When the promisee ceases to be interested in performance of the contract by the promisor—and the case is not caught by the rules relating to frustration of purpose—he will prefer the promisor not to perform it. If breach by the promisor occurs, the promisee will be entitled to damages and where an abstract valuation applies (the difference between the consideration for the property or service under the contract and its value at the date of rescission: sec. 11 of the Contracts (Remedies for Breach of Contract) Law, 1971) that will be very convenient for the promisee. In every case, he will be spared performance on his part. Less convenient, but still sufficiently convenient, is the assumption that it is impossible for the promisor to perform: that the same event which caused the promisee's benefit in performance by the promisor to cease—or some other event—precludes performance by the promisor or renders it too onerous. Here as well the promisee will be spared his own performance and in addition may possibly receive indemnity, under sec. 18 of the Law, “for expenses reasonably incurred and liabilities reasonably contracted by him for the performance of the contract.”

For all its merits, case law is incapable of inculcating Cartesian thinking, thinking which is clear and distinct. Admittedly the legislature also is not always careful in making apparent the ratio of its enactments—sometimes it is not even aware thereof—but at least it will not consciously obliterate distinctions. By contrast, case law normally masks its innovations and postulates conceptions which are somewhat vague. It is consequently natural to regard with suspicion any endeavour to mark out clear-cut boundaries, much in the manner of Roman thinking that “all definitions in law are dangerous”.

Considerations such as these are awakened, for example, in connection with the leading case of Krell v. Henry, the most well-known of the “Coronation cases”. To determine the force and significance of this precedent is a primary task in English law itself because on that will depend whether or not it is innovatory; but it is especially crucial in point of Israel law for the purpose of deciding whether it has any foothold in this country.

One cannot overemphasize the basic rule that the maxims ex turpi causa and in pari delicto operate negatively, that is to say, only so as to bring about the rejection of actions tainted with illegality in its widest sense; but they never operate so as to outlaw culprits or deprive even habitual offenders of their civil rights.

Some doubt may, however, arise whether the same rule applies to illegal associations. After all, associations are not natural human beings, whose rights as such are regarded as fundamental human rights or safeguarded by Bills of Rights. Associations and corporations, of all kinds, owe their very existence to a legal concept which regards them as something additional, sometimes even entirely different from their members.

It is not self-evident then, that illegal associations should or should not be recognized for any civil law purpose, and it is not surprising, therefore, that there has been a diversity of legal opinion on that point.

It is a great pleasure and honour for us to present to Professor Nathan Feinberg on his 80th birthday, as a token of admiration and affection, this issue of the Israel Law Review, which marks the conclusion of the first ten years of publication.

As teachers and students of the Law Faculty of the Hebrew University, we are grateful to him for the leading role he played in the creation of that Faculty. As jurists we admire his undisputed mastery of international law, and as Jews and Israelis we are indebted to him for the service he has rendered to the entire Jewish people, to the Zionist cause and to the State of Israel.

Nathan Feinberg was born in Kovno on June 6, 1895. His aptitude for learning was such that the severe numerus clausus did not prevent his admission to the Russian high school, from which he graduated with distinction in 1914. At the same time he was given a Jewish and Hebrew education privately. He then proceeded to the Faculty of Law of the University of Zurich, from which he graduated magna cum laude in 1918.

This paper is devoted in the main to one aspect of the problem of reciprocity in matters of extradition focusing attention on its impact on the admissibility of a request for extradition when Israel is the requested state and the person sought is an Israeli national.

The State of Israel has entered into bilateral extradition treaties with eight states and through the multilateral European Convention on Extradition with thirteen other states.

A. Three categories of agreements: These agreements may be grouped into three categories according to their treatment of offenders who are nationals of the requested state.

(1) There are in the first place those agreements which contain no reference to or limitations upon the extradition of the parties' nationals, namely, the agreements with the United Kingdom, Swaziland and Canada.

This was an appeal from a decision of the Tel-Aviv-Yafo District Court, declaring the appellant Ross to be liable to extradition on the Attorney General's petition presented at the request of the Government of the United States.

The appellant had been indicted before the Federal Court of the Eastern District of Louisiana on two charges, namely, transportation of a person in interstate and foreign commerce and receiving ransom money, in contravention of, respectively, secs. 1201 and 1202, chap. 18, para. 55, of the Federal Criminal Code. It was alleged that on August 21, 1972, the said Ross, being in possession of a revolver had kidnapped the two and a half year old Diana Cando Creon from her parents' home in the town of Pueblo (Mexico); that between that date and September 12 of the same year he had taken the child across international and interstate borders, from Mexico to the United States and, within the United States, from New Orleans, Louisiana to Biloxi, Mississippi; that he had illegally detained her throughout this period for the purpose of obtaining ransom, conducting negotiations to that effect with her father; and that he eventually succeeded in obtaining, in return for her release, the sum of U.S. $ 105,000—after which the little girl was found safe and sound in a hotel in Biloxi.

Very soon after the establishment of the State (and as an important part of its constitutional structure) the office of State Comptroller, responsible to the Knesset alone and independent of the Government, was established under statute—the State Comptroller Law of 1949. After undergoing a number of amendments, the Law was eventually replaced in 1958 by a Consolidated Version but without any substantive change being made in the functions and powers of the Comptroller, a fact which goes far to demonstrate the proven worth of the office.

Briefly, the functions of the Comptroller are to carry out “inspection of the finances and the management of the finances and the property and administration of the State and of the bodies subject to the inspection of the Comptroller, and to perform the other functions assigned to the Comptroller by this Law”.

The bodies subject to inspection include, in addition to every government department, state enterprises and institutions and local authorities, persons or bodies holding, otherwise than under contract, or managing or controlling any state property or funds in the management of which the Government has a share or which are made subject to inspection by the Knesset or by agreement with the Government.

It is my contention that the concepts which hide behind the terms constituting the title of this essay, have many traits in common and to a large extent deal with the same problem.

This, however, is not sufficiently admitted. Further theoretical and philosophical clarification is overdue.

In the first place the theorist in each field finds it difficult to confess to what extent the prevailing terminology is misleading; the more so because in spite of defective terminology he is—in a general way—in agreement with his fellow-specialists as to the object of their study.

In the second place the theorist in each field, finding it hard enough to follow the torrent of literature in his chosen specialty, tends to neglect developments in fields which however closely interrelated are considered to be distinct.

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

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

This series of articles is intended to deal with one aspect of the sources of Israel law, namely the influence of foreign legal systems and principles derived therefrom on Israel law and on the attempt in recent years to independent creation of local law.

Foreign law constitutes on occasion an actual legal source for the law of Israel. This occurs when a local enactment refers to foreign law and makes it applicable in certain situations. In such case the foreign law which we are to apply constitutes an obligatory legal norm in Israel and is, in fact, part of the Israel legal system. In other cases foreign law influences the process of creation of local law but does not constitute a formal source of law in the Israel system. This happens, for example, when Israel case law relies for authority upon some rule established in an American decision (which is, of course, not binding in Israel) or when the Israel legislator is influenced by a principle of law derived from another legal system. We might say there that the foreign law is an historical source for the Israel rule.

The English “Equity of Redemption” was applied by the courts in Israel long before the enactment of the Security Interests Law, 1967. The courts did not hesitate to transplant this doctrine of English law into the body of Ottoman law which was then applicable in Israel in the field of secured transactions. Yet, the extent to which this symbiosis succeeded had still to be examined, and many questions relating to the right of redemption were still unanswered when the decision was taken to prepare the new Security Interests Law. In the new Law the right of redemption was expressly recognized. The influence of English law on this subject was so marked that on one occasion a Supreme Court Justice characterized the right of redemption provided by sec. 13(a) of the Law, as “actually only legislating the equity of redemption of English law”. It is the purpose of this article to examine the way in which Israel law formulated its “equity of redemption”, to analyze it, to point out its main features and expose its shortcomings.

It may be asserted that freedom of navigation is the cornerstone of international intercourse. It has always been indispensable for shipping, but at the same time, in the past, it did not give rise to any significant conflict of interests. No wonder that freedom of navigation has been universally recognized as a basic norm of international law. Indeed, it is often cited as the most classic illustration of a peremptory norm of the law of nations.

Freedom of navigation could not be confined to the high seas. It was soon realized that to ensure free access to and from the open sea, as well as free passage between its various parts, rights of navigation in several sea spaces other than the open sea should be recognized too. Consequently the ships of all nations are also entitled to enjoy certain rights of navigation in some areas which are subject to the sovereignty of the coastal State, particularly in international straits, even though they may form part of the territorial sea of the riparians. Whereas freedom of navigation on the high seas has long been taken for granted, these limited rights of passage have been the subject of friction and compromises between the users and the littoral State.

The hijacking of a Lufthansa aircraft from Rome to Kuwait, via Athens, consequent upon the massacre at Rome airport, focused attention upon the problem of the prevention and punishment of aerial hijacking.

This issue has many facets, but perhaps one of those which is of most interest to the lawyer is the institution of judicial proceedings against those involved. Insofar as international hijackings are concerned, the offender is always outside the territory of the country from or to which the aircraft is flying, either because of the diversion or because the hijacker has made his safe exit, a condition for the freeing of the aircraft or its passengers and crew. Invariably, too, he is outside the territory of the aircraft's state of registration. This means that extradition becomes a major issue, with the possibility of the hijacker seeking asylum in order to avoid his return to any of the various countries that may be seeking to place him on trial.

Medical jurisprudence and particularly malpractice by the physician have becomes the subject of increasing concern and scholarly interest. The approach of other civilizations to the physician's liability has been previously explored. This inquiry will seek a comprehensive understanding of the liability imposed upon the physician in Jewish law.

First, to provide the proper context, the general status and role of medicine and the physician in Jewish law will be briefly considered. Then, the situations in which a physician is obligated to treat or to refrain from treating patients will be explored. Assuming the physician has agreed to treat the patient, the various standards of conduct—due care, negligence, gross negligence, battery, unauthorized practice—and the liability that attaches in each will be outlined. Then, the special liability of a physician in cases of a patient's death will be analyzed. Thereafter, the effect of a patient's waiver of any claim for damages against the doctor will be considered. Finally, the overall approach adopted by Jewish law to the problem of physician's liability will be evaluated.

Aspects of Jewish Sales Law which may be referred to as the law of warranties are the subject of this article. Only the sale of personalty is dealt with and comparison is made with parallel developments in American Sales Law.

The temptation to engage in extensive discussion of the sources of Jewish Law and of its nature and developments has been resisted and only some brief preliminary remarks concerning Jewish Law have been included but the interested reader is referred elsewhere for further discussion of these matters.

Unlike the Common law, which developed on a case to case basis, Jewish law developed along several lines. Jewish law developed in part on a case to case basis as exemplified by Talmudic discussions and expositions; in part in an enormous and still growing Responsa literature; and in the decisions of Rabbinical Courts throughout Jewish history. On the other hand, the development of Jewish law depended in great part on various Codes, the most important for our purposes being those of Maimonides, Asherides and Karo.

One of the central, and most controversial, issues of historic international law concerns the distinction between the territorial sea, over which the sovereignty of the coastal State extends (and by implication also its legal system), and the high seas which are subject to the doctrine of the freedom of the seas. Involved in that controversy is first and foremost the very idea of a division of the waters of the sea into two distinct juridical institutes. In the present century alone this question has been unsuccessfully tackled by a whole series of major international conferences on the law of the sea, held in 1930 under the auspices of the League of Nations, and in 1958, 1960 and 1973–75 under the auspices of the United Nations—this latter conference being still in progress at the time of writing.

Any attempt to review twenty-five years of legislation and judicial criminal procedure in twenty-five minutes is frustrating, since we have at our disposal one minute for each year of activity. This impossible task was imposed upon my colleagues and myself by the organizers of this important convention, apparently in the belief that Israelis are never deterred by difficult and even hopeless missions.

We shall divide our discussion on criminal procedure into two parts: firstly, a brief history of legislation, and secondly, an examination of the accused's fundamental rights as they are protected in Israel after twenty-five years of statehood, and a partial survey of the Supreme Court's contribution to finding a reasonable balance between the defence of human rights and a guarantee of effectiveness in combating delinquency and bringing delinquents to punishment. The entire discussion will be in general terms, and many of the details mentioned will be no more than selected drops from the ocean of criminal procedure.

The following observations exclude from their scope two questions that are customarily brought into the discussion whenever the problem of self-determination is analyzed, namely:

1) Is self-determination to be equated necessarily with independence or are there any other conceivable models of self-determination?

2) What is a “people” for the purpose of exercising this right and where is the borderline to be drawn between peoples entitled to invoke this right and other entities not so entitled?

It is suggested that for the purposes of these brief observations it be assumed that self-determination is indeed to be equated with political independence and that there exists a way of establishing what group of persons qualifies for the term “people” and which entities do not.