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The Sources and Nature of Jewish Law and its Application in the State of Israel, Part IV

Published online by Cambridge University Press:  12 February 2016

Menachem Elon
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To answer the question whether the Israel legal system is based on Jewish Law foundations we must examine the two main operative factors which affect and control the nature of that system, that is, the legislative activity of the Knesset and the judicial activity of the courts. The fact that Israel law recognizes, though to a limited extent, the principle of binding precedent renders the courts active participants in the law-making process. This freedom of activity is restricted and operates only within the framework of the provisions of existing positive law, but this framework is quite flexible, as we shall later have occasion to note. Such restriction does not exist at all with regard to the Knesset's legislative activity. The Knesset is the sovereign legislature, unfettered even by a Constitution, and is free to make such law as it deems fit. The question, therefore, is on what assumptions do the various elements—the Ministry of Justice, the Government and the Knesset—engaged in the legislative process, function generally with regard to the subserving sources and more particularly with regard to the manner in which the law of the State is to rest upon Jewish Law.

It is difficult from an examination even of a representative sample of enactments passed by the Knesset to affirm that a clear and consistent policy indeed exists in this important regard, but from time to time expression has been given by those concerned to some of these underlying assumptions and it is proper that we should glance at these.

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Israel Law Review , Volume 4 , Issue 1 , January 1969 , pp. 80 - 140
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1969

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References

1 Sec. 33 of the Courts Law, 1957.

2 (1948) 5 HaPraklit 101.

3 See (1968) 3 Is. L.R. 452–53, 456 and below p. 127. A considerable break from English case law was made by the Supreme Court; see Ibid.

4 (1964) 41 Divrei HaKnesset 463, 465.

5 Ibid. 473.

6 See the last chapter in Baba Metzia.

7 See (1951) 8 Dwrei HaKnesset 761, the observations of P. Rosen: “It may be noted that the difficulties I have mentioned do not arise in our country alone but also in other countries which, following Roman law, do not recognize the ownership of a building or part of a building as distinct from ownership of the soil. Such difficulties do not exist in the countries of Anglo-Saxon law. In England the separate ownership in buildings and flats and even in parts of flats is possible. The common law of America also follows in this matter English law and allows the separate ownership of flats. It is to be noted that contrary to Roman law which postulates single and undivided ownership of land and of everything attached thereto, the conception of the separate ownership of buildings and parts of buildings is known to Jewish Law. Jewish Law encounters nodifficulties at all with the question whether it is possible to divide the ownership of acooperative house among its members. On the contrary, the rule is that each member can force upon his fellows a severance of the land from the house. The question which has busied the students of Jewish Law, with the splitting of property, is what are the proprietary relations between the members after severance when nothing express has been agreed thereon at the date of severance. For example, what is the law regarding the upper roof that covers the whole house, the walls, the ceilings, the foundations, the corridors and staircases, the joint installations, the extent of the individual flat, the erection of an additional wall, the law of pre-emptive rights and in later times the law of insurance as well. On all these matters differences of opinion exist among the poskim but these differences refer to questions of the relations among neighbours.Of divided ownership itself there was no doubt.” See more recently the Land Law Bill, 1964, Part V, sees. 95–121.

8 (1951) 8 Divrei HaKnesset 765–66, 771–75.

9 Ibid. 765, 766, 767 and 775. In fact, the Ministry of Justice proposed adopting in general the Roman Law approach; see the Land Law Bill, 1964, sees. 37 and 97.

10 (1968) 3 IS.L.R. 450 n. 123.

11 (1951) 8 Divrei HaKnesset 767 and 775.

12 The section was as follows: “Wherever the provisions of this Law are insufficient for determining any rule, the court shall deal with the matter in accordance with the principles and precedents of Jewish Law”: (1952) 12 Divrei HaKnesset 2786; cf. (1952) 13 Divrei HaKnesset 266 ff. for the views of Dr. Warhaftig and the replies of H. Cohn, the Minister of Justice (now Cohn J. of the Supreme Court) and Dr. H. Rubin, on behalf of the Constitutional, Legislative and Judicial Committee. The latter held that even without a section such as that suggested by Dr. Warhaftig the courts would not refer to English law since cooperative housing would be statutorily controlled, in which case reference to that law under art. 46 was excluded, as had been held during the Mandate in connection with surety. Even if that is correct, an expresssection of this kind would require the courts to resort to Jewish sources and thus create a formal link between the State and the national law.

13 Mr. Unna, M., (1955) 18 Divrei HaKnesset 1659–60, 1672Google Scholar; (1956) 19 ibid.886–89.

14 Ibid.

15 Bill No. 280, 1957. It is to be regretted that the Government Bill was named “The Wage Protection Law” and not “The Wage Delay HaLanat HaSachar) Prohibition Law” according to the original Hebrew terminology; see below with regard to the Bailees Law p. 92.

16 MrNamir, M., (1956) 21 Divrei HaKnesset 373Google Scholar; see also the Explanatory Notes to the Bill.

17 Prov. III 28; (1956) 21 Divrei HaKnesset 376.

18 Almogi, Y., then Minister of Labour, (1958) 23 Divrei HaKnesset 1234.Google Scholar

19 See e.g. (1956) 21 Divrei HaKnesset 376, 380, 385, 390, 391, 398, 400, 404.Cf. the study by Y. Gross, note 21 below.

20 Rabbi Israel ben Aryeh Ze-ev HaCohen (the author of Hafetz Haim) in his book Ahavat Hesed, the opening of ch. 9. Cf.Maimonides, Hilchot Sechirut XIII, 7, on the duty of the employee also to work loyally and give all his time and attention to his tasks.

21 Unitzman, S., (1956) 21 Diurei HaKnesset 406.Google Scholar For further details, Gross, Y., “Wage Protection” (1960) 16 HaPraklit 72–86, 153–78.Google Scholar See also 37 Divrei HaKnesset 2462.

22 see (1968) 3 Is. L.R. 103.

23 Sifre on Deut. para. 119; Kiddushin 16b.

24 Sifre on Deut., ibid.

25 Kiddushin 15a.

26 shach on Ho. Mis. LXXXVI, 3; Sma, ibid., 2.

27 Meiri on Kiddushin 15b.

28 Kiddushin 15a and 16b.

29 Sifre on Deut. para. 119; Kiddushin 17a–b. For further rules, see 9 Talmudic Encyclopedia s.v. “Ha'Anakah”; Elon in 15 Hebrew Encyclopedia 69–70, s.v. “Ha'Anakah BaMishpat Halvri”.

30 The law of the bound servant applies only when the Jubilee Year is observed and the latter ceased when the tribes of Reuben, Gad and the half tribe Menasseh went into exile: Arachin 32b. See further, E.E. Urbach, 25 Zion 141–89.

31 Ed. Shevel, commandment 450.

32 See (1968) 3 Is.L.R. 421 ff.

33 Vager, M. and Dikstein, P., Pitzuye Piturim etc. (1940)Google Scholar; Daikan, P., Toledot Mishpat HaShalom Ha'Iuri 90.Google Scholar

34 Silberg, J. in Wolfson v. Spinneys Co. Ltd. (1951) 5 P.D. 265, 275Google Scholar; Judge Lamm, , Goldstein v. Neuman (1950) 5 P.M. 329.Google Scholar

35 III Judgments of the Rabbinical Courts of Israel 286–87.

36 Cohen v. Capun (1940) 7 P.L.R. 80, 88.

37 (1962) 33 Divrei HaKnesset 1050.

38 Ibid. 1070, 1081–82, 1160, 1161–63; see also (1957) 22 ibid. 1623. Here also Hebrew terminology could have been used in naming the Law. The omission is once again to be regretted. See below p. 92.

39 (1962) 33 Divrei HaKnesset 1300, 1303. It was pointed out that in I Judgments of the Rabbinical Courts 330 these courts had awarded a sum far beyond that awarded in the secular courts for severance pay. One may add that the rabbinical courts have felt the need further to develop this area of the law in line with custom as a source of Jewish Law; see (1967) 2 Is. L.R. 547 ff. and below on the decisions of these courts.On the Jewish sources in labour law legislation, see also (1950) 7 Divrei HaKnesset 354, 361; (1951) 8 ibid. 1201; (1956) 20 ibid. 1079; (1957) 21 ibid. 1082.

40 Bill No. 540 of 1963, 125.

41 (1963) 36 Divrei HaKnesset 1292.

42 Y. Gross, ibid. 1296. Shu. Ar. Ho. Mis. CCLXIV, 4–8 and Rema thereon. The source of this rule is the Mishnah in Baba Kama 115a, and the discussion thereon. The relationship of this source to the matter in hand is open to discussion.

43 (1963) Divrei HaKnesset 1296. It is somewhat surprising that Mr. Unna in presenting the Bill for second reading, (1964) 39 Divrei HaKnesset 1505, 1506, did not connect it at all with the above Jewish sources but on the contrary emphasized its originality.

44 Bill No. 612 of 1964, 171, 207. This Bill is still under Knesset committee debate.

45 Sec. 22. According to Jewish Law possession alone does not confer ownership unless accompanied by the plea that it was lawful by purchase, inheritance, etc.: see Baba Batra, III. Although under sec. 21 acquisition by prescription applies only to “un settled” land, it does not alter the fact that this does not adopt the Jewish position.

46 Sec. 38 ff. As to right of the “pre-emptor” in Jewish Law, see Baba Metzia 108a, Maimonides Hilchot Shechenim XII-XIV, Shu.Ar. Ho. Mis. CLXXV.

47 Secs. 37 and 97. See pp. 84–5 above.

48 See the criticisms voiced by various members, (1964) 40 Divrei HaKnesset 2131—2278, 2282, 2342. Landau J. of the Supreme Court, who was the chairman of the Public Committee which prepared the Bill, used more precise language than the Explanatory Notes above-mentioned. “As regards Jewish Rabbinical Law, it must regretfully be admitted that more could perhaps have been done to incorporate this part of the Jewish national heritage into the provisions of the new Code. The failure to do so may be explained partly by the monolithic nature of Rabbinical Law which makes piecemeal adoption seem a half measure satisfactory to no one, and partly by the lack of a modern restatement of the body of that law which could serve as a sure basis of its adaptation topresent-day conditions.” (Moshe Landau, “Legislative Trends in the Land Code,1964”, Scripta Hierosolymitana, 1966, p. 136.) These two reasons are pertinent but, with great respect, they do not justify the absence of reference to Jewish Law, as I have repeated a number of times in this study.

49 See Bills of 1965 and the Explanatory Notes, 212 and 280. Cf. Yadin, U., “The Law of Succession, etc.” in Studies in Israel Legislative Problems, XVI Scripta Hierosolymitana 128–29.Google Scholar Dr. Joseph, in introducing thefirst Bill, said with regard to the section therein dealing with penalty clauses, permitted under existing Ottoman Law, that the courts had modified the Ottoman rule by referenceto English equity.“ In this connection”, he added, “I should recall thatthe rule against penalties is an ancient principle of Jewish Law, dealt with in the framework of Asmachta in the Talmud.” Later he cited Prof. J.J. Rabinowitz to theeffect that whether directly influenced by the Hebrew doctrine of Asmachta or not, the rule against penalties in English law seems to have been first invoked extensively against Jewish creditors in the Middle Ages (Jewish Law, 1956, pp. 202–3) (1956) 43 Divrei HaKnesset 2500. As to the second, the Sales Law, Mr. M. Unna in presenting the Bill for second reading pointed out that the change of the definition of sale from “a transaction for transferring ownership in property for a consideration” to “causing another to acquire property for a price” brought the definition into line with the view of Jewish Law which regards the transfer of the ownership and not the contractual obligation as the essence. He pointed out further that section 34 dealing with “the benefit of trade” (takkanat hashuk, cf. the English “market overt” and sec. 38 of the Civil Wrongs Ordinance, 1944) is a Jewish institution, the very name and content of which had been adopted in the Law.

50 Bill No. 676 of 1965, 52 and 54.

51 (1965) 44 Divrei HaKnesset 215–18, 324–27.

52 (1967) 49 Divrei HaKnesset 2149.

53 Ibid. 2148 (Mrs. S. Aloni).

54 Gulak, A., Yesodei HaMishpat Ha'Ivri Vol. 2, 65 ff.Google Scholar; Herzog, I., The Main Institutions of Jewish Law Vol. 2, Ch. 13Google Scholar; Rakover, N., “The Jewish Law Sources of the Bailees Law, 1967” (1968) 24 HaPraklit 208.Google Scholar

55 The four kinds of bailees mentioned in the Halachah are in fact three so far as concerns the applicable law: see Maimonides, , Hilchot Sechimi I, 1.Google Scholar

56 Exodus XXII, 6–14; M. Baba Metzia VII, 8; Maimonides, Hilchot Sechirut I, 1.Google Scholar The definition of the non-gratutious bailee is to be found in Baba Metzia 43a. Wherever the bailee enjoys some benefit from the bailed article even indirectly (e.g. the craftsman who is paid for repairs done to the article) he is a non-gratuitous bailee, see Minhat Hinuch to Sefer HaHinuch, Commandment 59. A like definition of borrower is found in Baba Metzia 94b. See I Judgments of the Rabbinical Courts of Israel 189. The definition of the gratuitous bailee is self-evident.

57 Shu. Ar. Ho. Mis. CCXCI, 1; cf. Maimonides, Hilchot Sechirut I, 2.

58 M. Baba Metzia III, 11.

59 Maimonides, loc. cit.; Shu. Ar. Ho. Mis. CCCIII, 2–3. The liability of the nongratuitous bailee is reduced where the purpose of the bailment is subsidiary to the main object of having it in his possession. Differences of opinion exist regarding the bailee who receives no reward but derives some benefit, whether his liability is less than that of the bailee for reward.

60 Maimonides, loc. cit.; Shu. Ar. Ho. Mis. CCCXL, 1. There is a limit in Jewish Law on the responsibility of the borrower in the event of damage caused because of the use for which the property was borrowed (ibid.) This limitation hasnot been adopted by the Law.

61 Jenks, E., A Digest of English Law (3rd ed.) I, 277, sec. 682.Google Scholar

62 Arts. 643–44.

63 Bürgerliches Gesetzbuch (71st ed., according to the Law on May 15, 1958) paras.771, 773(1).

64 Oser/Schoenenberger, Kommentar Zum Schweizerischen Zivilgesetzbuch (1945) III, 1888–1912Google Scholar, paras. 495–96.

65 Kruse, Fr.Vinding, A Nordic Draft Code (1963) 347, para. 1301.Google Scholar

66 As when the principal debtor becomes bankrupt or is out of the country and the filing of a claim against him involves special difficulties.

67 Elon, M., “The Surety, the Principal Debtor and Freedom of Contract in Jewish Law”, Proceedings of the Fourth World Congress of Jewish Studies (1967) I, 197–208 (in Hebrew).Google Scholar

68 Another way of direct recourse to the surety is to make the latter an 'areu kablan. This is similar to the solidarischer Bürger of para. 496 of the Swiss Code. See Maimonides, , Hilchot Malveh VeLoveh XXV, 1–5.Google Scholar (According to the Rome text of 1480, if the stipulation is “I may obtain payment from whomever I wish” without adding the word “first”, the creditor may turn to the surety directly. This appears to be the final and correct text of rule 4: M. Elon, ibid.), Tur and Shu. Ar. Ho. Mis. CXXIX, 8–15. The provisions of Swiss and Nordic law that, when special difficulties exist which prevent a reasonable claim to be made on the principal debtor, it is possible to approach the surety directly, are alsoto be found in Jewish Law; see Maimonides, loc. cit., rule 3; Tur and Shu. Ar., loc. cit., 10–12.

69 Bill No. 632 of 1964, 73.

70 The section gives three cases where it is unnecessary to make prior demand of the debtor—where the surety waives such demand, or where difficulties exist in making it.

71 For instance sec. 1 (a) defines suretyship as the liability to fulfil a person's obligations towards a third person. On the necessity of these elements—creditor, principal debtor and surety—to constitute suretyship, see Sheiltot 33. The Book of Suretyship by Shmuel ben Hofni, , printed in Kovetz Madai'-i LeZichro Shel Harav Kook (1945) 147–48.Google Scholar Sec. 1(b) states the suretyship can go to all or part of the obligation, it may arise on or after the obligation is first entered into, or be conditional or not or limited or unlimited. On these various aspects see Resp. Rashba I, 1148; Rema on Shu. Ar. Ho. Mis. CXXIX, 1–3;ibid. CXXXI 9–13; Bah on Tur. Ho. Mis. CXXIX, 3; Smah, ibid. 5; Shach, ibid. 6; Aruch HaShulhan, ibid. 7; Maimonides, , Hilchot Malveh VeLoveh XXV, 1–2Google Scholar, 8, 13, 14. Sec. 2 provides that suretyship can only attach to a valid obligation, which is well founded on Jewish legal principle, see Bechorot 48: Ho. Mis. XLIX, 10; Resp. Maharshach 44; Resp. Rashdam 218. The comments of Rema on Shu. Ar. Ho. Mis. CXXIX, 8, are difficult to understand; see explanation of Bach on Tur. Ho. Mis. CXXIX, 3. For this reason I. Eng-lard in (1968) 3 Is.L.R. 260, note 39, who relies on Rema, is not quite accurate. Sec. 9, which provides for the surety's right of recourse to the principal debtor if the latter agreed to the suretyship, such right covering reasonable expenses and interest, agrees also with Jewish Law: see Maimonides, ibid. XXVI, 6; Shu. Ar. Ho. Mis. CXXX, 1–2; CXXXI, 7–8; Resp. Radbaz VI 2084. Other sections similarly agree with Jewish Law.

72 It is appropriate to observe that in the debate on the first reading of the Bill, all those members of the Knesset—including those from the non-religious parties—who participated objected to this provision and demanded, each for his own reasons and in his own manner, the adoption of the principle of Jewish Law; see (1964) 41 Divrei HaKnesset, 474, 667, 668, 669, 880–81.

73 Bill No. 669 of 1965, 368, 369.

74 (1965) 44 Divrei HaKnesset 24.

75 In this regard special attention should be drawn to the observations of Messrs. E. Meridor (ibid. 24–25), U. Avneri (ibid. 26, 35–36),G. Hausner (ibid. 29), R. Arzi (ibid. 29), Y. Raphael (ibid. 32–33) and S. J. Gross (ibid. 29–30). For the different view of Y. Yeshaya see the concluding part of this study.

76 Per Mr.Unna, M., Divrei HaKnesset of June 19, 1968Google Scholar (not yet published). Cf. a like amendment of sec. 1 of the Sales Law, 1968, in the spirit of Jewish Law; see above, n. 49.

77 Ibid.

78 Ibid. The first ground was that the principle should be dealt with in the framework of the general part of the law of contract and not of the GiftLaw. The second was that the application of the principle would create in the interim period—until the donee refuses—a state of uncertainty as to the ownership of the thing. Prof. Klinghoffer argued rightly that the principle was properly to be placed in the Gift Law, and as for uncertainty, the matter was regulated in the Bailees Law, 1967, and also existed under sec. 3 of the Gift Law, above mentioned.

79 I cannot understand this second reason. Under the principle, mentioned in the text, ownership passes to the donee immediately upon the article coming into possession, whereas in agency the principal is not entitled until the thing becomes due to him.

80 This in fact is the only reason; see previous note.

81 On the nature and significance of this rule and the attitude of other legal systems to it, see Shaki, A., “The Problem of Third Party Rights in English and Israel Law and its Solution in the Light of Jewish Law” (1958) Sugiot Nivharot BaMishpat 470–508 (in Hebrew).Google Scholar

82 See Maimonides, , Hilchot Zechiah U-Matanah IV.Google Scholar

83 See Klinghoffer, ubi supra. The adoption of the rule in its original form would require changing the bilateral nature of gift by removing the need for the agreement of the donee and leaving it to him to notify his rejection of the gift within a reasonable period of time.

84 As will be seen later, these aspects of public law furnish important sources of case law for problems before the Supreme Court as well as the rabbinical courts. It is more convenient and easier to rely on the vastly scattered raw material when actually deciding cases than at the various stages of the legislative process. See also (1967) 2 Is. L.R. 522 ff.; (1968) 3 Is. L.R. 91 ff.

85 (1951) 8 Divrei HaKnesset 802.

86 See e.g., Maimonides, , Hilchot Sanhedrin XXIII, 3.Google Scholar

87 The question of bribery arises in the Jewish sources primarily in respect of the judicial function; see Deut. XVI, 18–19; XXVII, 25; Micah III, 11; and elsewhere, The same is true of Maimonides, ibid., and Ho. Mis. IX.

88 Maimonides, ibid. 2; Shu. Ar. Ho. Mis. IX 1.

89 Explanatory Notes, 64. Under Mandatory Law, the person giving the bribe did not commit a criminal offence.

90 Maimonides, ibid. Likewise, Sifre on Deuteronomy, 144; Ketubot 105a; Shu. Ar., ibid.

91 At 65–66. For the Jewish Law, see Maimonides, ibid, and Shu. Ar., ibid.

92 (1951) 8 Divrei HaKnesset 803, 815, 817, 818 Cf. the reaction of the Knesset to the Gift Law, p. 96 above. Here the deviation from Jewish Law was accepted by all since the latter was contrary to the social-moral attitude common today, unlike the case with the unilateral nature of gift, which is similar both in Jewish and the Common Law.

93 Ibid. 819 (Dr. Z. Warhaftig) and note the reply of Mr. P.Rosen that, notwithstanding justified hesitations, if conviction on the evidence of an accomplice also was not possible, conviction was altogether cut out since the offence by its very nature was committed between the parties only.

94 “Rewards” was omitted from the title but the offending act became part of bribery generally: sec. 4(c). The reason for the omission was that the penalty in the Law as ultimately passed for securing preferential treatment was the same as that for bribery; in the Bill it had been less. The Law also differs from the Bill in that the punishment of the person giving the bribe is half that of the recipient.

95 The Bill was also intended to combine the existing provisions of civil and criminal law, i.e. sees. 16–22 of the Civil Wrongs Ordinance, 1944, withsees. 201–3 and 205–9 of the Criminal Law Ordinance, 1936.

96 Dr.Joseph, Dov, the Minister of Justice, (1963) 37 Divrei HaKnesset 2401, 2402, 2404.Google Scholar

97 Ibid. 2401, 2404, 2454, 2460, 2572, 2581. The Bill provided for group defamation. The Minister of Justice dealt in particular with the fact that Jews had always been the first victims of such defamations and cited inter alia the Hafetz H aim: “It is a criminal offence…to utter (defamation) of an individual and much more so of an entire Jewish town” (Rule 10, para. 12).

98 See (1967) 48 Divrei HaKnsset 1730 on the new title being more expressive of the contents of the Law.

99 See (1966) 46 Divrei HaKnesset 2451 (Y. S. Shapiro, the Minister of Justice). For details of the Jewish Law, see Rakower, N., “On Defamation and the Punishment Thereof in Jewish Law” (1962) 21 Sinai, 197–209, 326–45 (in Hebrew).Google Scholar

100 See e.g. the debate which went into great detail on the Bill ofthe Penal Law Amendment (Concealment of Offences) Law, 1958: (1959) 25 Divrei HaKnesset 861–62, (1959) 26, ibid. 1963–64. Obviously a great deal of Jewish material is available in those parts of the criminal law which involve personal status. A prominent instance is the law amending the rules of bigamy; See Elon, M., Hakikah Datit 34–36, 104–16.Google Scholar See also my observations on family law, below, 115 ff.

101 e.g., the Bill of the Penal Law Amendment (Prohibited Games, Lotteries and Betting) Law, 1963. The Jewish sources range from M. Sanhedrin XXIV, 2, to the Poskim and Responsa as well as takkanot: M. Elon, HaMaasar, etc. 195; Bazak, Y., “Mishake Kubiah BeHalacha Ha'Ivrit UBaMishpat HaMekomi” (1959) HaPraklit 3–15.Google Scholar Yet neither the Explanatory Notes nor the introductory observations of the Minister of Justice in the Knesset mention these sources; they were, however,partially referred to during the debate: (1963) 37 Divrei HaKnesset 2242, 2260, 2262, 2266. The Bill became Law in 1964.

102 Such matters are sometimes raised during the general debate on the annual reports of the various ministries, e.g. the halachic rules on corporal punishment were noted in discussing the work of the Ministry of Police in 1964: (1964) 39 Divrei HaKnesset 1707.

103 M. Avot IV, 8. In certain instances an “expert” may try a case; see Sanhedrin and 5a; Maimonides, Hilchot Sanhedrin II, 10, 11, Ho. Mis. III.

104 M. Sandehrin I, 6.

105 See note 103 above.

106 Sec. 3, Courts Law, 1957. It is similar with Further Hearings: sec. 8.

107 Sec. 15. Cf. sec. 25 under which a Magistrate's Court sits with one judge but in special cases can have three; here also the number may not be even.

108 See the remarks of Mr. P. Rosen at the first reading of the Bill of the Courts Law in 1955: (1955) 17 Divrei HaKnesset 712.

109 See Bechorot 28b; Sanhedrin 5a; Maimonides, Hilchot Sanhedrin VI, 1–2Google Scholar; Shu. Ar. Ho. Mis. XXVIII.

110 See (1960) 28 Divrei HaKnesset 644. The first reason is given by Aliasi and the second by Nachmanides and Ran: see their respective commentaries on Sanhedrin 5a. The extent to which Jewish Law was relied upon can be gauged from the treatment by the Minister of Justice of the fear that a judge might act maliciously and not in honest error in which event he is liable under Jewish Law, but which the Minister saw no need to provide for expressly since there was no need to fear such an event: ibid. 645 and cf. 711.

111 (1957) 23 Divrei HaKnesset 391–2 (Mr. K. Luz).

112 Apart from Genesis XIII, 10.

113 (1958) 23 Divrei HaKnesset 604 (Dr. Warhaftig).

114 Bezah V, 5; Nedarim V, 4–5; Tosefta Baba Kama VI, 15; Tosefta Baba Metsia XI, 33–37; and elsewhere.

115 Baba Kama 81 a–b.

116 Bezah 39a; Nedarim 47b; Avodah Zarah 47a and elsewhere; Maimonides, , Hilchot Nizke Mammon III, 5Google Scholar; Hilchot Gezelah VeAvedah VI, 13; Tur Ho. Mis. CCLXXIV, 5. It should be noted that Baal HaTurim (13th–14th century, Spain and Germany) still cites these Laws whereas Karo (16th century, Balkans and Palestine) does not; about this see an interesting observation by Rema, Shu. Ar. Ho. Mis. CCLXXIV.

117 Elon, op. cit., 14 ff. as well as on educational legislation, the Chief Rabbinate, etc.

118 Ozar HaGeonim on Kiddushin, Responsa, 60–3.

119 See, e.g., (1954) 15 Divrei HaKnesset 823; (1950) 6 Divrei HaKnesset 2035.

120 The Israel Land Law was passed immediately afterwards, enablingtransfer of ownership in specific cases, such as urban land (sec. 2). The provision that the Basic Law shall not affect acts designed solely to enable observance of the Sabbatical Year is most interesting (sec. 3). See Elon, op. cit., 55.

121 (1960) 29 Divrei HaKnesset 1916–17; cf. (1949) 3 Divrei HaKnesset 303 on the Bill of 1949 to enable transfer of property to the Development Authority.

122 Sanhedrin 29a; Maimonides, , Hilchot Edut XVII, 2Google Scholar; Shu. Ar. Ho. Mis. XXVIII, 7.

123 Tosafot on Kiddushin 43b, s.v. Vehashta.

124 Resp. Ribash 170.

125 Tashbatz III, 15.

126 Shu. Ar. Ho. Mis. XXVIII, 2.

127 (1958) 14 HaPraklit 179–89, 243–79.

128 The first, the widow's claim of her Ketubah againstthe deceased's estate, for which the period of limitations in certain cases is 25 years (Ketubot 104a); the second, the widow's claim for maintenance, for whichthe period is 2 years in the case of a poor woman and 3 in the case of a wealthy woman (ibid. 96a).

129 Y. Ketubot XII, 5; in B. Ketubot 104a–b, the version is “a creditor may recover without a memorandum”. Roman Law also did not until the year 424 recognize limitations in civil law actions: Sohm, , Institutionem (1949) 709–15.Google Scholar

130 Resp. Rosh 68, 20; 85, 10.

131 Resp. Ribash, 404.

132 Resp. MaHarik (Lemberg ed.), 190 (Warsaw ed.) 186; Tur Ho. Mis. LXI (Darchei Mosheh note 5) ; Shu Ar. Ho. Mis. LXI, 9 (Rema).

133 shu. Ar. Ho. Mis. LXI, 9; XCI, 1–2.

134 Resp. Rashdam, Ho. Mis. 367.

135 Resp. Divrei Rivot, 109.

136 Pinkas Va'ad HaKehillot HaRashiot BeMedinat Lita (ed. S. Dubnow, 1925) No. 205 of 1628; Misgeret HaShulchan to Shu. Ar. Ho. Mis. LXI, note 16; Ateret Zvi, ibid.; Netivot HaMishpat, ibid., note 18.

137 Kerem Hamar (Livorno, 1869) Ho. Mis. 33. See Shevut Yaakov III, 182; Urim VeTumim, Shu. Ar. Ho. Mis., LXI, Urim note 18.

138 Kesef HaKodoshim, Shu. Ar. Ho. Mis. 61, 9.

139 Such an explicit provision (sec. 5 of the Bill) is not to be found in the laws of other countries, which also possess this rule; cf. Planck, , Kommentar zum Buergerlichen Gesetzbuch (1913) I, 503–4Google Scholar; Guhl, , Das Schweizerische Obligationenrecht (1948) I, 232Google Scholar; Preston, and Newsom, , Limitation of Actions (1953) 13.Google Scholar The procedural nature of the plea is also to be gathered from the provision that the court will not take the point if the defendant overlooks it, or that the defendant must raise the plea at the earliest opportunity, or that where the plaintiff holds a pledge or guarantee to secure the debt he may nevertheless exercise his rights therein.

140 Sec. 3(2). This is in addition to another general rule (sec. 10) that an admission in writing starts time running afresh.

141 The Bill also laid down certain assumptions of Jewish Law, e.g. with regard to minority. The limitation period for movables was fixed at seven years because, it was said, that was reasonable in modern circumstances and followed the idea of the Jewish Sabbatical Year. The latter is merely expressive of an external similarity and no substantial connection exists between the two institutions and in fact the Sabbatical Year extinguishes the debt entirely whatever its due date. Elon, “On Limitations, etc.”, op. cit., note 22.

142 Jewish Law, however, does not even at its third stage know of the possibility of the debtor being permitted on grounds of limitations not to plead to the substance of the claim. At its last stage it held that where the debtor denied the right claimed and pleaded payment, he was believed. In view of the previous stages of development, the admission of a plea of limitations even without denial of the claim is a necessary and reasonable further stage of development in contemporary circumstances. The basic principle of Jewish Law is preserved by the provisions that if the defendant admits the claim, the plea of limitations is not possible. Hence it follows that where he keeps silent, neither admitting nor denying, it is assumed that he does not believe the claim to exist or at least knows nothing of its existence. See further, Elon, ibid., 268–69.

143 (1957) 22 Divrei HaKnesset 2228, 2237. The Minister of Justice was very brief and incomplete in his references to Jewish Law, ibid. 2222, 2268. Some other members also described, each in his own way, the attitude of Jewish Law,as expressed in one or other perid. Cf. (1956) 20 Divrei HaKnesset 1862 and Elon, “On Limitations, etc.”, op. cit., 180–82.

144 Sec. 2, Prescription Law, 1958. All the sections from which it can be deduced that limitations are procedural were retained.

145 Sec. 9.

146 See (1958) 24 Divrei HaKnesset 1617.

147 Ibid. 1678–79, 1738.

148 (1968) 3 Is.L.R. 107 ff.

149 (1957) 23 Divrei HaKnesset 93, 100, 130, 257, 259.

150 Sec. 82 (3) of the Bill and the Explanatory Notes. See also (1957) 23 Divrei HaKnesset 259.

151 Except regarding a tax debt, see (1968) 3 Is.L.R. 108 ff.

152 For a somewhat different but erroneous view distinguishing between ordinary debt and maintenance of one's wife see (1957) 23 Divrei HaKnesset 100–1 and compare Elon, , Herut Haprat, etc. 267.Google Scholar

153 This was before the Continuity of Debate Law, 1964, and the Third Knesset had dissolved before the second reading was completed.

154 (1960) 29 Divrei HaKnesset 1781, 1783.

155 Ibid. 1784, 1786, 1789, 1827, 1833, 1836, 1862, 1863.

156 lbid. 1833 (M. Porush).

157 Ibid., 2111.

158 Elon, op. cit., 254–55.

159 Secs. 80–83. Sec. 84 provided for imprisonment for default of maintenance of one's wife, children and parents, even without enquiry as to means, since that would already have been taken into account in the proceedings imposing the liability.

160 See (1965) 43 Divrei HaKnesset 2528, 2567, 2568.

161 Secs. 70–74, which also contain additional particulars showing that such imprisonment is not punitive, its sole purpose being to compel a person with means to pay what is due.

162 See (1967) 49 Divrei HaKnesset 2923, 2924, where the chairman, in reply to objections to the inclusion of the imprisonment provisions, pointed out that “it would be wrong to view the matter from the draconian approach of Roman Law. Were closer analogy drawn with Jewish Law, it would be clear that the latter was originally opposed to imprisonment in any form, but at a given period circumstances led to its use to ensure the payment of debts where default was likely to have serious consequences on the economic order. It is not enough to regard imprisonment as an invasion of the individual right for mere money considerations. All aspects of the matter have to be borne in mind…public opinion, the circumstances and the special conditions in which the Law is to operate. It is not enough for us to bring proof from other laws to demonstrate that this is also the way for us…All this indicates that imprisonment cannot beabandoned completely as a means of pressure. It is not punitive. In this regard, Jewish Law has been followed, which although in principle adopting a negative attitude towards imprisonment is ready to utilize it when time and circumstances require for good public order. It appears to me that this is a good example of how we can learn from the Jewish legal approach… and how properly to adapt ourselves to these problems that arise in our everyday life.” Cf. Elon, ibid., 265–69.

163 (1968) 3 Is. L.R. 454 ff.

164 Except in certain outstanding cases, such as the problem of the reputed wife and the equality of rights and duties as between spouses. See below pp. 116, 134 ff.

165 A private member's proposal (Miss A. Maimon) in this regard was made in the very early days of the State: (1950) 4 Divrei HaKnesset 619. TheGovernment Bill of 1950 took the form of an amendment of the Criminal Code Ordinance.

166 (1950) 4 Divrei HaKnesset 655 and 661.

167 (1950) 5 Divrei HaKnesset 1705, 1726, 1740 1832.

168 Sec. 5, Marriage Age Law, 1950.

169 Marriage Age (Amendment) Law, 1960. The explanation was that experience had shown the need to permit at times marriage over the age of 16 years and thatthe existing Law encouraged sexual relations and pregnancy so as to take advantage of its provisions, see (1959) 28 Divrei HaKnesset 9. On the relationship between the amendment and the takkanah of the Supreme Rebbinical Council, see ibid. 10, 23, 24, 26, 29.

170 This is the halachic rule in a large number of forbidden marriages which ex post facto are valid. The classic example is the marriage of a cohen and a divorcee, where the marriage is valid and a divorce is required to dissolve it. Only in very serious cases, such as marriages between relatives of the first degree or marriage with a married woman, are the marriages null and void.

171 Sec. 3, Marriage Age Law, 1950; (1950) 4 Divrei HaKnesset 638.

172 (1950) 4 Divrei HaKnesset 659 and 667. A question of principle was also raised regarding the authority of the Knesset, in point of Halachah, to make takkanot in the matter of marriage age and registration, similar to the takkanot hakahal familiar in Jewish history, ibid. 665–66. See below on the debate on theWomen's Equal Rights Law and the concluding part of this study.

173 (1968) 3 Is. L.R. 454 ff.

174 See e.g. (1951) 9 Divrei HaKnesset 2110, 2118, 2119, 2124.

175 As with the Rules of Procedure of the Rabbinical Courts, 1943, regarding equality of succession rights, see (1968) 3 Is. L.R. 429 ff. and Elon, , Hakikah Datit 37–43.Google Scholar

176 (1951) 9 Divrei HaKnesset 2105–6 (Prof. B. Dinur (Dinaburg)).

177 In practice the rabbinical courts apply these provisions but the matter has not been explicity regulated by takkanot.

178 Ibid. 2007, 2105–6, 2116–17 and 2125–26; Elon, op. cit., 182–84.

179 See e.g. (1951) 9 Divrei HaKnesset 2090 and 2102.

180 Ibid. 2193, 2196 and cf. 2187.

181 Ibid. 2132.

182 See ibid. 2187 (Y. Klibanov). The debate on sec. 1 of the Law—”any provision of law which discriminates, with regard to any legal proceeding, against women as women, shall be of no effect”—is also interesting. It was suggested to replace “shall be of no effect” by “is void”: ibid. 2193, but the Knesset rejected the suggestion since “the provisions of religious law are not to be annulled by a vote of the Knesset.…What is importantfor the Knesset is not to set aside the Halachah but that the State of Israel should not follow it.…We are not here to avoid the provisions of the Shulhan Aruch, that is tradition”; ibid. 2168 (D. Bar-Rav-Hai). A similar difference of viewpoint has since been voiced in the Supreme Court, C. A. 313/56, 14 P.D. 285; see Elon, op. cit., 39–40.

183 The Bill was published in 1956 and followed secs. 122–36 of the Ministry of Justice Bill on The Individual and The Family Law of 1955. In the latter, many of the Jewish legal sources upon which it is based are indicated.

184 Secs. 2 and 3. See (1968) 3 Is.L.R. 455 and note 152.

185 Ketubot 49b; Shu. At. Yo. De. COLI.

186 For details see shu. Ar. Yo. De. CCXLVII-CCLI; (1968) 3 Is.L.R. 430 ff., and I. Kister in (1968) 24 HaPraklit, 168–77.

187 (1956) 20 Divrei HaKnesset, 1933–34, 1942, 1945, 1968–69, 1974; 26 ibid. 1147.

188 Although under Jewish Law the duty of maintenance of children falls upon the father only, the matter has now been regulated by sec. 3 (b) of the Family Law Amendment (Maintenance) Law, 1959, under which its provisions apply also where a person is not so liable under his or her personal law.

189 (1959) 26 Divrei HaKnesset 1126–27; cf. 20 ibid. 1944 and 1947, and Elon, op cit., 60 ff.

190 See (1968) 3 Is. L.R. 449 ff., 456 ff.

191 Dr. Z. Warhaftig and Dr. B. Azania: (1959) 26 Divrei HaKnesset 1147; cf. 20 ibid. 1934.

192 The Knesset had earlier passed the Adoption of Children Law, 1960, which raises the crucial problem of the severence of all connection between the adopted child and his natural parents, on which opinion is seriously divided between Jewish Law and many other systems based on Roman Law. The Adoption Law compromised the matter; seein more detail (1968) 3 Is.L.R. 428 ff. and note 55.

193 Gitin V, 7.

194 Gitin 59a; Maimonides, , Hilchot Mechirah XXIX, 1Google Scholar; Shu. Ar. Ho. Mis. CCXXXV, 1.

195 Baba Batra 155a; Maimonides, ibid., 13; Shu. Ar. ibid., 9.

196 Pinkas Va'ad Arba'a Arazot, ed. I. Halperin (1945) 48, No. 125.

197 Gulak, A., Ozar Hashtarot 145, No. 157Google Scholar; id. The Elements of Jewish Law (in Hebrew) I, 38 et seq.

198 (1961) 32 Divrei HaKnesset 46–47; (1962) 34, ibid. 3081.

199 See sec. 13 of the Legal Capacity and Guardianship Law. For criminal law, see sec. 9 of the Criminal Code Ordinance, 1936, and for torts sec. 8, the Civil Wrongs Ordinance, 1944, or sec. 9 in the new version of 1968.

200 Primarily in connection with the age of marriage, see p. 115 above.

201 (1961) 32 Divrei HaKnesset 48.

202 Kiddushin 29a and Rashi, ad locum: “He who does not teach his son a trade it is as if he had taught him to rob”) since having no occupation, he must turn to malpractices to obtain a living.

203 This difference also was adopted in principle in the instant Law; see sec. 25.

204 Resp. Rashdam, Even HaEzer, 123.

205 Resp. Radbaz. I, 123.

206 (1961) 32 Divrei HaKnesset 48.

207 This provision already appears in sec. 3(b) of the Women's Equal Rights Law, 1951.

208 Gitin 37a; Resp, Rosh 85, 5–7; Resp. Rashdam 434; Shu. Ar. Ho. Mis. LXXXII, 7, and Rema and Pit-he Teshuvah, ad locum; Gulak, op. cit., III, 146–54.

209 Shu. Ar. Ho. Mis. CCXC, 24; (1961) 32 Divrei HaKnesset, 49. The Minister also drew attention to the recent developments of this rule in English law.

210 Ibid.

211 Pink Medinat Lita, ed. S. Dubnov (1925) 9, No. 37.

212 (1961) 32 Divrei HaKnesset 55, 57 and 407.

213 Ibid. 51, 54 and 56 (Dr. Z. Warhaftig).

214 Ibid. 156, 158–59, 292–93 and 413.

215 (1962) 34 Divrei HaKnesset 3078 and 3086.

216 It may be assumed that this was a decisive factor for the argument regarding the designation of the principle as a legal norm when adopted by the Knesset, the proponents of which fought along the whole front for the reception of Jewish Law and on another occasion relied on the Fifth Commandment to try to introduce a provision obliging an adopted child to maintain his natural parents: (1959) 26 Divrei HaKnesset 1123–24; cf. (1961) 32 ibid. 160. Prof. Tedeschi's severe criticism (in Studies in Memory of Abraham Rosenthal (1964) 290) of “the extreme stand of the orthodox”, with respect, ignores the main problem of leaving a Law based essentially on Jewish Law linked with English law and of cutting it off from its source: see further Elon, op. cit., 62–68.

217 (1961) 23 Divrei HaKnesset 173 and 190.

218 Ibid. 173 (Mr. P. Rosen).

219 An attempt was unsuccessfully made to preserve for the religious courts jurisdiction in the matters dealt with by the Law but subject to the provisions of the Law: (1962) 24 Diurei HaKnesset 3095 and 3140, similar to the position under sec. 7 of the Women's Equal Rights Law, 1951.

220 See above pp. 81–2.

221 Hilchot Nahalot VI, 1; to the same effect Shu. Ar. Ho. Mis. CCLXXXI, 1.

222 According to the orignial Halachah, a daughter only suceeds in the absence of sons; otherwise she is only entitled to maintenance until majority or marriage (M. Ketubot IV, 11) and even if the estate is insufficient she still receives maintenance until it is exhausted (ibid XIII, 3; Maimonides, op cit., I, 2 and V, 2; Shu. Ar. Ho.Mis. CCLXXVI, 2). Subsequently, various takkanot were made to ensure the daughter a share in her father's estate, see Ketubot 25a (Ketubat bnin dichrin), 68a—69a (issur nachasim). So also in post-talmudic times (e.g. shtar hatsi zac har); see, e.g. Assaf, S., “LiShelat HaYerushah shel HaBat”, Jubilee Volume in Honour of Jacob Freimann, 8 ffGoogle Scholar; for further bibliography see (1968) 3 Is. L.R. 429, note 56.

223 Under Halachah the mother does not succeed her children (Maimonides, op. cit., I, 6; Shu. Ar. Ho. Mis. CCLXXVI, 4). In 13th-century Spain there were community takkanot giving succession rights to the mother in certain circumstances; see Gulak, op. cit., III, 94.

224 Maimonides, op. cit., I, 3; Shu. Ar. Ho. Mis. CCLXXVI, 1.

225 Shu Ar Ho Mis. CCLIII, 2 and CCLXXXI, 1, 7 This distinction is also manifested in the place of the various rules in the Codes Succession is dealt with in Hilchot Nahalot (Laws of Inheritance) by Maimondes and testamentary dispositions in Hilchot Zechiah U-Matana (Laws of Titles and Gift) VIII-XII Tur and Shu Ar. Ho Mis have a similar division (CCLXXVI-CCLXXXIX, CCXLI-CCLVIII) See also Resp. Rosh 55, 9.

226 M Baba Batra VIII, 5 See Shu Ar Ho Mis CCLXXXII, 1, Rema, ad locum, “where a person directs by will that his property be dealt with in the best possible manner, the property shall be given to the heirs”, and Gulak, op cit, III, 71–75, 79–81.

227 Maimonides, Hilchot Nahalot, VII, Shu Ar Ho Mis CCLXXXIV, Gulak, op cit; III, 77–79.

228 Maimonides, op cit, V, 1, 6–8, Shu. Ar Ho Mis CCXLVI 5 and CCLI, 2, Even HaEzer XCIII, 2

229 Maimonides, op cit, I, 7, Shu Ar Ho Mis CCLXXVI, 6, (1968) 3 Is L R 248, note 55

230 Maimonides, op cit, VI, 12, Shu Ar Ho Mis CCLXXXIII, 2 The “West” comprised the countries of Europe which lay to the westof Egypt where Maimonides resided

231 Rema on Shu Ar, loc. cit

232 Contrary to English Law where the estate vests in the deceased's personal represent ative. See M. Elon in (1955) 11 HaPraklit 205 et. seq. Sec. I and sec. 6 (which enables the heir to renounce by notice in writing to the court after the death and before distribution) seem to be in contradiction. How can renunciation alone be sufficient to take the property from his ownership. For this purpose definite modes of acquisition and transfer are necessary as it is in Jewish Law; see above, note 227.

233 At p. 39 of the Explanatory Notes of 1952.

234 The authorized English version which omits “are entitled” is in error.

235 See e.g. secs. 10, 11 and 17, regarding intestate succession, where the recipient is called “heir”, whereas in secs. 49–52, relating to wills, he is called “the person entitled under a will” (zoeheh). Cf. also sec. 55 of the Bill of 1958 with sec. 49 of the Law.

236 See also (1958) 24 Divrei HaKnesset 2105 (first reading of the 1958 Bill).

237 M. Baba Batra VIII, 5.

238 See (1965) 42 Divrei HaKnesset (second and third readings of the Bill of the present Law) for the explanation of the omission of this section.

239 Cf. ibid. 964 on opposition to this.

240 Gulak, op. cit., III, 84.

241 This was Dr. Z. Warhaftig's proposal: (1960) 28 Divrei HaKnesset 466, but it was rejected, (1956) 42 ibid. 972, 974.

242 (1965) 24 Divrei HaKnesset 972 (Mr. M. Unna). The reply to this suggestion (ibid.) by the spokesman of the Committee does not bear criticism.

243 See Radbaz on Maimonides, , Hilchot Mamrim VII, 14.Google Scholar

244 Opposition to this provision was also voiced in the Knesset, (1960) 28 Diurei HaKnesset 441 (cf. (1962) 32, ibid. 959) and 478. Thestringency of the section is mollified by sec. 14 under which the issue of a disqualifiedheir stand in his shoes. Cf. above concerning the son of an apostate father, who takes his place.

245 In 1951, it was also suggested in England to extend the right of maintenance out of the estate of the deceased on an intestacy. See Explanatory Notes of 1952 at p. 100.

246 See (1958) 24 Divrei HaKnesset 2106, 2357; 28 ibid. 356.

247 Ketubot 52a; Shu. Ar. Even HaEzer XCIII, XCIV and CXII.

248 See Gulak op. cit., III 88–90.

249 M. Ketubot XIII, 3; M. Baba Batra IX, 1; Shu. Ar. ibid. CXII, 11.

250 For particulars of the manner in which maintenance is determined, see secs. 56 and 59.

251 The reason given in the Explanatory Notes of the 1952 Bill for this provision is that the present-day structure of the family in Israel, after years of extermination and with the “ingathering of the exiles”, necessitates and justifies the maintenance of parents by their children.

252 Shu. Ar. Even HaEzer XCIII, 3; CXII, 10. During debate it was alleged that to include the widower and sons in these provisions and not to limit the right to maintenace up to adolescence of marriage was a reception contrary to Jewish Law: (1958) 24 Divrei HaKnesset 2192; (1960) 28 ibid. 442; (1962) 32 ibid. 962; (1965) 42 ibid. 1005. It appears to me that the argument is defective in being excessively formalistic and denies all possibility of reception of Jewish Law. The present example constitutes, to my mind, a proper reception of the central concept of Jewish Law regarding maintenance out of the estate for whoever is in need thereof and its main provisions. The variations have been incorporated in accordance with present-day social and economic conditions and are not inconsistent with that concept.

253 See Maimonides, , Hilchot Nahalot V, 5–9Google Scholar; Turand Shu. Ar. Even HaEzer CLXIII, 4–8; Ho. Mis. CCLXXX, 10–12. For the Jewish position, as well as that of other systems, see Silberg, M., HaMa-amad Halshi BeYisrael (1957) 285–322.Google Scholar In the Law itself a “certain heir” is defined as “one who would have been heir whatever the sequence of the deaths” and “doubtful heir” as “one who would have been heir only if a particular sequence of death had occurred”. For details of the main debate in committee,see Unna, M., HaMishpat Halvri BeHakikat HaKnesset (1967)Google Scholar (a lecture delivered at Bar-Ilan University) p. 13. See also Yadin, U., “The Law of Succession”, etc. (1966) 16 Scripta Hierosolymitana 115–16.Google Scholar

254 Maimonides, , Hilchot Zechia U-Matana VIII, 2Google Scholar; Shu. Ar. Ho. Mis. CCL, 5.

255 Maimonides, op. cit., VIII 2, 24; Shu. Ar. Ho. Mis. CCL, 1 and 8.

256 Maimonides, op. cit., VIII, 25–26; Shu. Ar. Ho. Mis. CCL, 2. See also Yaron, R., Gifts in Contemplation of Death in Jewish and Roman Law (1960).Google Scholar

257 Both in the 1952 and in the 1958 Bill, the Hebrew term shechiv mera does notiappear.

258 In debate subsec. (c) was critically regarded as varying from Jewish Law which avoids the oral will immediately upon recovery, (1958) 24 Diurei HaKnesset 2182; (1962) 32 ibid. 962. This, like the above-mentioned criticism (see note 252) is formalistic with regard to the question of reception. A fixed period is necessary in the circumstances and avoids the difficulties of leaving the determination in each actual case to the undefined motion of recovery. Survival for one month leads to the reasonable assumption that the danger has passed which motivated the will and that is the central concept of Jewish Law.

259 See (1959) 24 Divrei HaKnesset 2181; (1962) 32 ibid. 962; (1965) 42 ibid. 958, 970, 997, 1005.

260 See above text and notes 222 and 223.

261 See (1968) 3 Is. L.R. 428 ff. and 454 ff. and above p. 116 ff.

262 See (1960) 28 Divrei HaKnesset 465, where it is stated that the proposals mentioned were not put into effect because there was no prospect of their acceptance by the Government and because takkanot on halachic matters develop only when the law is positive and mandatory (Dr. Z. Warhaftig). This is, with respect, not quite correct so far as concerns the present matter. The rabbinical courts have here had juristiction for over 40 years. Why were the said proposals not implemented for the purpose of such courts themselves so that they might adjudicate matters on the basis of substantive Halachah and not by virtue of sec. 23 of the Succession Ordinance? It appears that at the end of the debate, the National Religious Party was persuaded that there was no place for the demand to receive the provisions regarding the inequality in succession matters of daughters etc.; they registered no such reservations at the second and third readings.

263 For details, see Elon, , Hakikah Datit 119Google Scholaret seq.

264 State of Israel v. Pesler (1962) 16 P.D. 102; Elon, op. cit., 112 et seq.

265 Yagar v. Palevitz (1966) 20 P.D. (III) 244, 249; Elon, op. cit., 131 et seq.

266 Elon, op. cit., 134 et seq. and 182–84.

267 (1958) 24 Divrei HaKnesset 2358; (1960) 28 ibid. 569; (1962) 33 ibid. 1068.

268 State of Israel v. Pesler (1962) 16 P.D. 109–11.

269 see e.g. (1958) 24 Divrei HaKnesset 2141; (1962) 33 ibid. 1068; (1965) 42 ibid. 1007–8.

270 (1965) 42 ibid. 1008 (Prof. Klinghoffer). Mr. Meridor observed that the expression “common household” covers, literally, also a father and daughter living together.

271 The National Religious Party abstained from voting at the second and third readings because of these sections, ibid. 1115. The Agudat Yisrael Party voted against.

272 See ibid. 952. With regard to this Law, the religious parties did not propose the inclusion of a “renvoi” section to Jewish Law, as in other cases. Such suggestion was made by a Mapai member at one of the readings but he did not persist with it. He also proposed the repeal of art. 46 generally with regard to all Laws. Other members supported him but the proposal was rejected by the Minister of Justice. (1960) 28 ibid. 435; (1962) ibid. 960; 966; (1962) 33 ibid. 1066.

273 See secs. 151 and 155. It should be noted, that under the Law, if all parties agree to the jurisdiction of the religious courts, the latter may distribute under Jewish Law, without regard to equality. Under the previous law, sec. 21 of the Succession Ordinance, 1923, the latter were always obliged so to distribute such part of the estate as was Miri land in accordance with the Schedule to the Ordinance. See (1968) 3 Is. L.R. 429–30 and (1958) 24 Divrei HaKncsset 2140 and (1965) 42 ibid. 1031, 1116.

274 See e.g. the Bailees Law, 1968, at p. 91 above, and the Succession Law, 1965, secs. 9 and 23, at p. 132, 133 above.

275 Two such examples are first the declaration made by judges on appointment—“I pledge myself to bear allegiance to the State of Israel and to its laws, to dispense justice fairly, not to pervent the law and to show no favour”—which is based on Leu. XIX, 15 (“judge your neighbour fairly”) and Deut. XVI, 19 (“you shall not judge unfairly: you shall show no partiality”). In Hebrew, these expressions are identical. The second example is the Agency Law, 1965, sec. 2 of which enacts a Jewish principle in its very term shelucho shel adam kemoto (a person's agent has the same status as that person himself): M. Berachot V, 5; Nedarim 72b; Kiddushin 43a; Y. Kiddushin II, 1; Ho. Mis. CLXXXII, 1. It may be observed that the Judges differ in view—since the judgment in Mitovah Ltd. v. Kazem (1952) 6 P.D.4, regarding the terms “ra-ui” and “muhzak” in the Absentees' Property Law, 1950—as to the interpretation of original Jewish legal phrases incorporated in Israel enactments, but this does not alter the fact that such phrases give a manifest Jewish form to these enactments. I shall later return to this question of interpretation.

276 See p. 130 ff. and note 252.

277 See p. 133 ff. and note 258.

278 See p. 99 ff.

279 See p. 129 ff.