. 917.

279 Aviam v. State of Israel (1971) (I) 25 P.D. 665; Meir v. Jewish Agency (1974) (I) 28 P.D. 393.

280 The Restatement of the Law of Restitution views constructive trust as a remedy designed to prevent unjust enrichment (sec. 160). English law adopts a different approach, see Goff, and Jones, , The Law of Restitution (London, 1966) 37Google Scholar. For the Israel law on the subject see Loan Ass. Ltd. v. Kadar (1964) (IV) 18 P.D. 483; Howard v. Melamed (1968) (I) 22 P.D. 100.

281 The source of this rule is Bilbie v. Lumley (1802) 102 E.R. 448. For exceptions to the rule see Goff and Jones, op. cit. at p. 85 et seq., and Restatement, Restitution, §§ 44–55.

282 (1969) (I) 23 P.D. 604.

283 See note on this decision: Elman, , “Mistake of Fact and Mistake of Law” (1973) 8 Is. L.R. 145Google Scholar. The limits of this rule are discussed in Friedmann, , The Law of Unjust Enrichment, at p. 154et seq.Google Scholar See also Hai v. Cohen (1971) (II) 25 P.D. 339, 356 and Wilner v. City of Rishon LeZion (1973) (I) 27 P.D. 160.

284 (1975) (I) 29 P.D. 597.

285 Gordon, , “Effect of Reversal of Judgment on Acts Done between Pronouncement and Reversal” (1958) 74 L.Q.R. 517, 527Google Scholar. See also Ginossar, , “Nuisance Between Litigants” (1970) 2 Mishpatim 221Google Scholar.

286 Execution Law, 1967, sec. 18(a) (21 L.S.I. 115) and Gordon, supra n. 285, at p. 521 et seq.

287 Sussmann J. accepted the argument that profits realized from selling to the appellant's customers was actually derived from a propriatory interest of the appellant, i.e., his goodwill. H. Cohn J. left this question open. It is, however, clear that the court would have reached the same conclusion even if it were assumed that the profits had not been obtained by infringing a proprietary interest of the appellant.

288 The Restatement of the Law of Restitution adopted such a general principle (sec. 1). But it seems English law does not recognize a general principle of restitution on the ground of unjust enrichment (see Goff and Jones, supra n. 280 at p. 13), but rather a substantial number of categories within which restitution is granted and which are capable of further development and extension (Munkman, , The Law of Quasi-Contracts (London, 1951) 10Google Scholar. However, the view recently expressed by Lord Denning, M.R., in Greenwood v. Bennett [1972] 3 All E.R. 586, 589, may prove an important step toward recognizing a general doctrine of restitution aimed at preventing unjust enrichment at the expense of another. For a discussion of this case and its implications, see note by Anderson, in (1973) 36 M.L.R. 89 Cf. also Von Caemmerer, , “Problèmes Fondamentaux de l'Enrichissement Sans Cause” (1966) Rev. Intern. de Droit Comp. 573Google Scholar.

289 The subject of declaratory judgments is today regulated in England by statute and doubt has been cast on their being in the nature of an equitable remedy: see Hanbury, , Modern Equity (9th ed., London, 1969) 81Google Scholar. In Israel, at any rate, it was deemed an equitable remedy. See Sussmann, , Civil Procedure (4th ed., Tel Aviv, 1974, in Hebrew) 435Google Scholar. But this has been queried in “Gad” v. Cohen (1974) (II) 28 P.D. 413, 418–19. See also Zamir, , The Declaratory Judgment (London, 1962) 187et seq.Google Scholar

290 David and Brierly, supra n. 9 at p. 287.

291 On the question of whether equitable rights are in rem or in personam, see Hanbury, op. cit. at p. 15 et seq.

292 For a detailed discussion of the subject see Doukhan-Landau, , Equitable Rights to Land and the Remedy of Specific Performance (Jerusalem, 1968, in Hebrew)Google Scholar.

293 Eliash v. Director of Lands (1931) 1 P.L.R. 735. A somewhat unusual result was thus reached under which a constructive trust may be imposed but an express trust may not be created.

294 See e.g., the opinion of Cheshin J. in Liebman v. Lifschitz (1952) 6 P.D. 57, 89, and of Sussman J. in Loans Ass'n Ltd. v. Kadar (1964) (IV) 18 P.D. 483, 491 and in particular, Inzel v. Koogelmas (1975) (I) 29 P.D. 663, 666.

295 (1974) H.H. no. 1196, p. 22.

296 See Weisman, , “The Land Law: A Critical Analysis” (1970) 5 Is. L.R. 383–8Google Scholar.

297 Hire and Loan Law, 1971, sec. 31 (25 L.S.I. 157). Cf. Weisman, ibid., at pp. 429–30.

298 See supra text at n. 243.

299 For a detailed discussion of this subject see Dinstein, , International Law and the State (Tel Aviv, 1971, in Hebrew) 141–43Google Scholar.

300 Stampfer v. A.G. (1956) 10 P.D. 5 and Eichmann v. A.G., supra n. 95; Dinstein, op. cit. at p. 143.

301 Dinstein, id. It seems that the first view has prevailed.

302 See supra text at n. 162.

303 See the final article in this series, “Independent Development of Israeli Law”.