In order fully to understand and appreciate the place of the Religious Courts in modern Israel, we must go back to the time when Palestine was ruled by the Porte of Constantinople and Moslem law was the law of the country. Thereafter we have to consider the period of British Mandatory rule of Palestine and the changes then introduced in the legal system.

The historic and almost revolutionary emergence in the last century and a half of previously amorphous social strata has revealed problems vitally affecting the economic organization of society, which would not seem to yield unitary solution. But the novel conditions of the present time demand radical changes in the legal institutions which have hitherto regulated the economic aspects of life, and in fact a new complex economic instrument has evolved, which is gradually yoking private enterprise with community interest and is in the process destroying the methodological distinction between the private and public domain. This new instrument is built upon old structure, modified by an adaptive reshaping of its fabric, by the addition of new foundations and accommodating itself to new demands, and is in this manner in direct historical continuity. But although this instrument derives from and is fashioned upon earlier legal patterns, it reflects a profound economic and social change as projected on the legal plane. The instrument is the institution we term the “enterprise”.

An oft-repeated proposition asserts that fraud “vitiates the most solemn proceedings of courts of justice. Lord Coke says it avoids all judicial acts, ecclesiastical or temporal”. Fraus omnia corrumpit. That great master of the common law, Willes J., said in 1863: “…a judgment or decree obtained by fraud upon a court binds not such court, nor any other; and its nullity upon this ground, though it has not been set aside or reversed, may be alleged in a collateral proceeding.”

Nevertheless, such declarations cannot be accepted without reservation. Let us illustrate. A man sues for detention of his goods. The defendant asserts that plaintiff's case is a concocted deception; that the documents are forged and that the plaintiff himself and his witnesses are deliberately perjuring themselves. The defendant maintains, in fact, that the goods in question are, at the very time of trial, being concealed by the plaintiff. The court goes fully into the testimony, rejects the allegations of perjury and fraud, and awards the plaintiff damages. The absolute truth will perhaps never be known. What we do know is that the unsuccessful defendant is henceforth estopped by res judicata. He cannot resist the effect of the judgment, still less can he set it aside, unless he can avail himself of fresh evidence, discovered since the trial; and unless, moreover, he can satisfactorily account for not having known this evidence and made use of it at the trial. This has been clear law since at least early in the 17th century when it was expressly laid down by Bacon L. C. Indeed, the need for new evidence furnishes a major distinction between impeachment (or “review”, as it is also called) of a judgment, on the one hand, and an appeal proper, on the other. This distinction is further reflected in the rule that appeals must be lodged within a prescribed period of time—not so impeachments or reviews.

The new Israel Civil Procedure Rules, 1963 re-enact in rr. 269–82, with certain amendments, rr. 241–50 of the Palestinian Civil Procedure Rules, 1938 dealing with “Summary Procedure on Specially Endorsed Statement of Claim”, which in their turn were a colonial version of Order XIV of the English Rules of the Supreme Court. A glance at some recent judgments in Israel shows a surprising number of cases in which doubts have arisen as to the application and scope of the Summary Procedure in general and the defendant's right to be heard in particular. One may wonder whether litigants and lower courts quite understand the rules of the game or whether the game is after all not as easy as might be expected of a summary procedure. And indeed, compared with institutions in continental Europe, where scores of thousands of claims are disposed of without discussion and complaint, our Summary Procedure seems inelegant and burdensome on plaintiff and defendant alike. It is the object of this study to compare it, and the procedure under the English Order XIV, with those European institutions. In view of the gap between Anglo-Israel and Continental notions of civil procedure it may be useful also to sketch the history of the various forms of action, viz. the (summary) trial by documents, the non-litigious executory instruments and the conditional command to pay.

Any scientific discipline worthy of the name is successful in eliciting the essential nature of the area with which it is concerned and in identifying its basic categories and determining the rules applicable to the inter-relationship of these categories. On these conditions alone can scientific inquiry fulfil its major, perhaps only, task of solving the practical problems that arise in the particular area of study. In every science, therefore, a central place is assigned to an examination of its specific categories.

Jurisprudence establishes general juridical categories that prevail in every branch of law. Yet each branch of law, including the criminal law, has laid down and delimited its own particular categories and continues to do so. From time to time social phenomena appear which do not lend themselves to the classificatory grouping of the current jurisprudential theory. In such cases, the scholar must extract the basic constituents of these phenomena, trace their specific consequences, determine their special nature and dovetail them into the classificatory system of the relevant branch of the law. From this process also derives the practical interest of the scholar in facilitating the smooth articulation of the actual phenomena with the previously prescribed categories and relating to them the legal effects specific to the category under which they fall to be grouped.

Although legally the Israel Supreme Court is not bound by its own decisions, in practice it will normally follow them. It is therefore not surprising that when the Supreme Court recently deviated from a previous decision, the case raised considerable interest as well as some controversy. The case in question is Cohen v. Assessing Officer, which was heard before a bench of five judges. By a majority of three to two the Court deviated from a decision which had been unanimously reached, by a bench of three judges, in Ben Zvi v. Assessing Officer. Both cases dealt with a tax problem which confronted the Israeli revenue for the last ten years. As will be shown, the problem is not limited to Israel Law. Indeed, one of the main points considered by the Court was the meaning and effect of the controversial decision of the House of Lords in Sharkey v. Wernher. This was the problem involved.

It is a basic rule of Israel tax law that a man who sells land for a profit is not liable to pay income tax unless the profit has been derived from “any trade…or from any transaction or adventure in the nature of trade”.