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Published online by Cambridge University Press: 16 February 2016
More than twenty years ago, a study of the legal status of the kibbutz pointed out the shortcomings of the existing legal framework and its failure to deal with distinctive features of kibbutz society. The study cited a 1960 District Court decision in a tort case which expressed surprise and dismay that, “in the twelfth year of Israel's independence … it is still necessary to decide matters concerning the unique way of life of the kibbutz and the norms governing it – as well as the legal consequences of a conflict between the kibbutz world and the ‘outside’ world – according to law that did not take into account the possibility of the existence of an entity like the kibbutz and pursuant to criteria that are not at all appropriate”. In 1984, Justice Barak quoted that passage to the same effect and we can do the same today.
1 Weisman, , “The Kibbutz: Israel's Collective Settlement,” (1966) 1 Is.L.R. 99Google Scholar.
2 Nissim v. Abu-Kishak (1960) 22 P.M. 22, at 28; see Weisman, supra n.l, at 120.
3 Honovitz v. Cohen (1984) 38(i) P.D. 413, at 425.
4 Hassneh Israel Insurance Co. v. Reif (1966) 20(ii) PD. 393, at 400. A regulation adopted in 1973 defines the kibbutz as “a society … which maintains a cooperative community of members organized on the basis of communal ownership of property, whose goals are self-labour, equality and cooperation in all areas of production, consumption and education and which has been classified as a kibbutz by the Registrar of Cooperative Societies”. Cooperative Societies Regulations (Membership), 1973, K.T. no. 2977, p. 872.
5 Weisman, supra n. 1, at 115.
6 Chapters on the kibbutz were incorporated in the Cooperative Societies Bill, 1965, H.H. no. 666, pp. 306,323-325; Cooperative Societies Bill, 1968, H.H. no. 778, pp. 249, 273-275; and Cooperative Societies Bill, 1971, H.H. no. 964, pp. 3, 27-29. These bills were not enacted, largely because of controversy over the provisions dealing with the moshav, not the kibbutz.
In contrast to the Cooperative Societies Ordinance, special provision has been made for the economic features of the kibbutz under a number of laws dealing with fiscal matters. See, e.g., infra n. 64.
7 For example, Cooperative Societies Regulations (Liquidation), 1984; Cooperative Societies Regulations (Establishment), 1976; Cooperative Societies Regulations (Conduct and Audit of Accounts), 1975; Cooperative Societies Regulations (Membership), 1973; Cooperative Societies Regulations (Arbitration), 1976.
8 Cooperative Societies Ordinance, secs. 8(3), 9(1); Cooperative Societies Regulations (Establishment), 1976, secs. l(b), 5-6. The use by individual kibbutzim of provisions formulated by kibbutz organizations is recognized, for example, in Cooperative Societies Regulations (Membership), supra n. 4, at sec. 19.
The standard kibbutz charters published by the United Kibbutz Movement (T'nuat Hakibbutzim Hame'uhedet) and by the Kibbutz Artzi (both undated) are identical insofar as pertinent here. They are hereinafter cited “Standard Kibbutz Charter”.
9 See Arts. 48, 53, 54, 66, 67, 68 of the Standard Kibbutz Charter.
10 Galil v. Galil (1979) 33(ii) P.D. 324, at 330-331; Hassneh Israel Insurance Co. v. Reif, supra n. 4.
11 Galil v. Galil, ibid., denying a claim by an ex-member against the kibbutz allegedly based upon ideological and social values apart from provisions of the kibbutz charter. See infra n. 117.
12 E.g., Herbst v. Kibbutz Ginegar, (Nazareth Dist. Ct. 1987 unpublished, applying good-faith provision of Contracts (General Part) Law, 1973, sec. 39 (27 L.S.I. 117)); Hanunu v. Kibbutz Tel-Katzir, (Nazareth Dist. Ct. 1986 unpublished, applying specific performance and recission provisions of Contracts (Remedies for Breach of Contract) Law, 1970, sees. 3(2), 6-7 (25 L.S.I. 11); discussed infra, at nn. 98-100); Abramowitz v. Kibbutz G'lil Yam (Tel Aviv-Jaffa Dist. Ct. 1978 unpublished, referring to the specific performance provision, supra). Also pertinent is the rule that a contract of adhesion is to be construed against the party which drafted it. Although entry into a kibbutz as a member involves acceptance of the charter, many members are quite unaware of its provisions and have not even seen it, as disclosed at conferences attended by the authors.
13 The Standard Kibbutz Charter, sec. 36, gives the kibbutz general meeting broad authority to expel a member upon two-thirds vote, after a specified procedure and on the basis of a number of grounds, including conduct prejudicial to the principles or way of life of the kibbutz, violation of the charter or failure to comply with a decision of the general meeting. The courts have held expulsions invalid on the ground that underlying decisions of the kibbutz general meeting were unreasonable and without basis, upon their independent review of the facts (Herbst, supra n. 12; Hanunu v. Kibbutz Tel-Katzir, (Nazareth Dist. Ct. 1978 unpublished, discussed infra, at nn. 93-95). In a related case, although the expulsion decision was held lawful and proper, the Court gave the member a further opportunity to comply with the kibbutz demand and avoid expulsion (Hanunu, supra n. 12). Another decision provided a provisional remedy, preventing execution of the expulsion until appeal proceedings were resolved (Abramowitz, supra n. 12); cf. Novak v. Kibbutz Merhavia, (Nazareth Dist. Ct. 1974 unpublished), holding that a kibbutz violated its obligations in compelling a member to leave, and awarding damages.
The legal problems related to kibbutz membership are to be dealt with in a future article by the authors.
14 Lavi v. Kibbutz Ein Harod Me'uhad, (Nazareth Dist. Ct. 1986 unpublished) 1. The case involved a claim that the kibbutz was obligated to provide financial assistance to a non-member adult who was the child of former members (one deceased, one moved to a moshav). See discussion infra, at nn. 118-121. The Court's view of “justice and morality” was presumably based on its understanding of family obligations in the non-kibbutz context.
15 These issues were raised in Weisman, supra n.1, at 118-120.
16 Shapiro, , “Law in the Kibbutz: The Search Continues”, in Justice and Social Control: Inside or Outside the Law, Sebba, L., ed., (forthcoming)Google Scholar; Shapiro, , “Law in the Kibbutz: A Reassessment” (1976) 10 Law & Society Review 415CrossRefGoogle Scholar; Benziman, Ha'aretz 27.10.89, p. B-2; Hanunu v. Tel-Katzir, (Nazareth Dist. Ct. 1976 unpublished), 2-3; Weisman, supra n. 1, at 121-125.
17 Secs. 183,185(a), and 186 of the Cooperative Societies Bill, 1971, supra. 6, at 29. The same provisions were contained in the 1968 bill (supra n. 6, at 249). The prior 1965 bill contained provisions similar to sees. 185 and 186 (in somewhat different language) but none like sec. 183 (secs. 143 and 144, supra n. 6, at 325). The provision regarding maintenance in the three bills was accompanied by conditions that the kibbutz was to be a party to such proceeding against a member, and that a new member was required to notify the kibbutz of any maintenance order to which he was subject, and failure to do so was ground for termination of membership. 1971 Bill, sec. 185(b), supra, at 29; 1968 Bill, sec. 185(b), supra, at 275; 1965 Bill, sec. 143 (b), supra, at 325.
18 Civil Wrongs Ordinance, sec. 76(1), (2 L.S.I. [N.V.] 23).
19 Id., at sec. 80.
20 Estate of Harad v. Keich (1972) 26(ii) P.D. 490; Paz v. Tabkuli, (Nazareth Dist. Ct. 1975 unpublished); Sela v. Estate of Garber, (Haifa Dist. Ct. 1975 unpublished); Nissim v. Abu-Kishak, supra n. 2.
21 Honovitz v. Cohen, supra n. 3 affirming Honovitz v. Cohen (1981) 35(iv) P.D. 281.
22 Honovitz (1984), supra n. 3, at 424 (Barak), 438 (Ben-Porath), 440-441 (Y. Kahan), 441 (Bejski); Honovitz (1981), ibid, at 309-310 (Ben-Porath).
23 Honovitz (1984), at 424, 438Google Scholar; Estate ofHarad v. Keich, supra n. 20, at 498-499.
24 Estate of Harad, ibid., at 499.
25 Honovitz (1984), at 438Google Scholar.
26 For the rules governing third-party benefits received by tort victims, see Law of Torts Amendment (Repair of Bodily Harm)Law, 1964 (18 L.S.I. 64); Honovitz (1984), at 428–431(Barak)Google Scholar; Honovitz (1981), at 291–294 (S. Levin), 296 (Bejski)Google Scholar; Hassneh Israel Insurance Co. v. Reif, supra n: 4, at 402-403 (Berinson).
As illustrated by Estate of Harad v. Keich, supra n. 20, at 494,497, compensation for past expenses of care and earnings, reimbursement, to the extent provided by the kibbutz, are to be awarded to it. Keick also shows that allocation of recovery between the kibbutz and its member is often rendered unnecessary by agreement of the parties, based upon recognition that all damages go into the common kibbutz fund and there is no risk of multiple recovery. Id., at 496, 498; Honovitz (1984), at 419, 431; Honovitz (1981), at 286, 293, 299Google Scholar; Cohen v. Honovitz (1978) (1) P.M. 397, at 400; Paz v. Tabkuli, supra n. 20; Bodel v. Hassneh Israel Insurance Co., infra n. 32.
27 Nissim v. Abu-Kishak, supra n. 2, at 29; see also Katyan v. Chim-Avir Ltd. (1956) 12 P.M. 350, at 356, cited in Nissim. Among the grounds cited were that a kibbutz member has a moral obligation to repay the kibbutz; the kibbutz is a kind of organization for mutual insurance; continuing kibbutz membership was like continuing to work for an employer despite impairment of earning power; and a kibbutz member may leave and cease to be a member. While one commentator sought to put the District Court's listed reasons into logical sequence (Weisman, supra n. 1, at 120-121), the Court simply listed them as alternative, cumulative or complementary and appeared to have been motivated by the “sense of justice” referred to in the text.
28 See supra n. 19.
29 See Honovitz (1984), at 420–421 (Barak)Google Scholar; Hassneh Israel Insurance Co. v. Reif, supra n. 4, at 411-12 (Kister), 414 (Agranat). The limitation to pecuniary loss caused family members by death has two elements — the exclusion of non-pecuniary injury (emotional and other) and, less obviously, the exclusion of losses not associated with the family maintenance relationship.
30 Supra n. 4.
31 Supra n. 21.
32 Zlotsky v. Zlotsky, (Haifa Dist. Ct. 1985 unpublished); Bodel v. Hassneh Israel Insurance Co., (Jerusalem Dist. Ct. 1984 unpublished); Shani v. Katz, (Nazareth Dist. Ct. 1976 unpublished); Kolkowsky v. Estate of Garber, (Haifa Dist. Ct. 1975 unpublished); Katyan v. Chim-Avir Ltd., supra n. 27.
33 Honovitz (1984), at 426–428 (Barak)Google Scholar; 440 (Kahan); Honovitz (1981), at 297–298 (Bejski)Google Scholar. The Justices noted the kibbutz recognition of the family unit in rules governing support of children, in family housing and other matters. See also Reif, supra n. 4, at 400, 405 (Berinson).
34 Honovitz (1984), at 426–427Google Scholar.
35 Ibid.
36 Honovitz (1981), at 298–299 (Bejski)Google Scholar; Reif, at 400-403 (Berinson), 410-411 (Kister). See also State of Israel v. Friedman (1972) 26(1) P.D. 718, in which Kister J. referred to the situation of a kibbutz wife who is awarded damages on the death of a husband as a matter of law, even though self-supporting in her own right as a kibbutz member. He compared it to the rule involved in that case, that a surviving wife's potential earnings were not to be taken into account in determining damages for loss of support. Kister J. agreed with adherence to the latter rule, although noting that the assumption of dependence did not fit trends in the status of women or the actual situation in most families. Id., at 726.
37 Reif, at 400-401. In support, Berinson J. cited a section in the Cooperative Societies Bill of 1965 (see supra, at n. 17) under which claims for support and maintenance (among others) were to be determined without regard to the fact that the claimant was a kibbutz member, supported by a kibbutz or dependent upon a kibbutz member; he deemed this declaratory of existing law. Id., at 401.
38 Shereshevsky, , Family Law (Jerusalem, Ruben Mass, 3rd ed., 1984, in Hebrew) 140, n. 18aGoogle Scholar. See also infra at nn. 82-83.
39 Honovitz (1984), at 440–441 (Kahan), 442 (Bejski)Google Scholar; Honovitz (1981), at 296–297 (Bejski)Google Scholar; Cohen v. Honovitz, supra n. 26, at 405. Note that the same District Judge decided both Katyan (n. 27, supra), a death case, and later Nissim (nn. 20,27 supra), involving an injured kibbutz member, on essentially similar reasoning.
40 Honovitz (1981), at 294 (S. Levin)Google Scholar; Cohen v. Honovitz, ibid.; Nissim v. Abu-Kishak, supra n. 2, at 29; Katyan v. Chim-Avir Ltd., supra n. 27, at 355.
41 Honovitz (1981), at 295–296 (S. Levin)Google Scholar; Katyan v. Chim-Avir Ltd., supra n. 27, at 356; Nissim v. Abu-Kishak, supra n. 2, at 29; contra, see Honovitz (1981), at 300 (Bejski), 310 (Ben-Porath)Google Scholar.
42 Honovitz (1984), at 432–439Google Scholar; (1981), at 301-312.
43 Reif, supra n. 4, at 413-418.
44 Honovitz (1984), at 434–436Google Scholar; (1981), at 308.
45 Honovitz (1984), at 436Google Scholar.
46 Ibid.; Honovitz (1981), at 308-309.
47 Reif, supra n. 4, at 416.
48 See, e.g., Goldschmidt, , “The Kibbutz Widow–Who Supports Her?” (Aug. 8, 1986) 164 Yahad 13Google Scholar; “Special Kibbutz Legislation”, No. 166, September 5, 1986, p.16Google Scholar.
49 Honovitz (1984), at 433, 436–437Google Scholar; Honovitz (1981), at 308Google Scholar.
50 Honovitz (1981), at 298Google Scholar.
51 Honovitz (1984), at 437–438Google Scholar.
52 See supra, at n. 19. In England of 1846 from which the statute was derived (see Honovitz (1984), at 420Google Scholar), it was no doubt reasonable to consider the family household as embracing those most likely to be economically injured.
53 Honovitz (1984), at 441Google Scholar. It was also noted that the minority's proposal to award partial damages on the basis of an estimate of the likelihood that the claimant would leave the kibbutz involved speculative and uncertain judgment and in effect acknowledged the unfairness of denying the claims. The speculative nature is aggravated by the view that the likelihood of leaving is to be appraised as of the time of the accident, without taking into account the death of the spouse. See Honovitz (1984), at 428 (Barak), 437 (Ben-Porath)Google Scholar.
54 Ibid., at 419-420, 426 (Barak); Honovitz (1981), at 286-287 (S. Levin), 298 (Bejski); Reif, supra n. 4, at 412 (Kister).
55 See infra section I(A)(3).
56 Zlotsky v. Zlotsky, supra n. 32. In that case, the couple were young and were undertaking special education and training for certification in their respective fields. The Court considered their earning capacities in those fields and applied a standard factoring method of computing loss of maintenance. It held that, under prior decisions, the couple's status on a kibbutz had no effect upon the right of the dependent spouse to recover loss of support and also cited the likelihood of the widower leaving the kibbutz.
57 Id., at 4. The Court allowed for the use of general statistics as to the percentage of women working outside the home in the absence of evidence regarding the individuals involved.
58 For the kibbutz principle of the equality of work, see, e.g., Reif, supra n. 4, at 400.
59 Reif, supra n. 4, at 405.
60 The situation is complicated by the current tendency for some kibbutzim to offer such services to outsiders – e.g., care of children or aged, renting apartments, etc., thus attempting to turn these activities into profit centers. Combination of business and domestic household functions may equally be true of the work of male “breadwinners” on a kibbutz. In Honovitz, the deceased husbands had been engaged in bookkeeping, mechanical work and management of an enterprise and of the kibbutz itself, which could have included household activities. See Honovitz (1984), at 419Google Scholar; Honovitz (1981), at 286Google Scholar.
61 Ibid.,
62 Cohen v. Honovitz, supra n. 26, at 408-409.
63 Ibid., at 409.
64 Under the income tax law, a system has been adopted by which the kibbutz is the taxable entity, but pays income tax on the basis of an allocation among the members, applying the model of a partnership in which income is taxed to the partners. Taxable income imputed to each kibbutz family unit consists of a proportionate share of the earnings of the kibbutz, computed as kibbutz revenues less expenses for materials, equipment, depreciation of fixed assets and cost of services other than those of members. Tax is then computed for each family unit with applicable deductions, credits, etc. (including credit points for each adult, all deemed to be working persons). See Rafael, & Efrati, , Income Tax Law (Jerusalem, Schocken, 2nd. ed., 1986, in Hebrew) vol. 2, pp. 364–378Google Scholar; Income Tax Ordinance, secs. 54-58 (1 L.S.I.[N.V.] 145). For purposes of national social insurance payments, special rules have been provided for determining income of kibbutz members using kibbutz expenditures for maintenance of members as the basic component. See National Insurance Regulations (Assessment of Premiums), 1954 as amended, sec. 5b.
Another illustration of special provisions for the kibbutz is the “bank shares arrangement”, by which the Government has guaranteed the purchase of shares of certain banks held by members of the public and entered into savings plans under prescribed conditions. Kibbutz holdings of such shares was considered held by a number of individuals, arrived at by dividing the number of members by two. Shares were deemed held by persons of retirement age (entitled to special favourable terms) according to the number of members of the particular kibbutz that had reached retirement age. See Agreements between the Banks and the Government of Israel and Amendment No. 2 to the Banks' Notices Regarding Provision of Commitments for the Purchase of Bank Securities, Y.P., no. 3024, pp. 1496-1500.
These special arrangements illustrate how legislation or administrative rulings can provide distinctive rules applicable to the kibbutz situation, rather than leaving issues for judicial interpretation of general law.
65 Shani v. Katz, supra n. 32, at 6-7.
66 See supra, at n. 36.
67 Honovitz (1984), at 419–420Google Scholar (Barak); Honovitz (1981), at 286–287Google Scholar (S. Levin), 310-312 (Ben-Porath).
68 Katyan v. Chim-Avir, supra n. 27, at 357.
69 See supra, at nn. 33-35.
70 Honovitz (1981), at 311Google Scholar.
71 Ibid.; for reference to the cited kibbutz rule, see infra n. 89.
72 This is explicitly stated in section 3a of the Family Law Amendment (Maintenance) Law, 1959 (13 L.S.I. 73), as enacted in Family Law Amendment (Maintenance) (Amendment No. 2) Law, 1981 (35 L.S.I. 353). As explained below, there is a dispute about the applicability of this section to married persons whose duties to maintain children are covered by the personal law of a religious community (e.g., Jewish parents); but as a practical matter the same rules have been found to apply under Jewish personal law and under the statute. See infra, at nn. 82, 84.
73 See supra, at nn. 44-46.
74 Reif, supra n. 4.
75 Id., at 406. When kibbutz members work outside the kibbutz in independent employment or enterprise, their regular income is the measure of lost earnings. See, e.g., Estate of Harad, supra n. 20, at 495.
76 Injured kibbutz members: Sela v. Estate of Garber, supra n. 20; Nissim v. Abu-Kishak, supra n. 20, at 30; deceased kibbutz members: Zlotsky v. Zlotsky, supra n. 32; Bodel v. Hassneh Israel Insurance Co., supra n. 32; Shani v. Katz, supra n. 32; Kolkowsky v. Estate of Garber, supra n. 32; Katyan v. Chim-Avir Ltd., supra n. 27.
77 Supra n. 20.
78 Id., at 494.
79 Id., at 494-495; Paz v. Tabkuli, supra n. 20; see Katyan v. Chim-Avir Ltd., supra n. 27, at 357.
80 See section I(A)(2).
81 Secs. 2(a) and 3(a) of the Family Law Amendment (Maintenance) Law, 1959, supra n. 72, provide that “the provisions of this Law shall not apply” to maintenance of spouses and minor children by persons subject to a personal law, including Jews, Moslems, Druse and members of other recognized religious communities. Secs. 2(b) and 3(b) state that the Law applies in absence of such personal law or, with respect to minor children, if the personal law does not provide for maintenance.
A broad interpretation of these provision to exclude application of all substantive and procedural provisions of the 1959 Law was adopted recently by the Supreme Court in cases involving Jews and Moslems. Koplowitz v. Koplowitz (1988) 43(i) P.D. 834; Omri v. Zu'evi (1985) 39(ii) P.D. 113. See also, as to spouses, Shereshevsky, Family Law, supra n. 38, at 133-134, 144 n. 27a; Shava, , The Personal Law in Israel (Tel Aviv, Masada, 2nd ed., 1983, in Hebrew) 231–240Google Scholar (but urging applicability of procedural provisions); as to minor children, Shereshevsky, at 469-470, 472 n. 7; Shava, at 312-344.
82 The 1959 Maintenance Law was amended in 1976 to add sec. 2a on support of a spouse: Family Law Amendment (Maintenance)(Amendment) Law, 1976, 30 L.S.I. 99, and in 1981 to add sec. 3a on support of minor children: Family Law Amendment (Maintenance) (Amendment No. 2) Law, 1981, supra n. 72. It is not clear whether these later amendments are covered by the 1959 provisions that excluded application of “the provisions of this Law” to Jews and others; and the question was not explicitly dealt with in the recent decisions regarding procedural provisions of the original 1959 statute, supra n. 81. The legislative history of the amendments shows an intent to apply them to the majority Jewish population and to others covered by a personal law; and sec. 2a, far from supplanting Jewish religious law, would expand its coverage. See discussion in Rosen-Zvi, , Israeli Family Law: The Sacred and the Secular (Tel Aviv, Papyrus, 1990, in Hebrew) 161–162, 216–318Google Scholar; Shereshevsky, supra n. 38, at 145 n. 30, 146 n. 31, 471, 474 n. 7; Shava, supra n. 81, at 241-251, 253 n. 6a. For the conflict of judicial opinion on this point, see Sporta v. Sporta, (1978) 32(ii) P.D. 709, at 712-714 (spouses, sec. 2a); Kronberg v. Kronberg (1985) 39(iii) P.D. 358, 359-360 (minor children, sec. 3a); Portuguez v. Portuguez (1982) 36(iii) P.D. 449, at 459-462, 463-465 (same).
83 See Shereshevsky, supra n. 38, at 134-152 on the scope of liability to spouses for maintenance under Jewish law; preceding note regarding sec. 2a; and supra n. 38 regarding the kibbutz wife's “earnings”.
84 See Rosen-Zvi, supra n. 82, at 161-162, Shereshevsky, supra n. 38, at 471-475, 480-487; Shava, supra n. 81, at 254-312 on the scope of liability to minor children under Jewish law; and n. 82 regarding sec. 3a. The Kronberg and Portuguez decisions stated that Jewish law and sec. 3a would yield the same result.
85 See sections I(B)(3) and II(B)(3) below.
86 (1964) 18(ii) P.D. 34.
87 Id., at 35.
88 Kahane v. Kahane, (Supreme Court decision, 1980 unpublished). The Court referred to the value of the mother's income from work, and to the kibbutz expenditures per child (including services) as shown by kibbutz accounts and calculations.
89 Sec. 78 of the Standard Kibbutz Articles, see supra n. 7. There is no comparable provision with respect to requesting participation by a spouse outside in support of a spouse on the kibbutz.
90 See also supra, at nn. 72, 84.
91 Lazerovitz v. Lazerovitz (1975) 28(ii) P.D. 436; Hanunu v. Kibbutz TelKatzir, supra n. 13.
92 Lazerovitz v. Lazerovitz, ibid., at 440, 442.
93 Hanunu v. Kibbutz Tel-Katzir, supra n. 13, at 6, 7. See discussion of cases involving expulsion of members, supra n. 13.
94 Id., at 4-6. Hanunu is indicative of a problem thathas arisen on a number of kibbutzim when a family is divided, not because of legal separation or divorce but voluntarily, for economic reasons. One spouse, usually the husband, ceases to be a kibbutz member in order to work independent of the discipline and economic rules of the kibbutz, but the family seeks to continue living on the kibbutz by virtue of the wife's membership. Some kibbutzim have allowed a non-member spouse to continue residing with his kibbutz family and to pay for kibbutz services. Others have insisted that the spouses' individual memberships be conditioned upon both being members. (This has even been expressed in a form signed by new members under which a split of the family within a specified period would be ground for expulsion.) A number of kibbutzim have reportedly obtained court orders preventing non-member spouses from residing on the kibbutz—sometimes spelled out as presence more than a certain number of days a year — or from using the dining hall, laundry or other facilities. See Hadaf Hayarok, 2 March 1986, pp. 4–5, 14–15Google Scholar. See, e.g., n. 96 infra. For proposed legislation on the right of the kibbutz to remove non-members and ex-members by summary court procedure, see the bills cited supra in n. 6.
95 Hanunu v. Kibbutz Tel-Katzir, supra n. 13, at 7, 8. The Court nevertheless pointed out that the kibbutz was not an alternative to a welfare office in dealing with personal problems of economic distress. Id., at 8.
96 In 1982, upon application of the kibbutz, the Magistrates' Court issued an order directing the husband to leave the kibbutz and enjoining him from entering except for purposes of visiting his family as arranged in advance with the kibbutz. Tel-Katzir v. Hanunu (Tiberias Mag. Ct. 1982 unpublished).
97 In 1985, upon application of the kibbutz, the Magistrates' Court issued an order against Mrs. Hanunu's mother directing her to leave the kibbutz premises and not to enter without kibbutz permission. Tel-Katzir v. Sasson (Tiberias Mag. Ct. 1985 unpublished).
98 Hanunu v. Tel-Katzir, supra n. 12, at 15-18.
99 Id., at 18-19. We understand that the condition was met and that, therefore, the expulsion has not been carried out.
100 The proper presentation of the kibbutz charter appears to distinguish the 1986 Hanunu decision from the earlier 1978 case. The earlier suit involved a kibbutz demand that Mrs. Hanunu sue her husband for support of the children and yet there was no reference in the opinion to the charter provision which explicitly authorized such demand, see supra, at n. 89. This was apparently one of a number of cases in which the charter was not presented, the parties (and the Court) relying upon general knowledge of kibbutz structure and principles. For other such cases, see, e.g., Hai v. Hai (1976) 30(iii) P.D. 480, at 487-488; Reif, supra n. 4, at 400; Katyan v. Chim-Avir Ltd., supra n. 27, at 355.
101 Kahane v. Kahane, supra n. 88.
102 See n. 131 infra; see also infra sections II(B)(3) and II(C) on harmonizing tort and maintenance approaches in claims against kibbutz members.
103 See sec. 186 at n. 17 supra.
104 See sec. 185(b), supra n. 17.
105 The statutes governing personal injury and family maintenance, give a person who provides for the party who sustained injury or who is entitled to maintenance, the right to recover such past amounts from the person liable for such injury or maintenance: Law of Torts Amendment (Repair of Bodily Harm) Law, 1964, sec. 2 (18 L.S.I. 64); Family Law Amendment (Maintenance) Law, 1959, sec. 16(b), supra n. 72.
106 In 1988, the Knesset adopted a statute prohibiting the payment by any corporate entity of traffic fines imposed on others, in order to reinforce the deterrent effect of the fines: Traffic Ordinance (Amendment No. 20) Law, 1988, S.H. no. 1242, p. 50Google Scholar; H.H. no. 1839, p. 270. Several months later, this provision was amended to exclude the kibbutz from its coverage, in recognition that communal economic arrangements call for the kibbutz — not its members — to pay liabilities. (The amendment in terms excluded any entity whose members are obliged to put at its disposal all their work capacity and to transfer to it all their assets.) Traffic Ordinance (Amendment No. 21) Law, 1988, S.H. no. 1262, p. 216; H.H. no. 1906, p. 298. Nevertheless, many kibbutzim have adopted the practice of requiring part of such fines to be paid from a member's individual budget; this also reflects the fact that many kibbutz members in fact have disposable funds.
107 Weisman, supra n. 1, at 118-119.
108 Motor Vehicles Insurance (Third-Party Risks) Ordinance (New Version), 1970, secs. 2, 3 (2 L.S.I. [N.V.] 74, at 75-76); Road Accident Victims (Compensation) Law, 1975, (29 L.S.I. 311).
109 (1983) 37(iv) P.D. 167.
110 Id., at 168.
111 Hubert v. Kibbutz Degania Aleph, (Nazareth Dist. Ct. 1982 unpublished) 27.
112 The gap may be reduced by taking a broad view of the scope of work or employment for kibbutz members, so as to embrace all activities assigned pursuant to the regular kibbutz work schedule (“sidur avoda”). Cf. Doron v. National Insurance Institute, (Regional Labour Court, Nazareth, 1985 unpublished), holding that an accident sustained by an 8th grade student, assigned pursuant to the kibbutz work schedule to prepare and operate recreational equipment during a school holiday, was a “work accident” under the National Insurance Law.
113 This and other solutions are discussed in section II(C) below.
114 Sec. 66 of the Standard Kibbutz Charter (see supra n. 8) states that the kibbutz shall provide all the material, social and cultural needs of its member depending upon its capacity and bearing in mind the kibbutz economy and its development as well as other obligatiohs of the kibbutz. Sec. 67 provides that members' needs shall include the maintenance and education of their minor children living in the kibbutz community and, with consent of the kibbutz, of those living outside the area. The charter does not expressly deal with the obligation for maintenance of a spouse, or for maintenance of children off the kibbutz without consent of the kibbutz. Nevertheless, in none of the reported cases against kibbutz members for maintenance was there a denial of the member's ability to pay or of the kibbutz responsibility for such judgments; the defences related to the extent of liability under general principles of family law. E.g., Galil v. Galil, supra n. 10; Halaak v. Halaak (1975) 29(ii) P.D. 199.
115 See Tedeschi, , “Maintenance Obligations in the Civil Law” (1974) 6 Mishpatim 242, at 244–246Google Scholar.
116 Execution Law, 1967, sec. 74 (21 L.S.I. 128); Weisman, supra n. 1, at 119, n. 85; Hai v. Hai, supra n. 100, at 488-489, 491; Reif, supra n. 4, at 410.
117 Galil v. Galil, supra n. 10, at 330-331. As the Court there pointed out, the wife would have no claim against the kibbutz if she was never a member or if she terminated her membership or left without the consent of the kibbutz; but this would not free the kibbutz member husband of his obligation to support her.
118 Nazareth Dist. Ct. 1986 unpublished.
119 Id., at 8-9. Indeed, the kibbutz had thereafter offered to admit the son and care for him but had declined to accept the son's wife.
120 Id., at 10-11. An expanding view of the kibbutz obligation to members' children is reflected in a kibbutz movement guideline recently adopted with regard to assistance to an adult child leaving the kibbutz. It provides for payment by the kibbutz towards expenses of housing and other needs, and is regarded as fulfilling the parents' moral obligation to help their adult children get started in life in the society at large. The amount of assistance is based upon a multiple of the amount expended for maintenance of members.
121 Supra, at n. 14.
122 See Contracts (General Part) Law, 1973, supra n. 12, sec. 34.
123 Supra n. 10.
124 Supra n. 100, at 484-486. Bejski J. also cited the kibbutz rule providing for support of members and dependents living outside the kibbutz on the condition that it had recognized that the member had to live outside; in that case the kibbutz had not done so. Id., at 488.
125 Id., at 488-489.
126 Id., at 491.
127 Id., at 491-492.
128 Supra n. 114.
129 Id., at 200.
130 Galil v. Galil, supra n. 10, at 331.
131 Ekron v. Ekron, (Tel Aviv-Jaffa Dist. Ct. 1983 unpublished). There are cases other than maintenance claims that have used the kibbutz standard of living as a measure of damages. See Novak v. Kibbutz Merhavia, supra n. 13, at 24, in which damages paid by a kibbutz for improperly compelling a member to leave included an award for housing equivalent to the member's kibbutz housing.
132 Tel Aviv-Jaffa Dist. Ct. 1988 unpublished, reversed in Eder v. Eder (1988) 42(iii) P.D. 347 (per Elon, J.)
133 District Court decision, ibid., at 2.
134 Id., at 2; Supreme Court decision, supra n. 132, at 350. The District Judge stated that on the record before him there was no showing that the National Insurance Institute had approved the amounts claimed as income, it was not clear whether the amount was gross or net income, and to the best of the Court's knowledge insurance payments were not based upon total income but only up to a ceiling.
135 District Court decision, supra n. 132, at 3-4.
136 Supra n. 132, at 351.
137 Id., at 350, 351.
138 See supra nn. 64, 120. Expenditure on maintenance of members could be considered along with kibbutz earnings (as computed for income tax purposes).
139 See supra, at nn. 124-127.
140 Hai v. Hai, supra n. 100, at 491; see text after n. 127 supra. The Hai opinion indicates that, apart from the situation of total disability, the kibbutz standard of living was a reasonable basis for determining the amount to be awarded in maintenance.
141 See Reif, supra n. 4, at 400, quoting Marx, Critique of the Gotha Program. See Standard Kibbutz Charter, supra n. 8, secs. 49, 66. This proposition works to the material benefit of the kibbutz community when applied to claims involving members with high technical or managerial expertise. The kibbutz would recover substantial damages due to accidents to such members using the market standard, but would pay support claims against such members only on the basis of the average kibbutz living standard. However, with other members, the results could be unbalanced in the opposite direction.
142 See at nn. 116, 125-126 supra.
143 See section I(B)(1) of this article.
144 See sec. 186, at n. 17 supra.
145 See sec. 183, at n. 17 supra.
146 See at nn. 109-112 supra.
147 See sec. 185, at n. 17 supra, and said note.
148 See at nn. 114, 116 supra.
149 See at nn. 124-127, 135 supra.
150 Sections I(A) and II(A).
151 Sections I(B)(2) and II(B).
152 Section I(A)(2)(a).
153 Section I(A)(3).
154 Supra, at nn. 58-64.
155 Compare sections I(A)(2)(a) and I(B)(1).
156 Sections I(A)(3), II(B)(3) and II(B) at nn. 124-127.
157 Sections I(A)(3) and I(B)(3).
158 Supra, at nn. 10-14, 98-100, 119-121.
159 Compare section I(A)(3) and II(B)(3) with n. 64.
160 Section II(A).
161 Section I(A).
162 Suprn, at nn. 13, 93-99.
163 Supra, at nn. 118-121.