MODERN APPLICATIONS OF JEWISH LAW
NARUM RAKOVER
MODERN APPLICATIONS
OF JEWISH LAW
Resolution of
Contemporary Problems According to Jewish Sources
in Israeli Courts
VOLUME ONE
THE LIBRARY OF JEWISH LAW
The Library of Jewish Law
Ministry of Justice
The Jewish Legal Heritage Society
Foundation for the Advancement
of Jewish Law
©
No part of this hook may be reproduced or utilized in any form or by
any means, electronic or mechanical, or by any information storage or
retrieval system, without permission in writing from the publisher.
The Jewish Legal Heritage Society
P.O.Box 7483 Jerusalem 91074
Printed in Israel 1992
FOREWORD
by
The President of Israel
Chaim Herzog
Law lies at the very foundation of the Jewish People. Law was the
medium by which the tribes of Israel took their first faltering steps
towards nationhood. Even before the Revelation at Sinai, Moses sat to
judge the people and accepted the advice of his father-in-law, Jethro, to
establish a hierarchical judiciary founded on "officers of thousands, officers
of hundreds, officers of fifties, and officers of tens" (Ex. 18:21). These
officers were charged with regulating relations among men and between
the people and their leaders.
Law reigns supreme in the Jewish Tradition. All are equal before the
law, and favoritism is impossible, because "judgment is the Lord's" (Deut.
1:17). On the verse (Deut. 16:20), "Justice,justice shalt thou pursue," Rashi
comments that the appointment of honest judges is "sufficient merit to keep
Israel alive and settle the nation on its land." From here we see that a
just system of law is absolutely necessary to the existence of the Jewish
People and to its possession of the Land of Israel.
Little wonder, given the exalted position of law in our national heritage,
that all who perceive the modern State of Israel to be the dawning of
our Redemption are willing to do everything within their power to see
the state conducted in accordance with the principles of Jewish law. For
my father, Israel's first chief rabbi, R. Isaac haLevi Herzog, of sainted
memory, the yearning to establish Jewish law as the foundation of the
Jewish state was like a fire burning within his very bones. Long before
Israeli independence, he dedicated himself to preparation of a constitution
based upon Jewish law. He wrote: "Even as many remained convinced that
a sovereign, independent Jewish state was impossible prior to the advent
of the Messiah, I myself aspired to found a great movement to persuade
the future legislature to draft a constitution establishing Jewish law as the
law of the land … ; and while I was yet involved in study and research, the
state was proclaimed!"
V
FOREWORD
My father's aspiration to base the law of Israel upon Jewish law, was
rooted in his awareness of that system's ability to find legal solutions for
the problems of every era. Jewish law has never stagnated, never stopped
evolving. In all generations, it has continued to develop as a life-giving
and abundant natural spring – testimony to the vitality and spiritual
virtuosity of a people dedicated to the ideal of moral excellence. The beauty
and uniqueness of Jewish law lay not in its immutability, but rather in
its dynamism, its ability to develop and adapt to change. Though based on a
written Torah received by the people of Israel thousands of years ago
– a Torah not one letter of which may be altered – Jewish law has in
every generation proven itself both qualified and capable of confronting
every challenge and every problem requiring legal solution. This outstanding
characteristic of Jewish law has been responsible for its continued existence
and relevance from ancient times to the present.
In spite of my father's efforts and the efforts of many other outstanding
individuals, Jewish law was not established as the foundation of the legal
system of the Jewish State. Nevertheless, Israeli law and Jewish law are
hardly strangers. On the contrary, over the past forty-four years of Israel's
existence, her legislature and judiciary have relied heavily upon Jewish law.
Judges, interpreting statutes and applying the law, have frequently given
careful consideration to the position of Jewish law, and frequently adopted
the principles and conceptions of Jewish law in both theory and practice.
We can only be deeply grateful, therefore, to Professor Nahum Rakover
for his tireless efforts to re-establish the centrality of Jewish law in the
Jewish body politic by strengthening the connection between Israeli law and
Jewish sources. The current volume, edited by Professor Rakover, shows
the tremendous contribution that Jewish law can make to contemporary
law.
It is my conviction that the greater our reliance upon Jewish law, the finer
and richer the legal system of Israel will be – the more deeply we shall be
rooted in the great Jewish values of justice, morality, and the the supreme
value of human dignity.
Jerusalem 1992
vi
PREFACE
Jewish law is an ancient system whose development has never stopped.
From biblical times to the present it has been the system to which Jews
have turned whenever and wherever they sought to solve contemporary
legal problems by the lights of their Tradition.
Jewish law combines legal analysis of unusual rigor, with practical
wisdom and a highly developed sense of justice and morality. Concepts,
such as the right to privacy and human dignity, only recently recognized
by various modern legal systems, have been an integral part of Jewish law
since ancient times.
The sources of Jewish law are rich and varied. In addition to the Talmud,
the fruit of some five hundred years of legal scholarship, they include the
great codes of Maimonides and R. Yosef Karo as well as hundreds of
thousands of responsa ~ legal decisions handed down by Jewish jurists of
every generation.
What have these sources to offer modern life? To what extent may
they be used to solve the kinds of problems that crop up daily in
contemporary courts of law? The answer to these questions can be found
in Modern Applications of Jewish Law, a work which collects hundreds of
legal decisions rendered by the Supreme Court and district courts of the
modern day State of Israel. The decisions cited here were handed down
from 1948 to 1987, and each of them makes recourse to Jewish law – some
as the actual basis for ruling, and others for purposes of comparison
and perspective. In the vast majority of cases, judges introduced Jewish
law into their deliberations not because of some legal requirement to do
so, but rather as a consequence of their conviction that legal decisions
issued in the State of Israel ought to be based upon the sources of Jewish
law.
In 1980, the Israeli legal system reached an important turning point in its
development. Prior to this time, whenever local statutes and case law were
vii
PREFACE
found lacking, judges were instructed to turn to the principles of Common
Law and Equity of English law. In 1980, however, the Foundation of Law
Act abolished this guideline and replaced it with the instruction: "Where
the court, faced with a legal question requiring decision, finds no answer
to it in statute law or case-law or by analogy, it shall be decided in
the light of the principles of freedom, justice, equity and peace of Jewish
heritage." Many of the post-1980 decisions based upon Jewish law are a
direct result of this legislation.
Modern Applications of Jewish Law is organized topically and contains the
portions relevant to Jewish law of the decisions selected. The head-note to
each decision contains a survey of the facts of the case as narrated in the
original decision, or as summarized by the editor. A decision relevant to
more than one subject area may appear partly in one section and partly
in another. Some decisions appear in only one section but are referenced
in others. The decisions that appear here are drawn from decisions of the
Israeli Supreme Court, volumes 1-40, and from decisions of Israeli district
courts, volumes 1-80 and 1974-1987. Decisions in family law, where by law
all rulings must be based upon the personal law of the parties, are not cited.
The editor has taken the liberty of correcting errors in citation of sources
and completing references but has not commented on the decisions (which
do not necessarily reflect his views).
Of late, Jewish law has gained increasing recognition outside of Israel.
In the academic community, particularly in the United States, a number
of special chairs in Jewish law have been established, and as a result, the
demand for study materials in English has expanded rapidly. There is also
great interest in non-Hebrew speaking countries in what Jewish sources
might offer to society at large. It is with such needs in mind that Modern
Applications of Jewish Law, which originally appeared in 1987, has been
translated into English.
The scope of the work is extremely broad, containing decisions from
every conceivable area of human endeavor. Covered here are not only
such classic legal topics as civil and criminal law, but also discussions
of such fundamentals of law as the force of custom and the force of
precedent; evasion, and legal fiction; and morality and law. As regards
social regulation and administration, we find discussions of immunity,
and of appointment and suspension of civil servants; the requirement that
administrative decisions be free of personal interest and not arbitrary;
confidentiality; the right of citizens to protection of human dignity and
protection against defamation; and the community's obligation to educate
its members. As regards issues of a penal nature, there are decisions
concerning extradition and rehabilitation. In the field of labor law, there
viii
PREFACE
are discussions of employer-employee relations and the right of employees
to severance pay.
The unusually broad range of topics discussed is in itself the best
indication of the ability of Jewish law to confront the entire range of
legal problems, be they classic or modern. Modern Applications of Jewish
Law can, thus, serve not only legal scholars, but also any intelligent person
interested in studying the application of Jewish law in both theory and
practice, its solutions to actual problems, the Israeli judiciary's recourse
to Jewish sources, and most importantly, that which is unique to Jewish
law – its depth, wisdom, and justice, as well as its application to the
reality of modern life.
The growing interest in Jewish law has stimulated the publication of
a number of volumes designed to aid the members of the legal and
legislative communities, as well as scholars and interested laymen. Modern
Applications of Jewish Law is one of a series of original Hebrew works by
the present author, published by The Library of Jewish Law. The Library of
Jewish Law has also published the following works in English: Jewish Law
and Current Legal Problems (Jerusalem, 1984); Maimonides as Codifier of
Jewish Law (Jerusalem, 1987); The Multilanguage Bibliography of Jewish
Law (Jerusalem, 1990). Guide to the Sources of Jewish Law is currently
under preparation.
It is my hope that these works will provide the English-speaking reader
some insight into the depth and breadth of Jewish law.
Finally, I would like to express my gratitude to those who aided in the
publication of the present work: Peter Elman and Debbie Sinclair assisted
in translating the decisions into English; Professor Ben-Tzion Greenberger
contributed many helpful suggestions; and David Derovan prepared the
indices.
Jerusalem 5752-1992
NAHUM RAKOVER
ix
CONTENTS
Volume One
Foreword of the President of Israel v
Preface vii
Contents in Detail xiii
Part One
JEWISH LAW IN THE STATE OF ISRAEL
Part Two
GENERAL PRINCIPLES
Part Three
SOCIAL AND ADMINISTRATIVE REGULATION 137
Part Four
REGULATION OF THE COURTS 241
Part Five
EVIDENCE
Part Six
PENAL LAW 421
89
339
Volume Two
Part Seven
TORTS
Part Eight
OBLIGATIONS
Part Nine
PROPERTY – PHYSICAL AND INTELLECTUAL
Part Ten
COMMERCIAL LAW 767
Part Eleven
LABOUR LAW 813
Part Twelve
INTERPRETATION 845
s11
587
Indices
Subject Index 947
Source Index 969
Statute Index IOOI
Case Index I005
Judge Index 1017
xi
699
CONTENTS IN DETAIL
VOLUME ONE
Part One
JEWISH LAW IN THE STATE OF ISRAEL
Chapter One: THE SOLUTION OF LEGAL PROBLEMS
AND THE FILLING OF LACUNAE
I. The Importance of Jewish Law and Its Role as a
Source of Jurisprudence 5
2. The Desirability of Examining Problems in the Light of
Jewish Law 25
3. Reference to Jewish Law for Interpretation of
Independent Statutes 25
Chapter Two: INTERPRETATION
I. Basic Concepts and Moral and Cultural Principles
2. Statutory Interpretations 38
Chapter Three: "RELIGIOUS" LAW IN THE COURTS
I. Status of "Religious" Law 69
2. Abrogation of Religious Norms by the Secular
Legislator 76
3. Binding Force of Rabbinical Court Decisions upon
Secular Courts 82
xiii
27
CONTENTS IN DETAIL –
VOLU ME ONE
Part Two
GENERAL PRINCIPLES
Chapter One: LEGISLATION
I. Primary and Secondary Legislation 93
2. Local Regulation – Takkanot haKaha/ 93
3. "Forewarning" – Retroactive Penal Legislation 93
4. Status of Deceased Person 93
Chapter Two: CUSTOM
I.
2.
3.
4.
5.
Custom as a Source of Law – Situmta 95
Custom Determinative in Cases of Doubt 97
Conditions Determinative of Custom 98
Conflict of Customs as Between Communities IOI
Custom in Labour Law 102
Chapter Three: FOREIGN LAW
I. The Law of the State is the Law 103
Chapter Four: PRECEDENT
I. The Principle of Binding Precedent l09
2. Care Required When Relying on Precedent
113
Chapter Five: CIRCUMVENTION AND FICTION
I. Avoidance of Statutory Law and Legal Fiction 114
2. Fiction Limited to Particular Cases 118
Chapter Six: LEGAL COMPLEXITY
l. "Half Slave and Half Freeman" ll9
Chapter Seven: MORALITY
1. Immoral Contracts 120
2. Moral Considerations in Medical Experiments 120
XIV
CONTENTS IN DETAIL –
VOLUME ON E
3. The Duty to Rescue and Self-Jeopardy 121
4. The Duty to Rescue Despite Protest
123
5. Acting Beyond the Strict Letter of the Law 125
6. Moral Basis for Duty of Care in Torts 131
7. Moral Duty of Employer to Pay Compensation 131
8. Moral Duty to Chastize Sinners 131
9. "Clean Hands and Pure Heart" as a Condition for
Application to the High Court of Justice 132
10. Middat S'dom 133
Chapter Eight: WEIGHTS AND MEASURES
I. Weights and Measures in Law and the Doing of
Justice 134
Chapter Nine: CONDUCT IN TIMES OF WAR
I. Prohibition Against Waste 135
Part Three
SOCIAL AND ADMINISTRATIVE
REGULATION
Chapter One: HOLDERS OF PUBLIC OFFICE
A. Status and Obligations
1. Immunity of President 141
2. Judicial Character of Public Representatives 142
3. Public Consultation Before Appointment 145
4. The Duty to Act Above Suspicion 146
5. Minor Appointees and Setting an Example 148
6. Appointment of Rabbi 148
7. Duty of Rabbi With Regard to Political Queries 149
8. "Important Personage" and Trading Agreements 154
9. Moreh Hora'ah 154
10. Authority of Rabbi to Disqualify Ritual
Slaughterer 155
11. The Right to Resign 159
xv
CONTENTS IN DETAIL –
VOLUME ONE
B. Dismissal of Public Servant
1. Compulsory Dismissal 160
2. Grounds for Dismissal and Restrictions 161
C. Reinstatement of Public Servants
1. Conditions of Reinstatement
167
Chapter Two: PUBLIC AUTHORITIES
A. Principles of Action
I.
2.
3.
4.
5.
6.
7.
The Right to be Heard 170
Arbitrary Action 172
Tolerance and Discrimination 172
Minority Representation 175
Interested Parties 177
The Obligation to Give Reasoned Decisions 179
Public Tenders 181
8. Public Contracts 182
9. Confidentiality 187
10. Judicial Review 187
11. Majority Decision 188
12. Delegation of Authority 191
13. Exercise of Official Powers 194
B. The Citizen and the Authorities
1. Presumption of Innocence 194
2. Acquisition of Land for Public Purposes 195
3. Collection of Tax 197
Chapter Three: CIVIL RIGHTS
A. Protection of Human Dignity
1. Reputation and Respect 198
2. Oppression of the Convert 202
3. Imprisonment as a Means of Punishment 204
B. Freedom of Religion and Conscience
1. Exemption from Military Service 204
2. Recruitment of Women 207
xvi
CONTENTS IN DETAIL –
VOLUME ONE
C. Freedom of Expression
1. Freedom of Opinion and Expression 208
D. Rights of Aliens
1. Rights of the Gentile in Israel 209
Chapter Four: EDUCATION AND WELFARE
1.
2.
3.
4.
Duty of Father to Educate His Children 220
Communal Responsibility for Education 228
Parental Discipline 231
Physical Injury to Children by Parents and
Teachers 232
5. Raising of Public Funds for Charity 232
6. Entitlement of Property Owners to Charity 234
7. Obligation of Charity Towards One Who is Not
Careful With Funds 236
Chapter Five: TAXES
1.
2.
3.
4.
Poll Tax – Uniformity
Assessment 238
Double Taxation 239
Evasion of Tax . 239
237
Part Four
REGULATION OF THE COURTS
Chapter One: THE JUDICIAL SYSTEM
A. Appointment of Judges
1.
2.
3.
4.
Criteria for Appointment 247
Qualifications of a Dayan (Religious Court Judge) 250
Worldliness 251
Judicial Qualifications 252
B. Disqualification of Judges
1. Self-Interest 253
xvii
CONTENTS IN DETAIL –
2. Judicial Animosity
3. Greeting a Litigant
VOLUME ONE
255
256
C. Judicial Functions and Obligations
l. Judicial Law-Making 257
2. Duty to Give Judgment 258
3. Duty to Argue for a Litigant Unable to Do So
Himself 259
4. Warning Witnesses to Tell the Truth 260
5. Duty Not to Hear One Litigant in the Absence of the
Other 260
6. Duty to Propose Compromise 262
7. Duty to Give True Judgment 262
8. Judicial Truth and the Evidence 262
9. Judgment According to the Claim 265
10. Taking Sides 266
11. Judgment on the Evidence Produced 267
12. Consultation of Professional Literature 268
13. Reliance on Experience 269
14. Duty Not to Bend the Law in the Case of Poor
Persons 270
15. Duty Not to Bend the Law in the Case of a
Criminal 271
16. Power to Waive Orphans' Rights to Avoid
Recriminations 273
17. Court as "Father of Orphans" 274
18. Hejker Bet Din Hefker – Declaration of Ownerless
Property 276
19. Judicial Discretion – Domicile 276
D. Arbitration
l. Appointment of an Acquaintance as Arbitrator
E. Judgment
l. Publication of Minority Opinion 278
2. Error of Law 280
3. Binding Nature of Judgment on Matter of
"Status" 280
4. Judgment by Full Bench 281
5. Duty to State Reasons 281
xviii
277
CONTENTS IN DETAIL –
VOLUME ONE
F. Execution of Judgment
I. Collection of Debts by Self-Help 284
2. The Oath of "Ein Li" – "l Do Not Have" 285
3. Satisfaction out of "Medium" Property 286
G. Respect for Court
I. Refusal 286
2. Contempt of Court 288
3. A Disciple Who Decides the Halakhah in the Presence
of His Teacher 289
4. Respect for Judge 289
H. Lawyers
I. Use of Polite Language 291
Chapter Two: CIVIL PROCEDURE
A. Prescription
I. Grounds for Prescription 292
2. Conflicting Interests 293
3. Presumption Without a Claim 294
B. The Parties
I. Persons Having the Right to be Heard 294
2. Submissions Heard in the Absence of the Opposing
Party 295
C. Jurisdiction
1. Preference for Local Jurisdiction 295
2. "The Plaintiff Must Follow the Defendant" 296
3. Ne exeat regno 298
D. Compromise
I. Grounds and Scope 299
2. Duty to Propose Compromise 303
3. Equal Division in Compromise 304
E. Varying the Amount Claimed
I. Judgment Not to be Greater than Amount
Claimed 305
xix
CONTENTS IN DETAIL –
VOLUME ONE
F. Right to be Heard
1. Duty to Allow Sides to Bring All Their Evidence 307
G. Finality of Judgment
1.
2.
3.
4.
Reopening a Case When Judge is Aware of Error 311
Rehearing in Questions of Age 312
Evidence Not to be Admitted After Judgment 313
Rehearing on Discovery of New Evidence 314
Chapter Three: CRIMIN AL PROCEDURES
A. Detention
1. Detention of Suspect
2. Detention of Women
316
324
B. Delay in Judgment and in Sentencing
1. Delay in Judgment 324
2. Delay in Sentencing 330
C. The Hearings
1. Duty of the Court to Correct Indictment 332
D. Finality of Judgment
1. Acquittal and Retrial as Res judicata 333
2. Rehearing on New Submissions in Capital Cases
3. Rehearing for a Convicted Person 336
Part Five
EVIDENCE
Chapter One: GENERAL
I. Fraud in Proceedings – Credibility of Parties and
Evidence 343
2. Credibility of a Proven Liar 344
3. Credibility of a Criminal 346
4. Evidence of a Minor 346
5. Weight of Evidence by Court Official 346
xx
335
CONTENTS IN DETAIL –
VOLUME ONE
6. Giving Testimony on Oath 347
7. Evidence of Single Witness 363
8. "Wrongdoer" Disqualified as Witness 365
9. Disqualification of a Witness 366
10. Evidence of the Mentally Ill 367
11. Personal Knowledge of Witness 367
12. Contradictory Evidence on Minor Matters 370
13. Distinction Between Contradictions on Substantive and
Marginal Issues 371
14. Retraction by Witness 374
15. Circumstantial Evidence 375
16. Probative and Constitutive Evidence 376
17. Examination of Witnesses 377
Chapter Two: EVIDENCE IN CIVIL CASES
A. Admissions
I. Scope and Types 379
2. Weight 381
3. Conditions for Application of Rule Tacitare est
consentire 383
4. Ambiguous Admissions 384
B. Presumptions
I. A Person Does Not Discharge a Debt Before It is
Due 385
2. Tacitare est consentire 386
3. A Person Does Not Implicate Himself 387
4. The Holder of a Deed is at a Disadvantage 389
5. The Holder of a Deed has a Lawful Claim 389
6. A Signatory Knows the Contents of the Deed 389
7. Omnia praestimuntur legitime fact a 390
8. Witnesses Have Satisfied Themselves as to Capacity of
Signatory 390
C. Modes of Proof
1. Matters of Expertise 390
2. Presumption that is Baseless 391
3. Miggo – "Because" 392
xxi
CONTENTS IN DETAIL –
VOLUME ONE
D. Litigants' Oaths
1. Orphans 393
E. Burden of Proof
Chapter Three: EVIDENCE IN CRIMINAL CASES
A. Conviction and Acquittal
I. Conviction on Circumstantial Evidence 396
2. No Conviction on Probability 405
3. Acquittal in Cases of Doubt 407
4. Conviction on Confession 408
B. Extent of Proof
1. Intimidation and Guilt 414
2. Intimidation and Proof of Contemplating Offence 416
3. Extent of Proof in Cases of Unlawful Relations 416
C. Identification
l.
2.
3.
4.
Voice 417
Physical Features 418
Blood Tests 418
Facial Resemblance 419
Part Six
PENAL LAW
Chapter One: GENERAL PRINCIPLES
I. Ein Onshin Min Hadin – No Creation of Offences by
Inference 427
2. Forewarning 429
3. Emergency Legislation 430
4. Res judicata 431
5. Confiscation of Property 431
6. Conspiracy 432
7. Attempt 432
8. Punishment in Cases of Doubt 433
9. Human Dignity 434
xxii
CONTENTS IN DETAIL – VOLUME ONE
Chapter Two: MENTAL ELEMENT
A. Volition
I. Ability to Distinguish Good from Evil 435
B. Knowledge
I. Absolute Liability 436
2. Foreseeability 438
C. Intention
1. Threats 440
2. Killing of the Wrong Person
441
Chapter Three: DEFENCES
1. Self-Defence 443
2. Theft for Charitable Purposes 450
3. Enticement 450
Chapter Four: IMMUNITY
1. The President 452
Chapter Five: EXTRADITION
I. Extradition to Foreign States
453
Chapter Six: OFFENCES
I. Unlawful Relations 455
2. Rape of Spouse 457
3. Unnatural Relations 460
4. Suicide 462
5. Physical Injury by Parents and Teachers 462
Abortion 465
Mercy Killing 468
Autopsies 469
Deceit and Fraud 470
10. Bribery 471
1I. Invitees and Trespassers 473
12. Desecration of Tombstones 473
6.
7.
8.
9.
xxiii
CONTENTS IN DETAIL –
13. Theft
VOLUME ONE
474
14. Extortion 475
15. Defamation
477
16. Publication of Suspicions 477
17. False Evidence 478
18. Failing to Take Reasonable Means to Prevent
Wrongdoing 480
19. Contempt of Court 481
Chapter Seven: PUNISHMENT
A. General
I.
2.
3.
4.
5.
6.
Punishable Persons 482
Judicial Considerations 484
Plea Bargaining 486
Contempt of Court 489
Punishment Fitting the Crime
Human Dignity 491
489
B. Purposes of Punishment
1. Deterrence 493
2. Suspended Sentence and Repentance
3. Benefiting from Criminality 497
496
C. Reasons for Severity or Leniency
1. Custom to be Uprooted 498
2. Seriousness of Offence against the Public
3. Past Merit of the Condemned Person 499
4. De minimis 499
5. Negative Effect on Public 501
6. Return of Stolen Goods 502
7. Penitents 503
8. Shame as Punishment 504
D. Rehabilitation
I. General 505
2. Validity of Pardons
E. Status of Ex-Convict
I. Innocence 507
2. Freedom of Activity
3. Public Office 509
506
508
xxiv
499
CONTENTS IN DETAIL – VOLUME TWO
VOLUME TWO
Part Seven
TORTS
Chapter One: GENERAL
Consenting to Injury to Person or Property 515
Silence of the Victim 518
Causal Connection 520
Indirect Causation 524
5. Divine Punishment for Indirect Damages 526
6. Interspousal Actions 526
7. Agency to Commit a Wrong 528
8. Contributory Negligence 529
9. Joint and Several Liability 531
10. Absolute Liability 531
I 1. Self-Help 532
12. Loss of Earning Capacity 537
13. Trespassers 539
14. Liability for Injury Inflicted by One's Property 540
1.
2.
3.
4.
Chapter Two: TORTS
A. Negligence
1. "Thou Shalt Love Thy Neighbour as Thyself'
2.
3.
'4.
5.
6.
7.
542
Foreseeability 544
Negligent Misrepresentation 544
Invitees and Trespassers 544
Failing to Set Up Barriers 558
Placing of Obstacles 560
Medical Liability 561
B. Miscellaneous
l. Trespass by Means of Uprooting Fruit Trees
2. Defamation 563
XXV
562
CONTENTS IN DETAIL –
VOLUME TWO
3. Bearing a Defective Child 565
4. Physical Injury by Parents and Teachers 567
5. Emotional Injury 568
6. False Witness 569
7. Extraneous Expenses 575
8. Fraud 575
9. Theft 576
I0. Extortion 576
11. Torts of Neighbours 576
12. Torts by Animals 576
Chapter Three: BURDEN OF PROOF
1. The Goring Ox 577
2. Torts to Neighbours
577
Chapter Four: REMEDIES
1. Mitigation of Damage 578
2.
3.
4.
5.
6.
7.
8.
9.
Restitution for Executing Erroneous Judgment 579
Restoration of Gain Procured 579
Calculation of Damages 580
Equitable Damages 581
Removing Offending Trees 584
Repayment of Extraneous Expenses 584
Seizure to Prevent Damage 584
Payment for "Shame" 585
Part Eight
OBLIGATIONS
Chapter One: RESOLVE TO ENTER INTO CONTRACT
I. Resolve as the Basis for Contractual Undertaking 593
2. Formal Requirements 596
3. Rescission 597
4. Asmakhta 597
5. Ostensible Contract 599
xxvi
CONTENTS IN DETAIL – VOLUME TWO
6. Extent and Validity of Obligation 600
7. Error in Law as Ground for Rescission of Gift 603
Chapter Two: UNDECLARED INTENTION OF
PARTIES
1. Undeclared Intention and Mistake in English Law
2. Notice of Resignation as "Pressure" on Employer
604
607
Chapter Three: GOOD FAITH
I. Source of Duty and Its Extent 608
2. Competition on Sale of Goodwill
615
Chapter Four: FRAUD AND DECEIT
1. Obligation to Refrain from Fraud 617
Chapter Five: DURESS
l. Definition of Duress 619
2. Notice for the Purpose of Rescission on Grounds of
"Duress" 619
3. Duress by Injured Party 632
4. "Distress" 632
Chapter Six: FORBIDDEN CONTRACT
l. Validity 633
2. Exemption Clause Regarding Physical Injury 644
3. Retraction 646
4. Sale of Spes successionis 646
5. Meaning of "Public Policy" 646
Chapter Seven: FRUSTRATION
I.
Vis major 649
xxvii
CONTENTS IN DETAIL –
VOLUME TWO
Chapter Eight: REMEDIES FOR BREACH
1. Penalty Clause
650
2. Sanctions Against One Who Does Not Keep His
Word 651
3. Equitable Damages 652
4. Specific Performance in Land
652
Chapter Nine: INTERPRETATION OF DOCUMENTS
A. Modes of Interpretation
I.
2.
3.
4.
5.
6.
Usage, Language and Place 654
Custom 654
Express Intention 654
The Holder of a Document is at a Disadvantage
Primacy of Affirmative Interpretation 656
Later Term Operative 656
7. Scribal Errors 656
8. Normal Terms Implied 656
B. Implied Terms
I. Power to Vary Contractual Terms to Ensure
Justice 657
2. Gift in the Wake of a Promise of Marriage 661
Chapter Ten: SPECIAL CONTRACTS
I. Dowry 662
2. Independent Contractors 663
3. Brokers 665
4. Maintenance 666
5. Medical Fees 667
Chapter Eleven: SERVITUDES
I. Privity and Debt – Shibuda deRabbi Natan
Chapter Twelve: GUARANTEES
1. Asmakhta – Imperfect Resolve
xx viii
670
669
654
CONTENTS IN DETAIL –
VOLUME TWO
2. Guarantor-Contractor 671
3. Right of Guarantor to Argue Against Execution of
Obligation 673
Chapter Thirteen: AGENCY
I. Duty to Act for Benefit of Principal 674
2. Conflict of Interests 676
3. Appointment of Agent Not Appropriate to a Passive
Act 679
4. Power of Attorney Without Express Indication of
Agent 679
5. Worker Engaged to Find Lost Property 680
6. Good Faith 681
7. Donee of Power of Attorney Does not Acquire Rights
Which the Donor does not Possess 681
Chapter Fourteen: BAILEES
I.
2.
3.
4.
5.
Definition of Bailee Compared to English Law
Classification 685
Negligence in Bailment 686
The Parameters of Normal Manner of Bailment
Expenses of the Bailee of Lost Property 688
683
688
Chapter Fifteen: EQUITY – THE VOLUNTEER
I. Payment of Debt Without Knowledge of Debtor
2. "One Enjoys a Benefit and the Other Suffers No
Loss" 690
3. Duty to Restore Entitlement 691
4. Indemnity of Volunteer 696
5. Invitation to Dine or Lodge 697
xxix
690
CONTENTS IN DETAIL –
VOLUME TWO
Part Nine
PROPER TY
~
PHYSICAL AND
INTELLECTUAL
Chapter One: MODES OF ACQUISITION
l. Agav 703
2. Possession Without Cause 703
3. Acquisition by Means of Processing 705
4. Odita – False Admission by Litigant as Alternative to
Acquisition 707
5. Inability to Vest What is Not Under One's Control 709
6. Things that are not in Existence 714
7. Gifts of a Minor 715
Chapter Two: HIRE
l. Nature
717
2. Sub-hire and Conditional Hiring 721
3. Right of Partner in Jointly Hired Property 722
4. Frustration by Reason of National Disaster 724
5. Tenancy 725
Chapter Three: PROPRIETARY RIGHTS
I.
2.
3.
4.
5.
Extent in Land 727
Benefit 728
Expropriation 729
Rights to Improvements 729
Tenant Protection and Jewish Law 733
Chapter Four: SERVITUDES
l. Distinction Between Servitudes of Person and
Property 734
2. Hypothecation of Chattels 734
3. Charge of Debtor's Property 736
4. Charged and Free Property 737
5. Collection of Debt from Medium Quality Property 738
XXX
CONTENTS IN DETAIL — VOLUME TWO
6. Pledge not Equal in Value to Debt 739
7. Right to Redeem Land Assigned to Creditor
740
Chapter Five.- CONCEALMENT OF ASSETS
I. Ostensible Assignment of Property
743
Chapter Six: MARKET OVERT
1. Purchase of Stolen Property
749
Chapter Seven: COURT SALES
I. Protection of Purchaser in Good Faith 752
2. Rescission of Sale of Orphan Property on Error in
Evaluation 753
Chapter Eight: DECEIT
I. Duty to Inform of any Defect or Claim
2. Deceit and Overreaching 755
754
Chapter Nine: PATENTS
1. Protection 758
2. Payment in Excess of Treatment and Medicaments
Chapter Ten: LOST PROPERTY
I.
2.
3.
4.
Acquisition by Presence on One's Property 759
Costs of a Person Guarding Lost Property 766
Worker Engaged to Find Lost Property 766
Finding Stolen Property 766
xxxi
758
CONTENTS IN DETAIL — VOLUME TWO
Part Ten
COMMERCIAL LAW
Chapter One: PARTNERSHIP
I. Equal Sharing Implied 771
2. Sharing of "Rights" in Jointly-Owned Land 773
3. Option to Buy or be Bought Out 774
4. Sharing on Dissolution of Partnership 776
5. Right of Partner in Hire 779
6. Outgoings 779
7. Right to Use Property of Absent Partner 779
8. Right of Partner to Reimbursement of Medical
Expenses 781
Chapter Two: DEEDS
I. Possession of Deed as Sufficient Evidence
782
2. Holder of Deed at Disadvantage 783
3. Witnesses to Deed Presumed to have Ascertained
Ability of Party to Bind Himself 784
4. Disqualification of Deed of Debt or of Sale Not
Written in Presence of Debtor or Purchaser 786
5. Deed Replaced by New Deed 787
6. Obligation under Deed Exigible from Charged
Property 788
7. Set-Off 788
Chapter Three: INTEREST
A. A ward of Interest
I. Award of Interest for Delay in Payment after
Demand 790
B. Agreement on Interest
1.
2.
3.
4.
Guarantee Against Fall in Value of Money
Collection Fees 806
Negotiation Fees 806
Interest Defined 807
xxxii
794
CONTENTS IN DETAIL –
VOLUME TWO
Chapter Four: BANKRUPTCY
1. Payment of Debts Pro rata 809
2. Majority Determination 810
Chapter Five: TRADE PRACTICES
1. Interloping 8I 2
Part Eleven
LABOUR LAW
Chapter One: MASTER AND SERVANT
RELATIONSHIP
1. Status of Worker-Employee or Contractor 817
2. Child Employed by Parent 818
Chapter Two: CUSTOM
l. Status of Custom 819
Chapter Three: DUTIES OF EMPLOYER
Safety of Employee 820
Services Beyond Duty 822
Unnecessary Work 823
Employee's Benefits 824
Delay in Paying Wages 825
Obligation to Allow Employee to Resign During
Course of Employment 827
7. Groundless Dismissal 827
1.
2.
3.
4.
5.
6.
Chapter Four: DUTIES OF EMPLOYEE
l. Sale of Place of Employment 829
2. Articles Found During Working Hours 830
xxxiii
CONTE NTS IN DETAIL –
VOLUME TWO
Chapter Five: COMPENSATION
A. Severance Pay
l. Obligation to Pay 831
2. Obligation vis-a-vis Employed Child 833
3. Redundancy Pay as a Right of Personal Nature 835
B. Compensation to Heirs of Employee
l. Death of Employee in the Course of Work 840
2. Insurance of Employee's Family After Death 841
Part Twelve
INTERPRETATION
Chapter One: RULES OF INTERPRETATION
l.
2.
3.
4.
5.
Literal Statutory Interpretation 851
Interpretation According to Ordinary Usage 853
Interpretation According to Custom 855
Narrow Interpretation of Legislative Restrictions 857
Interpretation of a Regulation According to the
Intention 859
6. Intention as Opposed to Express Language 860
7. Intentions to be Taken into Account 862
8. Adoption of Conventional Language for Documents in
Case of Contradiction 862
9. Resolution of Contradictions 862
IO. Interpretation Upholding the Document 863
11. Rectification of Scribal Errors 864
12. Interpretation According to the Context of the Passage
or from a Subsequent Passage 866
13. The Subject of a Special Statement Applies to the
General Proposition 867
14. The Negative Implying the Affirmative 867
15. Attribution of Correct Traditional Meaning 868
xxxiv
CONTENTS IN DETAIL –
VOLUME TWO
Chapter Two: WORDS AND PHRASES
I. Dust 871
2. Appraisement
873
3. Religious Way of Life 874
4. "Other" 876
5. Violence 878
6. Supply 878
7. Credit 879
8. "Whether It Be … Or. .. " 879
9. Children or Sons 880
IO. Building 881
11. Liable 882
12. Liable to Punishment 883
13. Pig's Meat 883
14. Dwelling 886
15. Rearing 887
16. Firm Resolve 887
17. Caused 888
18. Road 888
19. Religious Conscience 889
20. Authorization 890
21. Renunciation 891
22. "Transfer" 89 I
23. Distribution 892
24. Negligence 892
25. Vav Consecutive 892
26. Prostitute 894
27. "Abandon" 895
28. "Entertain" 896
29. Injury 896
30. "Applies" 897
31. Partition 900
32. Amnesty 901
33. "Non-Urban" 902
34. Suspicion 902
35. "Idiot" 903
36. Jew 904
37. "Intended" 904
38. "Dwelt" 905
39. "As One" 905
40. "Office" 906
XXXV
CONTENTS IN DETAIL –
VOLUME TWO
41. "Includes" 908
42. Molestation 909
43. Possessed 910
44. Qualified Halakhic Authority 913
45. "Cooperative Settlement" 914
46. Measure 915
47. "Money" 916
48. Delivery "Into His Hands" 917
49. Act of Prostitution 918
50. Distress 918
51. "Had Been Required" 919
52. Encumbered Property 919
53. Hebrew 920
54. Salaried Employee and Unemployment
Compensation 921
55. Oppression 921
56. "On Condition That" 921
57. "Redeemed" 923
58. "Turnover" 924
59. Dispersion and Distribution 924
60. Disqualified 924
61. "Dissolved" 924
62. Ignominy 927
63. Chose in Action 928
64. Pursued 929
65. Interest 930
66. Vehicle 930
67. Volition 931
68. Control, Domain, Public Domain 932
69. Authority 933
70. Oath 934
71. Marketing and Supply 935
72. Market 936
73. Indemnity 939
74. Resident 940
75. Good Faith 941
76. "Dependent Upon … " 941
xxxvi
Part One
JEWISH LAW
IN THE STATE OF ISRAEL
CONTENTS
Chapter One: THE SOLUTION OF LEGAL PROBLEMS
AND THE FILLING OF LACUNAE
1. The Importance of Jewish Law and Its Role as a
Source of Jurisprudence
5
2. The Desirability of Examining Problems in the Light
of Jewish Law
25
3. Reference to Jewish Law for Interpretation of
Independent Statutes
25
Chapter Two: INTERPRETATION
I. Basic Concepts and Moral and Cultural Principles
2. Statutory Interpretations
27
38
Chapter Three: "RELIGIOUS" LAW IN THE COURTS
I. Status of "Religious" Law
2. Abrogation of Religious Norms by the Secular
Legislator
3. Binding Force of Rabbinical Court Decisions upon
Secular Courts
3
69
76
82
Chapter One
THE SOLUTION OF LEGAL PROBLEMS
AND THE FILLING OF LACUNAE
1. The Importance of Jewish Law and Its Role as a Source of Jurisprudence
F.H.22/ 13
BEN SHAHAR v. MAHLEY
(1974) 28(2) P.D. 89, 98, 100
In a judgment by consent it was decided that if the tenant fell into arrears with his
rent he would have to vacate his apartment. Having suffered general paralysis, the
tenant could not fulfill his obligations, and proceedings were brought for repossession
of the apartment. The court held that it had an inherent power to extend relief to a
person who has delayed in doing an act beyond the time fixed for performance by a
judgment, based upon considerations of equity.
Cohn J.: When in order to do justice we deem it proper to ignore English or
American law, I have accustomed myself to first investigate whether there
is anything in the law of the Torah upon which to base ourselves. Not
that English precedent automatically binds us in the absence of precedent
in Jewish law, nor that we are required to decide in accordance with
Jewish civil law; but that the justice that we are obliged and endeavour
to do will be more certain and more solidly grounded if it finds support
in our legal tradition and in the righteous wisdom of our forebears …
5
PART ONE: JEWISH LAW IN THE STATE OF ISRAEL
C.A. 86/ 76
AMIDAR … LTD. v. AHARON
( 1978) 32(2) P.D. 337, 348
The respondent, a new immigrant, applied to the appellant to help him find a workshop
where he could carry on his profession as a locksmith. Having been told that there was
a suitable store, the respondent hastened to enter into a contract with Amidar to
acquire the store. It turned out that !oral town planning did not permit the place to be
used for the intended purpose and proceedings were successfully taken against him
to stop using the place for that purpose. The District Court awarded him damages
for negligent misrepresentation.
Elon J.: The Law and Administration Ordinance (Amendment No. 14)
Law, 1972, provides that "any such provision of a Law as requires such
Law or any expressions therein to be interpreted in accordance with English
law or with principles of legal interpretation obtaining in England shall
no longer be binding." A fortiori, if in 1954, before we gained judicial
"freedom" from subjection to English legal interpretation, this Court was
emboldened to decide as it did in Boinstein v. Kadimah, contrary to what
was then decided Jaw in England, today we are most certainly … obligated
to choose the path we consider to be right under law and just in the
circumstances when deciding a question before us. When a basic problem
such as the present one arises that has no solution in existing law, what
better can a judge do than to plunge into the deep waters of the sources
of Jewish law and bring up the solution he seeks.
C.A. 546/ 78
KUPAT AM BANK LTD. v. HENDELES et al.
( 1980) 34(3) P.D. 57, 66-68, 80
This appeal involved the ownership of certain bearer bonds which the first respondent
had placed in a safe deposit box with the bank and which the District Court had held
belonged to him.
Barak J.: (a) Part of the judgment of the Court of first instance is devoted
to the Jewish law concerning the return of lost property. That Court said:
The present case involves Israeli law, enacted by the Knesset, and the
relevant expressions, such as "another person's domain", which appear
6
SOLUTION OF LEGAL PROBLEMS AND FILLING OF LACUNAE
in sec. 3 of the Restoration of Lost Property Law, 1973, are expressions
known to us from the halakhah. Thus, there is good reason to enquire
into what the halakhah has to say on this subject and learn what
we can from it.
According to Jewish law, the bonds found in the safe deposit room are the
property of the finder and the owner of the place has no right to them,
since the safe deposit room is treated as an unguarded area in the public
domain which does not vest anything in its owner. The Court learned about
the applicable Jewish law inter alia from three opinions of known modern
authorities of stature, who gave their opinion on the question posed to us
by counsel for the respondent – the facts of which are identical with
those in the case before us. I wish to make a number of observations on
the judge's recourse to Jewish law.
(b) Recourse to Jewish law… regarding the interpretation of the phrase "in
another person's domain" is certainly permissible. It is, however, desirable
to fix some bounds. First, such recourse is not obligatory but is only
optional. Secondly, we do not refer to Jewish law as a normative system
from which a prescript is sought, but rather as a treasury of legal thinking
from which we seek inspiration. The recourse is to "law" in its cultural
sense and not to "law" in it normative sense. In the present matter we may
not address ourselves to Jewish law in order to derive from it the law as
to lost property, but merely to obtain inspiration in discovering our own
law. Thirdly, when seeking the meaning of a particular phrase in our
cultural treasury, we must inquire into whether such meaning – alongside
other meanings – reflects the intention of the legislation. I have already
dwelt on the fact that determining the meaning of the phrase, "in another
person's domain" – and only for this purpose may we resort to Jewish
law among others – is not the end of the road but only the beginning.
The task of the interpreter is to choose the appropriate alternative from
among those before him. This choice is not a technical matter; it is a
creative act, effected in accordance with rules prescribed by our law, the
most important of which is the one requiring that a statutory provision be
construed in accordance with the purpose of the enactment.
(c) The recourse to Jewish law mentioned at the end of the passage cited
above is different in nature from that mentioned at the beginning. Whereas
the beginning of the passage is concerned with the interpretation of phrases,
its end is concerned with comparative law. Frequently, before deciding the
content and scope of some legal institution found in his own system, a
judge will turn to other legal systems for comparison, in order to obtain
inspiration. It is an essential condition for the validity of such guidance that
the legal institutions being compared are comparable, that they are based on
7
PART ONE: JEWISH LAW IN THE STATE OF ISRAEL
common fundamental suppositions and are intended to embody common
purposes. In the present case, it is doubtful whether there is any reason for
comparison with Jewish law, and hence whether it is possible to obtain any
inspiration therefrom. That is because the distinction made by Jewish law
between a guarded and unguarded area is based upon the assumption that
either the finder or the owner of the place immediately becomes the owner
of the lost property, and the only question is which of the two is the
owner. As against this, the distinction made by the legislature between
property found in another person's domain and property not so found is
based upon the assumption that, at the time of the loss, the owner of the
lost property remains its owner, and the question is who should preserve
it for him and as a reward for so doing become entitled to its ownership.
Accordingly, between "in another person's domain" in the Restoration of
Lost Property Law and the law relating to guarded areas in Jewish law,
there is no common conceptual foundation sufficient for the purpose of
any fruitful legal comparison.
(d) In analyzing Jewish law, the Court of first instance referred to three
halakhic opinions requested by respondent's counsel. He put to three wellknown authorities a series of facts similar to those in the case before
us and obtained a reply as to the position taken by Jewish law. These
replies were then submitted to the lower court. Counsel for the appellant
expressed reservations about the submission of the opinions but the court
found no reason not to receive them. The Court stated: "It is a daily
occurrence for a court to invoke the assistance of the Responsa literature
in order to resolve a problem that engages it. If the authorities involved
are contemporaries, is that invalid?" With all due respect for the Court at
first instance, the responsa that constitute part of the Jewish legal system
are not comparable to a specific responsurn on the very matter pending
in court. In the present matter Jewish law is not the "law applicable in
Israel"; there, the Restoration of Lost Property Law and not Jewish law
applies. Neither is the latter a foreign legal system by which to decide the
law, the content of which must therefore be proved as a fact by means
of an opinion. Here, Jewish law is a legal system that serves for judicial
guidance by way of comparative law. We learn about it from the texts that
are available to the public for consultation. It does not seem to me right
in these circumstances to rely on a question directly touching the subject
matter of the present case posed for the purposes of that case, and on the
consequent reply.
Elon J.: Lastly and most importantly, I find this manner of interpreting the
phrase "in another person's domain", and the object of sec. 3, within the
Jewish legal system. The Restoration of Lost Property Law of 1973 is one
8
SOLUTION OF LEGAL PROBLEMS AND FILLING OF LAC UNAE
of the subjects of independent Israeli legislation in the field of civil law,
in which a leading place is assigned to Jewish law for its interpretation.
I have dealt with this difficult question in detail in Roth v. Yeshufa (see
C.A. 148/77, 632-633), and that judgment may be consulted. The general
observations of my learned friend Barak J. on this question do not seem to
me to be as sufficiently comprehensive as they might. Of course the
interpretation of this independent legislation in accordance with Jewish
law is inappropriate when it is clear from the content of the particular
law concerned that it is contrary to the approach and purpose of Jewish
law on the subject, and one may not therefore confuse disparate things. But
where the situation is otherwise and a doubt arises for which no solution
is to be found within the law itself, we must turn first to the principles
of Jewish law as the foremost source, which, although not binding upon
us, may lead us to a solution of the problem presented to us.
Doubt having arisen here over the meaning of the provisions of sec. 3
of the Law and the meaning of the concept, "in another person's domain",
and no answer being provided by the law itself, we may properly turn to
the Jewish legal system for a solution to the problem. This is certainly
the case when we realize that the Restoration of Lost Property Law of
the Knesset and the Jewish law relating to the restoration of lost property
have a common central object – to restore lost property to its owner.
We dwelt on this aspect at the beginning of our opinion and we have
observed that the Knesset, during the second and third readings of the Law,
saw fit to change its name from the Treatment of Lost Property Law to
the Restoration of Lost Property Law, both because that is its objective
and because that is the name attached to the series of the pertinent rules in
Jewish law. Furthermore, the concern displayed by Jewish law for finding
the owner of lost property is so far-reaching that with regard to certain lost
articles-those with distinguishing marks, and in respect of which it is not to
be assumed that the owner has abandoned all hope of recovery – it
prescribes that they never pass into the ownership of the finder, but are
left "until Elijah will come" and the owner will be found (Baba Metzia 30a;
M.T Geze/ah veAvedah 13:10; Hoshen Mishpat 267:15). And while Jewish
law originally held that lost property may be taken by the finder for
his own in cases where we may assume that the owner has abandoned
hope of recovery, it was decided at the end of the tenth century, both in
Babylonia and in Germany, that even as to such lost property the finder is
bound to restore it to the owner if and when he claims it (Resp. Rabbenu
Gershom Me'or haGolah, 67; Teshuvot haGeonim, Sha'arei Tzedek, Part
4, 1:20), and this was accepted as the law in practice (see M. Elon, Jewish
Law, Part 2, pp. 564-66 and note 32).
9
PART ONE: JEWISH LAW IN THE STATE OF ISRAEL
FH 13/80
HENDELES v. KUPAT AM BANK LTD. eta/.
(1981) 35(2) P.D. 785, 788-799
The issue in these proceedings was whether lost property found on the floor of a
bank's safe deposit room was found "in another person's domain" within the meaning
of sec. 3 of the Restoration of Lost Property Law, 1973. In the course of the hearing,
the position of Jewish law in the Israeli legal system was reviewed.
Cohn D.P.: In Kupat Am Bank Ltd. v. Rende/es et al. (1980) 34(3) P.D. 57,
this Court held by a majority that lost property found on the floor of a
bank's safe deposit room was found "in another person's domain" within
the meaning of sec. 3 of the Restoration of Lost Property Law, 1973
(hereinafter referred to as "the Law"). The meaning of the term "domain"
is the subject of differences among the halakhic authorities and appears to
me sufficiently important, complex and novel to necessitate this further
hearing, as distinct from the additional question arising in the present
petition: namely, that even if the bank were to be regarded as the owner of
the domain, it cannot be deemed the finder since it never took the lost
property into its possession (as provided at the end of sec. 3). Regarding
this additional question, it seems to me obvious that the petitioner cannot
plead that he did not follow the directives of the Law and did not
hand over the lost property to the owner of the domain when requested
to do so: it is obvious that no plaintiff can establish his case on the
basis of his illegal act. The argument of petitioner's counsel that there was
no "request" here in the sense of the law, either because the bank clerk
asked or suggested but did not "request", or because the request was not
uttered by or come directly from those authorised to sign on behalf of
the bank, did not merit being heard in the court of first instance, and
certainly not in this further hearing.
No one will dispute that the Law is to be construed according to its terms
and its purpose; and all agree that the purpose of the Law is the restoration
of lost property to its owner (as its title attests). The matter in dispute
is what will better advance the restoration: leaving the lost property in
the possession of the owner of the domain or in that of the finder. It
might be said that the owner of the lost property will return to the owner
of the domain, because there is a presumption that the latter will look
after anything lost within his domain, and therefore it is preferable to
leave it with him; on the other hand, the owner of the lost property may
despair of the owner of the domain, as that domain is like a public
place and its owner has no control over it, nor does he know those who
10
SOLUTION OF LEGAL PROBLEMS AND FILLING OF LACUNAE
pass through it, and in that case it may very possibly be more desirable
to prefer the finder to him. In this respect, I accept the approach of
Landau D.P. (as he then was) that the main hall of the bank, open to all,
is unlike the safe deposit room "over which the bank has full supervision
and which is not open to the entire public". The owner of the lost article
might regard the hall of the bank, accessible to all, as a kind of public
thoroughfare, whereas the safe deposit room, entry to which is restricted
to those who have rented safes and those accompanying them, who are
observed by the clerk in charge, would be regarded by any reasonable
person as an obviously private domain.
I am nevertheless prepared to proceed from the assumption that, as
regards reasonable prospects for the restoration of the lost property,
there is little difference whether it will be looked after by the owner of
the domain, by the finder or by the police (which, under sec. 2(b) of
the Law, may require that the article be handed over to it). Even if
the owner of the lost article goes first to the owner of the domain, it
should not be assumed that, upon not finding it there, he will not go
and enquire of the police. Even if the article has not been handed over
to the police, there is a possibility that the finder's name and address
have been recorded (sec. 2(a) of the Law and reg. 2 of the Restoration
of Lost Property Regulations, 1973). The question therefore still remains:
Who is the owner of the domain mentioned in sec. 3?
The learned judge of the District Court regarded the term "domain" as
one taken by the legislature from Jewish law, and which therefore needs
to be interpreted according to its meaning in Jewish law. I do not propose
to dispute the basic assumption that, where the legislature chooses an
expression or phrase peculiar to Jewish law, it is properly to be construed
according to the meaning (or one of the meanings) attached to it in
Jewish law; this Court has so proceeded many times. But I do dispute
the assumption that the term "domain" was taken by the legislature from
Jewish law; the term is in wide use and is invoked in our daily legal
terminology, so that there is no occasion or need to seek it in Jewish
law and borrow it from there. The late Cheshin J. has already drawn our
attention to the fact that the Israeli legislature naturally enough employs
many legal terms that find a place in Jewish law, such as promissory note,
loan, encumbrance, partnership and others but that does not warrant
– or a fortiori compel – their interpretation in accordance with Jewish
law. The law is to be construed according to the purported intention of
the legislature: where it has disclosed its intention to have an enactment
interpreted according to Jewish law, by choosing an expression or phrase
actually unique to Jewish law and not commonly current among presentday lawyers, the court will try to realize the legislative intent and draw
ii
PART ONE: JEWISH LAW IN THE STATE OF ISRAEL
its modes of interpretation from Jewish law. It is otherwise when the
legislature has chosen to employ legal terms in current use: in that event,
its presumed intention was that its language be taken literally according to
the accepted rules of interpretation long followed by this Court.
This simple approach is not affected by the introduction of the
Foundations of Law Act of 1980. The need to refer to the sources of
the Jewish heritage does not arise at all so long as an answer can be
found to any question requiring decision "in statute law or case law or by
analogy". We must first seek a solution to our problems in the law itself,
and must interpret the law according to the rules of interpretation that
have repeatedly been laid down by case law.
That does not mean that we must rigidly refrain from having recourse to
Jewish law so long as we can adduce therefrom concurring or contradictory
proof or material for comparison or wisdom and understanding in deducing
good attributes, but all this is optional and not obligatory, and if those who
do so extensively are praiseworthy, those who do not do so are not to be
censured. There are judges who abide by the doctrine of their predecessors
and recoil from or shun all dicta that are irrelevant to the actual decision;
for them and their like, any such dallying with Jewish law is totally invalid.
Even if I do not side with them and am not rigid about dicta, I nevertheless
do not close my eyes to the fact that citations from Jewish law are by way
of being obiter.
Furthermore, even if a given term or phrase borrowed from Jewish
Jaw is to be construed according to its meaning in Jewish law, that
does not entail applying the substantive provisions of Jewish law, as if
it were the statutory enactment of our legislature. Let us see how my
learned friend Elon J., in his abundant and keen erudition, has proceeded
in the present appeal. Having come upon the term "domain" adopted
by the legislature, which can be variously interpreted, he did not seek
in Jewish law or generally any definition or dictum concerning "domain"
which might assist in its construction, but he adopted the provisions
of the Mishnah regarding property lost in a money-changer's shop and
applied them to property Jost in a bank building, as if the provisions of
the Mishnah had statutory force. It is possible that the money-changer
of those times is the bank of today; it is also possible that a moneychanger's office is in every way like a bank's safe deposit room; and it
is very possible that the statutory solution of the Mishnah is preferable,
in its degree of justice, to any other possible statutory solution. Yet there
is nothing in the doubtful meaning of the term "domain" used by our
legislature to justify the absorption of the provisions of the Mishnah into
the body of lost property Jaw, even if there were justification for adopting
the definition in Jewish law of the term "domain" itself. Regarding the
12
SOLUTION OF LEGAL PROBLEMS AND FILLING OF LACUNAE
correct interpretation of the term, we can learn nothing at all from the rule
that, if a person finds lost property in one part of a money-changer's
shop, it belongs to him, but if he finds it in another part, it belongs to
the money-changer. Equally, regarding such interpretation, we can learn
nothing at all from the distinction, following the mishnaic rule and its
explanation, between a guarded area and one that is unguarded. The fact
that one of the commentators explains the rule relating to an unguarded
area by ascribing to it the nature of a public place does not convert
an unguarded area from private to public domain; for the meaning of
"domain" this rule is immaterial.
Had it been the intention of the legislature to render the mishnaic or
other like rule applicable, he could and should have said so explicitly.
For instance, he could have distinguished between a private domain open
to all or to many and a private domain not accessible to an uninvited
stranger, and he could have made different rules regarding property lost in
the different domains. The fact that the legislature knows how to express
what it wishes to express is demonstrated – if demonstration is needed
– from the wording of sec. 7(a), which states that even a place which
the public frequents falls within the definition of private domain, the
rule being that the owner of the place or establishment is to be regarded
as the finder.
The phrase, "A person who finds lost property in another person's
domain", as provided in sec. 3 of the Law, must be taken literally: a person
who finds lost property not in his own domain or in the public domain. To
support his plea that the bank falls within the definition of public domain
in this regard, petitioner's counsel referred us to the definition of "street"
or "road" in the Interpretation Ordinance [New Version], according to
which these terms include "any… open place used by the public… or to
which the public have or are permitted to have access". But the purpose
of this definition is to extend the usual meaning of "street" or "road";
wherever these words appear in an enactment, they must be interpreted
broadly, "unless… there is something in the subject or context inconsistent
with such construction" (sec. 2 of the Ordinance); but this does not involve
turning a private into a public domain contrary to the "natural" order,
as if by giving the public permission to enter into an area belonging to
me I had renounced all control over it.
I harbour no doubt that the bank's building is its "domain" whether
or not the bank opens it to the public; and this "domain" cannot change
from time to time with the hours of banking so that when the bank is
open it is a public domain and when the bank closes it reverts to a
private domain. The fact that the public enters and leaves the building
derives from the exercise of the ownership by the owner of the domain in
13
PART ONE: JEWISH LAW IN THE STATE OF ISRAEL
allowing the public to do as they desire but there is nothing to prevent him
from withdrawing such permission or to restrict it as he pleases. A person
who finds lost property in a bank finds it in the domain of the bank,
whether the building is closed or open, and irrespective of how he found
it, as, for example, in the hall of the bank when customers and others were
still around, or after the bank was closed. The bank's private domain is no
different from the private domain of any other person. Had the legislature
wished to distinguish between the two, it could and should have done
so; just as the Mishnah made a special rule regarding money-changers,
the legislature could have made a special rule for banks.
It is perhaps incongruous that a provision which the legislature confined
to private domain should also apply to a place which the public uses and
through which it passes, but that is the concern of the legislature. So long as
the Law remains in its given terms, "in another person's domain" includes
a private domain which the public uses and passes through. The question
whether this is just or not, or whether a more just statutory arrangement
might be found, does not arise in any way at all. He who regards the
arrangement of Jewish law preferable to that of our statute can suggest
its adoption by the legislature, but he cannot make himself the legislator
and replace the statutory arrangement with that of Jewish law. For myself,
I am not persuaded that the Law needs amendment: every finder may
derive rights from "ownerless" property, and I do not know why the right
of a finder by his own efforts takes precedence over the rights of a finder
by virtue of the Law. On the contrary, where a person takes hold of lost
property which to all appearances the owners have not abandoned hope
of recovering, and seeks to obtain some entitlement to it, a taint of theft
pervades his act, and there is good reason that our master Maimonides
conjoins the laws relating to gezelah (theft) and lost property.
I therefore concur in the view of the majority of the judges who sat in
C.A. 546/78 (1980) 34(3) P.D. 57, and I propose that the earlier judgment
of this Court be upheld.
Elon J.: I have reviewed the submissions of counsel for the respondent and
can find nothing to make me change what I wrote in the above-mentioned
appeal judgment. I have explained at length my opinion in that judgment
and I see no occasion or need to go over it again.
My learned friend Cohn D.P., in the course of dealing with the matter
before us, examined the weighty subject of the recourse in the Israeli legal
system to the rules of Jewish law. I also shall say something about my
approach to this important matter and thereby clarify the remarks I made
in the above-mentioned judgment.
My learned friend says that the phrase "A person who finds lost property
14
SOLUTION OF LEGAL PROBLEMS AND FILLING OF LACUNAE
in another person's domain" which appears in sec. 3 of the Law must be
taken literally to mean a person who finds lost property not in his own
domain or in the public domain. And then further on he says, "I harbour
no doubt that the bank's building is its 'domain' whether or not the
bank opens it to the public." With the greatest of respect, had I also
harboured no doubt that that was indeed the meaning of "in another
person's domain"… there would be no occasion to resort to any other legal
system whatsoever, including Jewish law, in order to construe under its
inspiration the meaning of this section, since the Law is to be construed
first and foremost by and within its own provisions. That is commonplace
among lawyers. And, needless to say, even in such a case a judge will
sometimes examine another legal system, if he deems that desirable, in
order to broaden his thinking and deepen his analysis for its own sake.
It is right and proper that such examination should be made of Jewish
law and other legal systems, as the occasion requires, so that the question
is settled as clearly as possible. The trouble is that here the concept
"in another person's domain" is subject to various interpretations, as my
learned friend Barak J. has noted in C.A. 546/78 and as I also observed
there. What should a judge do in such an instance, what course should he
pursue in his interpretation? He must examine the provisions of the entire
section concerned, search the other sections of the Law in its entirety,
seek assistance by way of analogy from other sections and other matters;
perhaps all that will stand him in good stead. That is to say, he must be
more comprehensive but no less precise: he must go thoroughly into
the nature and object of the Law. At times, he will thereby achieve his
aim; but sometimes he will still retain doubt, for it is well-known that
just as "a pit cannot be filled by its own digging", so not infrequently
an enactment cannot be filled out by its own sections. A judge may often
extract from an enactment only suggestions for the solution of a question
pending before him; at that stage, he finds sustenance from other legal
systems or the studies of legal scholars. All this may at times be done
consciously, openly and explicitly, and at other times not consciously, not
explicitly but in actual fact.
Reference to another legal system has two aspects. One appears when a
court cannot find – either in existing legal sources or by way of analogy
– any answer to some legal question, so that a lacuna is created. In this
case the legislature has conferred – since the repeal of art. 46 of the
Palestine Order in Council – the status of a complementary source of
law to "the principles of freedom, justice, equity and peace of Israel's
heritage" (Foundations of Law Act, 1980; this is not the place to expand
on the meaning and range of these key concepts). The other aspect appears
when the legal question that has arisen does not involve a lacuna but
15
PART ONE: JEWISH LAW IN THE STATE OF ISRAEL
concerns the interpretation of an existing legal provision regulated by
statute, but the interpretation of which may vary, and the problem of
the court is to determine which is the correct interpretation. An example
is the present matter where we are in doubt as to how to interpret
sec. 3 with regard to "another person's domain". An important difference
exists between these two aspects in point of the status and force of the
other legal system to which the court turns; whilst in the event of a lacuna
the status of the above-mentioned principles of Jewish law is that of being
a complementary source of the legal system and the court is directed
to refer to it as a binding source, in the second instance, when there is
doubt as to how to interpret an existing provision, reference to another
legal system is only a reference to a source of inspiration, to a legal system
that is not binding but is only instructive, that does not decide but only
influences. Parenthetically I shuuld add that this difference between a
lacuna and doubt as to interpretation is not an easy one and no hard and
fast rule can be laid down. Many scholars have already expended thought
on it. This is not the place to elaborate and I shall note only one example.
More than once has it been held by a number of judges of this Court
that the concepts of law founded in moral and cultural values – justice,
good faith, public policy and the like – that are to be found in the Israeli
legal system, should be construed in accordance with the basic conceptions
embedded in the cultural and ethical values of Jewish law ( C.A. 566/77,
p. 150 and the decisions cited there; C.A. 148/77, p. 631; Cr.A. 89/78, p.
155).
In respect of these value concepts, which apart from their names do
not refer to any substantive content, it seems to me that to distill their
essence is in the nature of supplying a lacuna, particularly in the light of
sec. 2 of the Foundations of Law Act which expressly directs us to these
values. Accordingly, the mode of interpretation adopted by these judges
is really to fill a gap and is not merely interpretation, with all that this
involves …
When reference is made to another legal system simply for inspiration,
and it is for the court to decide from which sources to derive this
inspiration, it must primarily resort to the principles of Jewish law as
the foremost source to guide it in resolving the problem confronting it.
On this status of Jewish law as a primary inspirational source inter pares I
have dwelt more than once, and most recently in my opinion in the present
appeal. Two grounds exist for this view. The first is that this is required
by the fact that both in the Explanatory Notes to various bills and in
the debates of the Knesset it was repeatedly emphasised that the Jewish
legal system, of all other legal systems, served as the main source for
the principles of those laws and that particular attention was paid to
16
SOLUTION OF LEGAL PROBLEMS AND FILLING OF LACUNAE
incorporating Jewish law principles into Israeli law (see, e.g., C.A. 604/77,
p. 97; C.A. 148/77, pp. 632-633; C.A.311/78; etc.) An outstanding instance
of that process is provided by the Restoration of Lost Property Law which is
our present concern. It is well known that Jewish law was in the past, as
today, "an inalienable part of the civilisation [ of the Jewish people]" (per
Agranat P. in C.A. 191/51, p. 177). It is obvious therefore that inspiration
for the interpretation of the legal system of the Jewish state should come,
first and foremost, from the national legal system which forms its legal
cultural background, in the same way as this approach to Jewish law
served those who proposed and drafted the Law as the principal source
upon which to base their labours (see C.A. 604/ 77 and C.A. 148/77).
These considerations now take on special significance in view of sec. 2 of
the Foundations of Law Act dealt with above, which, although concerned
with lacunae in legislation, suggests which legal system is favoured by the
legislature, even if only as a source of inspiration.
The second ground, too, is of very considerable importance. Israeli
legislation, as we know, was preceded by virtually no Israeli legal theory
which judges might consult when seeking to establish the nature and meaning
of the fundamental legal concepts scattered throughout the legislation, or
when it was necessary to reconcile different, contradictory provisions and
in like cases. One of the major tasks of the courts in the course of their
daily work is the creative development of this legal thinking. To confer
paramount status upon the Jewish law system as a source of inspiration
for interpreting Israeli law – before referring, in cases of doubt, to one
legal system regarding some matter and to another legal system regarding a
second matter – is conducive to the establishment of a uniform foundation,
and the evolution of a rich, homogeneous jurisprudence in the Israeli
legal system. I respectfully agree, with all respect, with the remarks of
Landau P.:
Israeli secular law is a law without historic roots of its own…. It is
made up of many strata, each having its own historical source. But
the history is not ours. This is the great problem of modern Israeli
law, and many of us – even the most secular – are pained by the
fact that no synthesis has so far been achieved between Jewish law
as a national cultural asset and the requirements of a modern society
such as ours (M. Landau, "Law and Discretion in the Legal Process"
(1969) l Mishpatim 292, 305).
Reference to the Jewish legal system as the supreme source of inspiration
in the interpretation of Israeli law, when effected with proper deliberation
and the necessary caution, as the occasion and the subject matter of the
law involved requires, will give Israeli law historic roots of its own and
17
PART O N E: JEWISH LAW IN THE STATE OF ISRAEL
allow for the development of a synthesis between the two systems (see
also, M. Elon, Jewish Law, 2nd ed ., Part I, 116 ff.).
Let us now return to the matter before us. As I insisted in my opinion
in the appeal, the course which Barak J. takes in construing sec. 3 of
the Restoration of Lost Property Law does not commend itself to me.
According to that construction, the provisions of sec. 3 form the main
rule of the Law whilst the provisions of sec. 2 are the exception. This
conclusion, it seems to me, is not at one with the plain meaning of the
Law, nor in my opinion does it conform with the object of the Law.
It does not advance the Law's declared object of effecting and assuring
the restoration of lost property to the owner, and the conclusion that
follows, i.e., that if the owner is not found after four months the property
passes into the ownership of the bank and is not handed over to the
immediate finder, fails to pass the test of reason and justice, as indeed was
stressed also by my learned friends Landau P. and Barak J. in the appeal.
And it is also a rule of interpretation, that a law must be interpreted,
so long as this is not inconsistent with its express terms, in a manner
yielding a result that is just and reasonable. I dwelt on all this in my
opinion in the appeal. But all this apart, and apart from the fact that most
legal systems of which I am aware disagree with the mode of solving the
problem proposed by my colleague (as I also pointed out in my said
opinion), since the interpretation of sec. 3 is not resolved by the terms
and content of the Law itself and the section may be variously interpreted,
it is right and proper to seek inspiration and guidance primarily from
the regulation of the matter in the relevant Jewish law, as I explained
above. (And) I do not reach this conclusion because the term "domain" is
specific to Jewish legal sources and has been taken from them, but because
in my opinion, when there is doubt as to how to interpret a law, which
cannot be resolved by attending to the terms and content of that law,
we must consult the source of inspiration … and turn to the Jewish legal
system to find in its provisions a way to solve the problem, provided
– as I have emphasised – that the solution is not inconsistent with the
provisions of the law and does not entail the mingling of unlike things.
In the opinion of my learned friends Barak J. and Landau P., the basic
assumptions of Jewish law in the present matter differ from the basic tenor
of the Restoration of Lost Property Law, since Jewish law is concerned
with the question of who is the owner of the lost property, whilst the Israeli
legislature is concerned with the question of who should guard it and
become entitled to it. With all due respect, I find it difficult to understand
this argument. The difference to which my learned friends point is created
as a result of the manner in which they interpret sec. 3, that its underlying
consideration is that upon which American legal scholars, cited by Barak
18
SOLUTION OF LEGAL PROBLEMS AND FILLING OF LAC UNAE
J., have dwelt -i.e., what is the address to which the owner of the lost
property may reasonably apply when searching for it. As I said in my above
opinion, I do not regard that to be the objective and meaning of sec. 3.
That section only provides that when lost property is found in the domain
of another person, his claim to the property takes precedence over a claim
by the finder, and for that reason the former is entitled to keep the property
if the owner is not discovered. Sec. 7(a) of the Law, from which the
learned President inferred what he did, does not, in my opinion, enlighten
us on the question before us, since it speaks of property knowingly deposited
or left behind and not claimed by its owner, where the logic of the situation
differs from that here. The conclusion which I reached under inspiration
of Jewish law not only does not conflict with the provisions of the Law,
but fits in well with its content and purpose…
I have dwelt somewhat at length on this theme for two reasons. First,
up till now no better and more fitting example has presented itself to
me for explaining the proper manner in which, in my opinion, Israeli
legislation is to be interpreted. The second reason is R. Judah's dictum (T.
Eduyot 1:4): "The words of an individual are not mentioned amongst
those of the majority except when the occasion requires it for support"
(see also M. Eduyot 1:5 and Rabad and Rash miShantz ad loc.) …
Levin J.: I concur fully in the conclusions reached by my learned friend
Barak J. and the reasons he gives in his exemplary opinion with regard
to the two questions around which this further hearing revolves: whether
the bank is to be treated as the finder, although it did not take over the
lost property physically; and what is the meaning of "in another person's
domain" in sec. 3 of the Restoration of Lost Property Law, 1973.
I, too, would interpret these words according to the legislative objective,
and I have no doubt that the bank's safe deposit room is, for the purpose
of sec. 3, in its domain, and it is the place to which the owner would
naturally address himself in order to locate the property…
Barak J.: I have considered very carefully my opinion in the appeal and have
found no occasion to change the views I expressed there. I could thus end
my remarks in this further hearing were it not that my learned friend
Elon J. has expanded on the status and place of Jewish law in the
judgments of this Court. It appears to me that this question does not
require any decision in these proceedings and I therefore do not intend to
spend much time on it here. Nevertheless I wish to register here and now
two "notes of warning" regarding the points on which I differ from him.
First, where Israeli legislation has recourse to such fundamental terms
as "justice", "good faith", "public policy" and other like value concepts,
19
PART ONE: JEVISH LAW IN THE STATE OF ISRAEL
the task of the court is to furnish them with concrete content according to
the statutory purpose and having regard to conditions in Israel, existing
or desirable. Here the judge is not at all confronted with a lacuna, since
the legislature has stipulated the applicable norm. I therefore can see no
need to resort to the provisions of the Foundations of Law Act, which
are concerned only with completing lacunae. Secondly, where a legislative
matter requires interpretation and the task presents difficulties to the judge,
it cannot be said that interpretative inspiration must come primarily from
the principles of Jewish law which constitute the supreme source. It would
be a mistake to replace English law by Jewish law as the source for
interpreting legislation. A piece of legislation must be interpreted from
within itself in order to realize its objective in the context of existing
realities. Where a piece of legislation is influenced by a foreign system
we may turn to that system for inspiration, which entails broadening the
options of interpretation, but one may never say that a given system, be
it the most precious for us, takes precedence over other systems and has
a superior right of interpretative inspiration. As Prof. J. Weisman notes in
his "Basic Concepts in the Law of Property – a Critical Survey" (1981)
11 Mishpatim 41, 61:
As long as we preserve the rule that the interpreter who delves into
the recesses of comparative law does so not in obeisance to the sources
he examines but critically and with the freedom to adopt or reject, as
he finds proper, no great benefit attaches, in our mind, to prescribing
an order of preference among the various systems that may help him.
In my opinion, not only is there no benefit in giving priority to Jewish law
but to do so conflicts with the very task of interpretation. I cannot therefore
accept the approach of Elon J. in urging that the term "good faith" in sec.
39 of the Contracts (General Part) Law, 1973, is to be construed according
to its meaning in Jewish law. "Good faith" in the Contracts Law must
be interpreted in the context of that law. And accordingly its meaning
in that law may be different from its meaning in the Sale Law, 1968, or
in the Bills of Exchange Ordinance (New Version). In this way alone,
will we, in our "struggle" for a basic and consistent law, create a legal
system, a legal philosophy and fundamental concepts in accord with the
modern needs of our State. I am not contending that this labour must be
effected ab origine, that we are barred from drawing upon the learning
of past generations. On the contrary, we must erect our own edifice on
the accumulated experience of the past. We cannot begin all things afresh,
and understandably, we must draw inspiration from universal learning
in general and our own Jewish learning in particular. Far be it from
us to close our eyes to the general wealth of culture and law, and even
20
SOLUTION OF LEGAL PROBLEMS AND FILLING OF LACUNAE
more to the treasures of our own cultural civilisation. All I intend to
say is that it is not right in point of form and not desirable in point of
substance to set up Jewish law as the source for interpretation to which the
judge must turn when he meets with difficulties in construing a law. To
do so without express provision in the statute is not consistent with the
nature of interpretation, which is intended to construe words and inform
us about the intent and purpose of a statute from within the statute itself
by reference to other, similar legislation, but which in no wise fits in with
reference to any other outside source, whatever its national or cultural
value.
Landau P.: I have considered the argument of counsel for the petitioner in
this further hearing and I have not been persuaded that I should depart from
my concurrence in the opinion of my learned friend Barak J. in the appeal.
I also adhere to the opinion of the learned Deputy President.
In answer to the criticism of Mr. Scherschewski in paragraph 11 of his
summation, I would observe that in my description of the facts in my
judgment in the appeal I did not overlook the findings of the District
Court nor did I intend controverting those facts.
As to the differences that have emerged among my learned friends, on
the one side the Deputy President and Barak J. and on the other Elon
J. regarding the mode of interpreting the Israeli law dealt with here, I
find myself compelled to add some words of my own, although my view
remains, as it was in the appeal around which this further hearing revolves,
that in the circumstances of the case as I see them the debate is theoretical
and not pertinent to the matter at hand. But so that my silence shall
not be deemed "consent", I will say about this weighty subject that in
my opinion no hard and fast rule can be laid down, nor is a principle
of interpretation to be adopted that we must resort primarily to the
Jewish law sources in order to dispel the doubt arising over the correct
meaning of Israeli legislation. The very idea that the interpreter must
refer specifically to this source and not to any other in order to obtain
inspiration, I see as self-contradictory, whether this obligation is absolute
or whether it is only obligatory in the first instance. In the Foundations
of Law Act the legislature expressed its opinion as to the tie to Jewish
law: it avoided mentioning that law by name and instead selected the
concept, thus far undefined in point of law, of "Israel's heritage" to which
we must give real content by interpretation – and that will not be easy.
The legislature has also directed that only when no answer is to be found
in statute law, case law or analogy, that is, when a lacuna exists in the
written law, as Elon J. well explained, are we to proceed as prescribed.
That implies that when no lacuna exists – and that is the case before us
21
PART ONE: JEWISH LAW IN THE STATE OF ISRAEL
– the legislature did not wish to fetter us in the labour of interpretation,
not even by resort to Israel's heritage, which here possesses no firm basis
in written law.
In my article "Law and Discretion in the Legal Process" I spoke of the
desired synthesis, as yet not achieved, between Jewish law as a treasure
of our national culture and the requirements of our modern society.
I do not think that this synthesis will be achieved by introducing the
requirements of our society into the fixed frame of the Jewish legal system,
which in its basic approach is a system which claims full and unreserved
recognition. Let us enrich our legal thinking from the abundant sources
of Jewish law, which embodies the life wisdom of our forbears, in a spirit
of awesome respect, but let us retain our freedom of choice in accordance
with modern requirements, without laying down any order of priority of
the sources of our inspiration and without placing the "burden of proof'
upon the interpreter to demonstrate in every case why he is not prepared
to have recourse to Jewish law for interpreting one or another matter.
To my mind the present case makes that manifest – though not necessarily
along the lines that commend themselves to my learned friend. I have already
observed in my judgment in the appeal that we cannot in this case draw
inspiration or obtain guidance for the purpose of our interpretation of
an original Israeli legislative act, since the basic assumptions of Jewish
law are different from the aims of the Israeli legislature. For example, the
approach of putting the emphasis on factual presumptions according to
the casuist style to evidence the right of ownership of the money changer
or of the owner of guarded premises, is one from which our legislation has
distanced itself.
F.H. 40/ 80
KOENIG v. COHEN
(1982) 36(3) P./J. 701, 725-726, 742-743
The question here was whether notes written by a person before committing suicide.
which did not contain any date or signature, could be treated as her will, or whether
such omissions were a "defect" under sec. 25 of the Succession lAw, 1965.
Barak J.: My learned friend Elon J. observes that in view of the provisions
of the Foundations of Law Act of 1980 we are directed to turn to
Jewish law for construing sec. 23 of the Succession Law. In the light
of my own basic approach, I wish to avoid any consideration of this
22
SOLUTION OF LEGAL PROBLEMS AND FILLING OF LACUNAE
subject. It is sufficient for me to refer to what I said in F. H. I 3 / 80
Hendeles v. Kupat Am Bank Ltd., (1981) 35(2) P.D. 785 at 787, to the
effect that the Foundations of Law enactment is concerned with filling
gaps in a law, i.e., to create new law where the existing law is silent
and that silence does not involve any negative regulation. Here, however,
we are concerned with the interpretation of a legal norm, i.e., the limits
of a provision which supplies an answer to a question that has arisen,
and therefore the Foundations of Law Act does not apply. As regards
the construction of statutory provisions in the light of Jewish law from
which it has been taken, it is sufficient for me to repeat that the Israeli
legislature gleaned a concept, not a legal rule, from Jewish law. The
concept was first turned into law by the Israeli legislature, which did
not absorb Jewish law. It is not, therefore, necessary to find a provision
in Israeli law that negates or is irreconcilable with Jewish law in order
that the latter not apply. Jewish law does not apply because it was not
adopted. Nevertheless it is proper and desirable for Jewish law, under
the inspiration of which the statutory provision was enacted, to form a
source for interpretative guidance, to broaden horizons and extend the
field of vision of the commentators and give them perspective and thereby
add further depth to creative interpretation. However, the decision between
the various possibilities rests with us, without any external legal fetters
and without any primacy being given to some other system, as dear to
us as it may be.
Elon J.: We take it for granted that one of the basic rules of interpretation
is that the legislature does not waste words and that some content must be
given to its directions, especially when an entirely novel law is involved,
and more so when the law is a basic one occupying a foremost place in
the legal system of the State. If even with regard to the present matter,
where it is clear that the legislature adopted the idea of the death-bed
will from the Jewish legal system – and there is nothing in the terms
of the Law that negates the consequences of this idea – there is still
nothing in the Foundations of Law Act to accord to the Jewish legal
system any status beyond that of being an "inspiration" like any other
legal system, if that is the situation, what is the purpose of sec. 2, which
is not only central to the Law but contains its "positive" commandment,
and what does it add? Even before this Law became part of the Israeli legal
system, the court was at liberty to engage in the worthy task of employing
Jewish law "to broaden horizons and extend the field of vision of the
commentators". What new thing has been generated with the adoption
of the Law called the Foundations of Law Act? Should it be said that
the day of Jewish law will come in the event of a lacuna, then according
23
PART ONE: JEWISH LAW IN THE STATE OF ISRAEL
to the interpretation of my learned friend, in Hendeles v. Kupat Am Bank
Ltd. et al., of the notion of lacuna and of what it does not embrace, I
would like to know when and how a lacuna can possibly be found that
has no answer "in statutory provision, decided law or by way of analogy".
Is it indeed possible to construe a law so that the directions of the legislature
are devoid of all legal meaning. How many debates did the Knesset and
lawyers generally have, and how many versions did they draft before
the enactment of this basic Law? And all that, in order only to contend
with the problem of a lacuna that has never existed and that will most likely
never come into existence, and still more likely, if and when it does occur,
that a majority will decide is not a lacuna at all? I wonder!
S. F. 1554/ 84
Av. B
{ 19&7) I P. M. 216, 219-220
The plaintiff sought a declaratory judgment to the effect that his "daughter", born to his
wife, was not his child. In his affidavit, the plaintiff declared that when his daughter was
born, he noticed that she did not resemble him, and only years later did his wife admit
that she had had intercourse with another man. Apart from the plaintiff's request that
all parties concerned undergo blood tests and tissue-typing, he had no real evidence
to support his claim. The wife admitted to the truth of the plaintiff's assertions.
Matza J.: The substantive reason for dismissing the wife's admission stems
from the well-known presumptions of Jewish law, according to which
parents may not stigmatise their children with bastardy: these presumptions
are that the wife mostly has intercourse with her husband [so that any child
is likely to be his], and that the person commonly recognised as the child's
father is held to be the father (see B.Z. Schereschewsky, Family Law 457464). These presumptions, it should be noted, constitute part of substantive
Jewish law; they draw their force and vitality from worldly wisdom and
experience, and aid in the application of good and wise principles of
enlightened juridical policy. In practice, these presumptions may not be
refuted or contradicted (at least in most cases), and they may therefore be
regarded as absolute presumptions, based in law.
Formerly… reliance on these presumptions of Jewish law in this context
was not without difficulties, but lately… such reliance has become possible.
This development merits a few words.
It was decided at the time that matters of paternity are not included in
24
SOLUTION OF LEGAL PROBLEMS AND FILLING OF LACUNAE
matters of personal status within the meaning of art. 51 of the Palestine
Order in Council, 1922 (see H. C. 283/72 Boaron v. Rabbinical Court (1972)
26(2) P.D. 727; C.A. 620/74 Mor v. A (1976) 30(1) P.D. 218 at 220).
Inasmuch as these decisions drew criticism… they limited the possibility
of resorting to the personal status law of the parties in paternity cases,
according to art. 47 of the said Order in Council. An interesting attempt
to distinguish these precedents in such a way as to allow for recourse to the
presumptions of Jewish law, in a case similar to that before us, was made
by Sheinbaurn J. in S.F. (T.A.) 58/71 Melamed v. Melamed 1974(1)
P.M. 251, 256. He expressed the opinion that even if the determination
of paternity was not a matter of personal status, nevertheless, a denial
of paternity (by the presumed father) which arises in relation to a child
born to a married woman, falls within the ambit of matters of personal
status because of the question of legitimacy of the child which it involves.
Recently, Sheinbaum J. added a new, weighty argument to his said decision,
which I, humbly, view as a breakthrough for attempts to rely upon the
presumptions of Jewish law. He said as follows:
Now, after passage of the Foundations of Law Act, 1980, it may be
determined that if art. 51 cannot be regarded as including matters of
paternity in the context of a married woman, there is a lacuna in
Israeli law: no answer can be found ( on the assumption that it is not
a matter of personal status) to the question of the law that apparently
applies to the child of a married woman, neither in legislation, nor
in case law, nor by way of analogy. For this reason, recourse must
be had to the principles of freedom, justice, equity and peace of the
heritage of Israel.
2. The Desirability of Examining Problems in the Light of Jewish Law
See: MAOR-MIZRAHI v. ATTORNEY-GENERAL, Part 6, Penal Law, p. 436.
3. Reference to Jewish Law for Interpretation of Independent Statutes
See:
ZIKIT… LTO. v. SERIGEI ELDIT LTD.,
Part 8, Obligations, p.
25
663.
PART ONE: JEWISH LAW IN THE STATE OF ISRAEL
C.A. 604/ 77
MUBERMAN v. SEGAL
(1978) 32(3) P.D. 85, 97
The appellant, the grandson and administrator of the estate of a deceased person, and
the respondent, a beneficiary under the will of the deceased, entered into an agreement
whereby the respondenr waived her rights under the will in consideration of a fixed
monthly payment. The issue between the parties was the validity and interpretation of
the agreement.
Elon J.: I find authority for that in the rules relating to estate administration
in Jewish law; and it is as well that the Succession Law, whose independence
from art. 46 of the Palestine Order in Council is declared in sec. 150 thereof,
should be primarily construed in accordance with the Jewish law sources
when nothing to the contrary appears in the Law itself. It was attested
to by the authors of the Bill that the Law is based inter a/ia "on Jewish
law, one of the treasures of our national culture which we must revive
and continue …. We have regarded Jewish law as a principal source but
not a binding or the only source …. As for the substance of the rules, we
have endeavoured to base our proposal, as far as possible, on Jewish law"
(Introduction to the Bill of the Succession Law, Ministry of Justice, July
1952, pp. 6-7).
26
Chapter Two
INTERPRETATION
1. Basic Concepts and Moral and Cultural Principles
C.A. 337/ 62
REISENFELD v. JACOBSON et al.
(1963) 17 P.D. 1009, 1025-1026
The appellant and respondent met each other in 1957, and shortly afterwards decided
that as soon as the appellant divorced his wife, they would get married…. The two
parties were sincere in their intention to marry, and when, in 1958, the appellant
decided to buy an apartment and register ir in the name of the respondent, they both
thought that this apartment would be their common home after the appellant obtained
his divorce. The apartment was acquired with the appellant's money, and the leasehold
was registered in the respondent's name…. The parties lived together as man and wife
for about three months, even though the appellant was still married and living in
his former apartment. In August, 1958, the respondent locked the appellant out of the
apartment, and the appellant subsequently sued for a declaratory judgment to the effect
that the apartment belonged to him; he also applied for orders that the apartment
be registered in his name, and that rhe respondent vacate the premises, re/urn the
furniture, etc….. The respondent had never thought of the apartment as belonging to
her, and viewed its registration in her name as an expression of trust and esteem
on the part of the appellant. She even said, both be/ore and after the registration,
when the parties realized that they would not get married, that she would return
the apartment to the appellant if the marriage did not occur. Her defence was that
the appellant's case shouldfail in that it was based on an agreement which was contrary
to public morality and order, as per sec. 64(1) of the Ottoman Civil Procedure Law.
The problem lay, as it were, in that the parties had contracted for immediate sexual
relations and future marriage when the marriage with the first wife still retained full
legal force. The lower court viewed the agreement between the parties as an illegal
contract.
Witkon J.: Indeed, the question arises whether the agreement that served
as the basis for registering the apartment in the name of the respondent
27
PART ONE: JEWISH LAW IN THE STATE OF ISRAEL
constituted an immoral contract contrary to public order in that one of the
parties was, at the time the agreement was made, a married man. To this
question, my colleague, Silberg J., answered in the affirmative, whereas
my colleague, Kahan J., answered in the negative, and both… brought
sources and evidence from Jewish law. I have no part in this halakhic
dispute, not only because I am hesitant to tackle that lofty subject, but
because I cannot believe that public opinion is reflected in laws and
rulings dealing with conditional marriage, levirate marriage and conversion.
Our public will not, for the most part, find inspiration for solving the
current problem in these laws. If the man in the street, the reasonable
man, or enlightened public opinion, is asked for an opinion about the
"morality" of the said contract, answers and opinions will be forthcoming,
and I should not be surprised if these are contradictory…. Obviously, the
world view of the person being questioned, his education, temperament
and qualities, are all reflected in these answers and opinions, as well as
his whole mental and emotional make-up. And the Jewish law concepts
of kiddushin (betrothal) or conditional marriage are not the same as the
promise to marry, with which we are concerned here. A person who
promises to marry a woman, in the modern sense of the word, does not
"betroth" her, and the consequences of such a promise and of its breach
are different from those attaching to kiddushin. Therefore, no matter what
the source of inspiration of the average Israeli in creating his view on the
question before us, it seems to me that the answer is not to be found in
the law cited by my colleague, Kahan J.
C.A. 461 / 62
ZIM ISRAEL NAVIGATION CO. LTD. et al. v. MAZIAR
(1963) 17 P.D. 1319, 1333-1334
The respondent fell sick on a voyage from France on one of the appellant's boats,
apparently from food poisoning, and suffered from a stomach infection for three
months after arriving in Israel. In an action against the company, the District Court
applied the rule of res ipsa loquitur and held the ship's chef directly liable and the
company vicariously liable. The appellants in defence relied inter alia on an exemption
clause in the passenger ticket, relieving them from liability. The District Court, however,
held that the exemption clause was void in that it was contrary to public policy.
Silberg J.: Judaism has always extolled and glorified the great value of
human life. The Jewish religion is not a philosophical system of opinions
28
INTERPRETATION
and beliefs but a living religion, a way of and for life: " … which if a
man do he shall live by them" (Lev. 18:5), "live by them and not die
by them" (Yoma 85b). The verses are innumerable which emphasize the
causal nexus between the Torah and life: "Keep my commandments and
live" (Prov. 4:4); "He is just, he shall surely live" (Ezra 18:9); "Who is the
man that desireth life" (Ps. 34:13) and so on.
Clearly, Judaism too does not regard life as the supreme value. There are
purposes which go beyond it and ideals which are more elevated for the sake
of which we should, indeed must, sacrifice life. Myriads of Jews have given
their lives in sanctification of the Holy Name in all places and at all
times. But in the framework of ordered social life and according to the
priorities of the Jewish religion, life is the most sanctified of possessions,
the protection of which overrules any other sacred value, including without
any doubt the sanctity of contracts. "There is nothing that stands before
the saving of life except only idolatry, incest and bloodshed" (Ketubot 19a);
"for (the Sabbath) is holy unto you-it is committed to your hands, not
you to its hands" (Yoma 85b).
There is nothing in Jewish ethics which is more abominated than the
taking of life. King David was punished for that reason: "But God said
unto me 'Thou shalt not build a house for My name, because thou art
a man of war and hast shed blood' " (I Chron. 28:3). "A Sanhedrin,
although properly constituted, that effects an execution once in seventy
years is branded a destructive tribunal" (Makot 7a). The prophetic visions
of Isaiah and Micah of lasting universal peace – "Nation shall not lift
up sword against nation, neither shall they learn war any more" (ls. 2:4
and Mic. 4:3) – recoil with aversion from the shedding of blood.
It is not easy to mint from these lofty concepts the coinage of actual
law, but when the decisive question in arriving at some legal conclusion is
a question of philosophical outlook – what is "good" and what is "bad",
what promotes the public welfare and what impairs it – we may and
indeed must draw precisely upon our ancient sources, for these alone truly
reflect the basic outlook of the Jewish people.
The voice that calls from the depths of these sources tells us not to
trade in human life, not to act lightly in safeguarding it, for life is of
the utmost value and is not ours to do with as we please. The sanctity
of contracts, or the sanctity of the principle of freedom of contract, has
its proper place, but the sanctity of life is far greater. To paraphrase
Isaiah 54:17, no weapon that is fashioned against it shall succeed and every
tongue that shall arise against it in judgment you shall condemn.
The conclusion to be drawn from the foregoing with regard to the
present case is that an exemption clause in the passenger ticket bought
by the respondent from the appellant company is null and void, as being
29
PART ONE: JEWISH LAW IN THE STATE OF ISRAEL
contrary to public policy… .It is superfluous to stress that injury to life and
injury to health are the same in contemplation of the concepts that operate
in this context.
I have not overlooked the rule in Jewish law that "if one said 'Put out my
eye, cut off my hand, break my leg'… on the understanding that the other
would be exempt, the latter is nevertheless liable" (Baba Kamma 92a),
but I have not invoked it for the purpose of this judgment because, in
view of the reason given by Maimonides in M. T. Hovel uMazik 5: 11 and
by Hoshen Mishpat 421: 12, I have grave doubts whether it reflects the
idea of damage to the public good.
C.A. 4/66
PERETZ v. HELMUT
( 1966) 20(4) P.D. 337, 351-352
The respondent, a married man, represented himself to the appellant, a married woman,
as single, and promised to marry her. On the basis of this promise, she left her husband
and went to live in an apartment purchased by the respondent. The apartment was
registered in both their names in equal shares. A first mortgage was registered on the
whole property, and a second mortgage was payable within one month after demand.
Shortly after the purchase, the parties argued, and they separated. The respondent tried
to realize the mortgage, but the appellant objected, and applied/or a stay of execution,
based on the fact that she had put in a claim to have the mortgage declared void on
various grounds, and in particular, on grounds of illegality, i.e. that cohabitation,
and a promise to cohabit when the two parties are married to others, are contrary to
morality.
Kister J.: In Israel, there has as yet been no decision laying down clear
rules regarding the question of how the courts should decide what is moral
and what is immoral. In C.A. 337/62 Reisenfeld v. Jacobson (1963) 17
P.D. 1009, at 1026, Witkon J. suggested that the Court must give expression
and force to what it deems to "represent public opinion, the intention being
to such public opinion which is enlightened and progressive." Unfortunately,
I cannot agree with this approach, which deviates from that of the English
law which we are apparently bound to follow, and it seems that it is difficult
to find a reason why, in the present case, there should be any deviation.
Furthermore, it cannot be said that there is unanimity on the question
of what is progressive and what is reactionary. The opinion of socialists
differs from that of liberals, and secularists sometimes see themselves as
progressive for the sole reason that they denigrate the Commandments,
and amongst the various "progressives" themselves, opinions differ.
30
INTERPRETATION
With regard to the value of enlightenment, I do not think that anyone
will deny that it contains positive elements and that it has conferred and
continues to confer benefits on mankind. At the same time, I do not
believe that such great importance should be attached to it to the extent
that the court will be bound, in determining moral norms, solely by the
views of the enlightened and progressive sectors of the public, without
considering the religious and traditional values and the healthy sense of
morality held by other sectors.
Is it possible today to insist that it is exclusively a person's education
that can protect and immunise him against all negative behaviour and
influences? In the past, there were indeed people who believed in the magical
properties of enlightenment to prevent all crime and other wrongdoing in
the world. In our times, however, during the Holocaust period, when even
mass murder was licensed by the leaders of the State considered to be
amongst the most enlightened and progressive, many of the intelligentsia
of that State and others were caught up by those perverted and despicable
notions which need no reminder; and even though one would think that
the sense of even a primitive person living in an evil country would oblige
him to regard these acts as despicable crimes, in the eyes of the intelligentsia
of that period, the "path looked straight, in accordance with human nature,
and they dressed up murder and theft so that they would not recognize
them" (Divrei Hayim of Zanz, in the book of Moadim), and they drew the
masses along with them.
Indeed, the Holocaust was something the like of which has never before
occurred and should not be expected to recur – certainly not to our
people and our country. However, a fact which must never be forgotten or
ignored is that enlightenment did not succeed in saving masses of people,
not merely from a simple mistake, but from the commission of the worst
crimes in the history of mankind: if enlightenment was no protection against
such deeds, then clearly, it cannot be relied upon to prevent error, or
worthless, unfounded or arbitrary opinions. Apparently, the intelligentsia
possesses a critical sense with respect to harmful views, but there is no
reason for the court to rely solely on the opinion of the "enlightened"
ones, amongst whom – as we have said – there is no unanimity.
What emerges from the above is that the court, in its capacity as protector
of values, must itself decide, after careful scrutiny and consideration,
whether in the matter before it the particular conduct is contrary to morality
and public order. In Israel, there are no juries, but even in England, where
the institution of juries does exist, the jurors are required to refrain from
expressing their superficial impressions on this question; rather, they must
consider the question very carefully after they have had the opportunity
of hearing the attorneys of the parties and the directions of the judge.
31
PART ONE: JEWISH LAW IN THE STATE OF ISRAEL
Professional judges are certainly no less capable than juries of considering
and deciding whether the conduct in question is in keeping with public
morality and order. Here, it should be noted that when the court sets
itself a moral norm according to which it assesses conduct in matters in
which, from the perspective of the law, it is important to decide whether
such conduct is moral or decent, the mere fact that the conduct of many
people does not conform to that norm will not move the court to deviate
from what it regards as a moral norm to which the whole population
should adhere.
See: ROITMAN v. UNITED MIZRAHI BANK LTD.et al, Part 7, Torts, p. 569.
See: YEKUTIEL v. BERGMAN, Part 9, Property- Physical and Intellectual, p. 71 L
C.A. 566/77
DICKER v. MOCH
et al.
(1980) 32(2) P. D. 141. !48-151
This appeal concerns the validity of a restrictive trade covenant which was claimed to
be contrary to public policy.
Y. Kahan J.: I have read with great interest the observations of my learned
colleague Elon J. on the crystallisation of interpretation of the concept of
public policy in the Contracts Law by giving primacy of place to the
Jewish law tradition, its principles and provisions. The proposal to replace
dependence upon English law with dependence on Jewish law has been
raised more than once in the past.. ..It seems to me that the observations
of Elon J. have great persuasive force and that it is proper to follow
the course he suggests in injecting real content into the inchoate and
undefinable idea of "public policy", and this without denying the possibility
of being assisted when appropriate by the precedents of other legal systems
as well…
Asher J.: After I had written my foregoing comment, I received the
opinion of my learned colleague, Elon J., which negates giving a generalised
theoretical answer to the question of what is public policy for the purpose
of sec. 30 of the Contracts (General Part) Law, 1973, preferring instead
32
INTERPRETATION
a pragmatic determination according to the special circumstances of each
case. I agree, with all great respect, with that cautious approach, but
I do not, however, think that when sitting in judgment on any particular
matter, the court must draw inspiration from one source alone, whatever
its national importance and its moral force. What is public policy should be
determined in each case with regard to the cultural, economic and ideological
development of an enlightened society. The judge must remember that what
seemed the pinnacle of development in times past need not necessarily be
in keeping with the philosophical outlook of 1978. In my view, a contract
is not to be rescinded for reasons of public policy except in a clear instance
when the public harm does not lie in any real doubt and the decision is
not based on some idiosyncrasy of a number of judges (per Lord Atkin
in Fender v. St. John Mildmay [1938] A.C. l, 12).
Elon J.: We are required to instill real content into the concept "public
policy" that appears in sec. 30 of the Law, which provides that "a contract
the making, contents or object of which is or are illegal, immoral or
contrary to public policy is void."
Attempts to clarify this term figure not a little in the judgments of this
Court. What is novel in the case before us is that since the contract in
question was made after the effective date of the Law, the provisions of
the Law are applicable. This law, like a number of other fundamental
laws adopted by the Knesset in recent years, is endowed with sec. 63, the
title of which – "Autonomy of Law" – attests to its import: "Article 46
of the Palestine Order in Council, 1922-47 shall not apply to matters dealt
with by this Law." Because of that, as stated in the judgment of my learned
friend Kahan J.:
We no longer graze in foreign fields … and having regard to the
"autonomy" of the Contracts Law of 1973, we must prescribe rules in
respect of the types of contracts that are in conflict with public policy,
bearing in mind the specific conditions existing in Israel, both on the
philosophic-ideological level and on the economic level.
Needless to say, and it is in fact well-known, that to prescribe such rules
is a very difficult task, not merely because, in the words of an old English
saying, the concept is an unruly horse whose rider does not know whither
it will lead him, but because every definition, even when it seems clear
and balanced, bears within it a grain of doubt and uncertainty. Take
for example the remarks of Shamgar J. in C.A. 625/76 A. v. B. (1977)
31(3) P.D. 85, cited at length by Y. Kahan J.:
Moreover, it is obvious that perceptions such as these [that is, perceptions
33
PART ONE: JEWISH LAW lN THE STATE OF ISRAEL
of the world and concepts of life singular to a given social or national
fabric: M.E.] change over time and always express the beliefs and
opinions of the period.
The question then arises, what are the beliefs and opinions of any particular
period? It is very, very difficult to provide an objective definition of these
beliefs and opinions, and it would seem that the inner life of those who
provide the definition exerts a not inconsiderable influence. Further, when
the court comes to construe "public policy", it is even more difficult, to
decide whether the term is to be taken to mean what the public does
or desires to do, or whether the task of the court is to act as a pioneer
and, after meticulous study and consideration, to determine on its own
initiative the contents of public policy (see for example the remarks of
Kister J. in Peretz v. Helmut (1966) 20(4) P.D. 337). It therefore seems that
"public policy" will be defined, in view of the "autonomy" of the Law, in
piece-meal fashion, from the particular to the general, and from the general
to the particular, depending on the individual case and circumstances.
In giving form to the concept of "public policy", which we are commanded
by sec. 63 of the Law not to construe by grazing in foreign fields, we
must assign a leading role to the Jewish law tradition, its principles
and provisions. That by itself is nothing new, since it has already been
done by the judges of this Court….Thus for instance Silberg J., in the
well-known case of z;m v. Maziar (see above) regarding the validity of
an exemption clause, said:
Should we then be asked how we can legitimize the forming of our
own outlook on a rule which has its source in Turkish legislation [the
Ottoman Law of Civil Procedure] the answer is that whilst the rule that a
contract can be set aside for being contrary to public policy is derived
from sec. 64(1) of [the Ottoman law], what public policy is must be
gathered from our own ethical and cultural perceptions since no other
source exists for that.
This was also the ruling of Cohn J. in Yekutiel v. Bergman (1975) 29(2)
P.D. 757, at 764 regarding the validity of an obligation by the testator
whilst still alive to sell and transfer property that was the object of a
testamentary provision. The District Court thought that the obligation
was contrary to public policy under the Ottoman Jaw but that approach
was rejected because "the tradition that has proved itself and creates a
healthy fundamental view among the population is for us primarily the
Jewish law tradition and according to Jewish law such an obligation is
fully valid." Since this ruling is of the utmost importance for our present
purpose, let me continue citing from Cohn J.:
34
INTERPRETATION
From the viewpoint of "public policy", under Jewish law every statutory
provision exempting a party from performance of his obligations is only
an edict of the legislature and whoever wishes the world to be properly
ordered will abide by his obligations even beyond the strict letter of the
law; no breach of promise in civil matters can be in keeping with public
policy …. Public policy extends the freedom of contract and does not
restrict it, safeguards the fulfilment of promises and obligations and
does not open the door to their breach. Before a court will set aside
a contract on grounds of public policy, a sense of justice and equity and
social ethics must revolt against its performance.
Kister J. concurred in his view of Cohn J. as to how the concept of
public policy is to be understood (ibid. 769; see also Roitman v. Mizrahi
Bank {1975) 29(2) P.D. 57, at 79, where Cohn J. reiterates that public
policy is to be construed according to the principles and provisions of
Jewish law).
If indeed the "public policy" that derives from Ottoman law is so to be
construed, a fortiori it must be so construed when it is the "offspring"
of the Contracts Law enacted by the Israeli Knesset. To construe the
concept in accordance with the foundations and principles of Jewish law
will substantively give effect to the aim of autarky of the Law as stipulated
in sec. 63.
C.A. 148/77
ROTH et al. v. YESHUFEH (CONSTRUCTION) LTD.
(1979) 33(1) P.D. 617, 631, 633
A contract for the sale of an apartment contained an exemption clause whereby
occupation of the apartment by the purchaser would be final and conclusive evidence
that the vendor had fulfilled all its obligations under the contract. A claim/or damages
by the appellants (purchasers) for breach of contract was dismissed in limine. Hence
the appeal.
Elon J.: In construing in Israeli legislation so basic and universal a notion as
good faith (which forms an intrinsic part of the moral and judicial thinking
of all civilized legal systems), we must first enquire into its meaning in the
light of the principles of Jewish law and the Jewish heritage. Although
such a universal principle is to be found in the legal systems of our time,
its roots are embedded in the fundamental values bequeathed to mankind
by the ancient systems of law. Who knows how the spirit of the law is
35
PART ONE: JEWISH LAW IN THE STATE OF ISRAEL
passed on until it permeates the consciousness of generations of men? If
that is true for the legal systems of other people, it is certainly true for
the law of the State of Israel, the substructure of whose basic principles
we are directed to find primarily in our ancient heritage, the light of
which has not been dimmed nor its vigour diminished. As this Court
held, per Silberg J., with regard to public policy, which is also a universal
principle: "It will be construed by us from the fundamental viewpoint very
deeply rooted in the Jewish consciousness .. .from our cultural and moral
outlook" (Zim v. Maziar, (1963) 17 P.D. 1319, at 1332). We are directed
to use the same yardstick in interpreting the universal principle of good
faith. The observations of Cohn J. in relation to another basic concept,
the principle of doing justice, are very apposite here:
When in order to do justice, we deem it proper to ignore English or
American law, I have accustomed myself to investigate first whether
there is anything in the law of the Torah upon which to base ourselves.
Not that English precedent automatically binds us, in the absence of
precedent in Jewish law, nor that we are required to decide in accordance
with Jewish civil law; but that the justice that we are obliged and
endeavour to do will be more certain and more solidly grounded if
it finds support in our legal tradition and in the righteous wisdom
of our forebears … (Ben Shahar v. Mahalev, (1974) 28(2) P.D. 89, at 98).
These observations are even more pertinent in the present matter. The good
faith principle of sec. 39 has its source in original Israeli legislation which
prescribes the autonomy of the Law and the manner of its interpretation
and application (i.e. Sec. 63 of the Contracts Law of 1973). The very
essence of the expression "good faith" [in Hebrew] is an original Jewish
concept, of which more later. Hence, to construe it we must turn in the first
place to Jewish law from which it was derived and in which its substance
and significance is imbedded.
I should make one further observation at this point. Far be it from
me to say that we may not enquire into and learn from the wisdom and
decisions of the legal philosophers and judges of other legal systems. Such
enquiry serves well to broaden our horizons and render more profound our
knowledge. Our Sages, in their broad and open minded attitudes, acted
similarly in ancient times. May I quote what I have written elsewhere in
this connection:
The Sages of the halakhah knew the law prevailing in the general courts
and at times even proposed that a foreign legal practice of which they
approved should be adopted. Sometimes they recognised the special
social effectiveness of foreign law and did not refrain from praising
36
INTERPRETATION
a gentile judicial system when it pursued a course better than that
of the Jews (Jewish Law, Part 1, 49-50).
If that is the position in judicial proceedings conducted almost entirely on
the basis of Jewish law, it is certainly so when we venture to construe the
laws of the State of Israel of our own days, the force of which derives from
the sovereign power of the Knesset to legislate as it deems proper, and when
it is clear that an enactment has been passed after study of different legal
systems in the context of the social and economic requirements of our time.
For this reason it is certain that an enactment of the Knesset – primarily
one accompanied by a provision as to its autonomy and breaking the link
with English law under art. 46 of the Palestine Order in Council – must
be interpreted, in the words of Silberg J., (see Ratner v. Pia/um Ltd. (1958)
12(2) P.D. 1465, 1471 and Finkelstein et al. v. Finkelstein et al. (1968) 22(1)
P.D. 618) ''in itself and from its content". If, however, such a course does
not yield a satisfactory answer, we must have resort to the principles of
Jewish law as a primary source for finding a solution to the problem
facing us.
All this is attested by the authors of the 1952 Bill of the Succession
Law, the first of a series of laws dealing with an entire branch of civil
law…. In the Introduction, they emphasize that although the Bill is only "a
section of a much wider legislative act, we regard this Law as a plan for
the laws that will follow it. The guidelines on which this Law is based
are also those on which other civil laws are to be based." What are these
guidelines?
Our purpose was to propose a Law that can be interpreted from within
itself by studying its provisions and relying on its general objectives …
Our proposal is based on (i) the legal and factual situation now existing in this country;
(ii) Jewish law, one of the treasures of our national culture which it is
for us to revive and perpetuate;
(iii) the laws of other countries in the West and in the East, whence
our people has been gathered to be fused into one community;
With regard to existing law, we felt ourselves free to adopt or reject
it…
We have regarded Jewish law as the principal source but not as an
obligatory or the sole source…
As for the laws of other nations, we think that both the practical
37
PART ONE: JEWISH LAW IN THE STATE OF ISRAEL
experience and the scientific foundations they incorporate should serve
us as an auxiliary source to enlighten and guide us.
That is exactly what I have said. This is the hierarchy for interpreting
independent Israeli legislation in general and its basic principles – justice,
public policy, good faith – in particular.
Should it be urged, for prosaic and purely practical reasons, that access
to the Jewish law sources is not very easy and convenient, I would say first
"it is not in heaven … neither is it beyond the sea…. The word is very
nigh unto thee, in thy mouth and in thy heart that thou mayest do it"
(Deut. 30:12-14). It is the Torah and requires study. Authors of books
and articles, alive to Jewish law and illuminating its paths, are increasing
in number. Secondly, is recourse to the decisions of German and other
European courts – in which, it is contended, sec. 39 was born – any
easier?
See: HENDELES v. KUPAT AM BANK LTD. et al. above, p. 10.
2. Statutory Interpretations
M. 89/51
MITOVA LTD. v. KAZAM
(1952) 6 P.D. 4, 6-7, IJ-12, 16
Silberg J.: The outcome of the present application for leave to appeal
– which by consent of the parties came to be treated as the appeal
itself- depends upon and will be decided by the answer to the question of
whether a debt due to an absentee person is "property" within the meaning
of the Absentees' Property Law, 1950. Doubt arises over the application
of the definition in sec. l(a) of the Law …
It appears to me that the appeal should be accepted. Counsel for the
appellant very ably analyzed several sections of the Law, from which it
emerges indirectly that the intention of the legislature was to include a debt
under "property". In my opinion, however, all this evidence is unnecessary
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and the labour was in vain. The answer to the question is to be sought and
found in the very definition provided in subsec. (a), and the learned judge
erred in thinking that "the words to which attention is to be paid in this
instance are 'moneys' and 'a right in property'." The learned judge did not
bother to read to the end of the sentence and he overlooked the final words.
The whole subsection reads as follows: " 'Property' includes immovable
and movable property, monies, a vested and contingent right in property,
goodwill and any right in a body of persons or in its management."
The terms "vested" and "contingent" [in Hebrew] in their distinctive
senses are not part of common speech. They are legal terms, manifestly
borrowed by the legislature from the sources of Jewish law, giving a
patent Hebrew form to the legal substance of the parallel terms "choses in
possession" and "choses in action", as will be explained later.
The first legal source for the said Hebrew terms is the Mishnah in several
places, among them the Mishnah in Bekhorot 5 lb:
The firstborn takes a double share of the father's estate but … does not take
(a double share of) the improvement (of the estate) nor of what will fall
due (to the estate) as he does of what is held in possession.
The reason as the Gemara explains at 52a, is because Scripture says "by
giving him a double portion of all that he hath" (Deut. 21:17), that is,
what the father happened to have in his lifetime. Again in Baba Batra 125b
we read:
R. Papa said: … the firstborn does not receive a double portion of
a prospective (contingent) (part of the estate) as of that which is
in possession (vested) nor does he receive a double portion in a
loan (owing to the father) whether (the heirs) levied it in land or in
money.
Rashbam ad loc. explains that the last rule arises from the fact that "neither
the land nor the money was left to them by their father, but was something
contingent." Maimonides, M. T. Nahalot 3:l, puts it as follows:
The heir does not take a double portion in property that may prospectively
fall in after the death of his father but only in property actually possessed
by the father, that had already fallen into his domain…
Cheshin J.: I concur with my learned friend Silberg J. in granting the
appeal and for the reasons he has given. His argument is well-ordered and
does not require affirmative support. I do not intend to add anything to
his observations but rather, with all respect, to restrict them, not on the
merits of the case but as regards general principle.
39
PART ONE: JEWISH LAW IN THE STATE OF ISRAEL
The path Silberg J. followed in seeking a solution to the problem that
has arisen here – an immeasurably honourable path – may serve as
an opening to an important, lengthy and complex chapter in the law
of interpreting original Jewish legislation enacted since the Declaration
of Independence and that which may be enacted in the future by the
legislative arm of the State. As we know, the genesis of every statute is
in the legislature. There it is born, there it receives form and content,
and there it obtains the breath of life and it first sees the light of day.
But at the point where the legislative labour is completed, the work of
interpretation commences. During Mandatory times in this country, that
work did not encounter any particular difficulties, even with regard to
the Jewish judge who read the law in translation and wrote his judgment
in Hebrew. The English language was then predominant and the other
two languages, Hebrew and Arabic, were only auxiliary languages and
the law provided expressly that in the event of any inconsistency between
the English version of an enactment and the Arabic or Hebrew version, the
English version should prevail (sec. 34 of the Interpretation Ordinance of
1945). This provision, in conjunction with the basic principle behind art. 46
of the Palestine Order in Council, opened the door wide for the interpreter
to the rich English jurisprudence from which he could draw exhaustive
legal material regarding the construction of words and phrases which the
legislator employed in the original English version of an enactment, and
likewise the modes and rules of interpretation.
When the State was established, deliverance came to the Hebrew language
as well. The English language was made to yield its dominance and the
Jewish judge was freed from the fetters of translation by which he had
been restrained during the mandatory period. Hebrew became the original
language of all laws, regulations and orders. At this point the legislature
was faced with one serious difficulty … on the one hand, it was not released
– and in the nature of things could not be released over-night – from the
mass of laws left over by the outgoing governmental authority. On the other
hand, the need arose to introduce amendments and changes in the body of
such laws, as well as to enact new laws for the purposes of the reborn State.
The legal thinking of the legislature, of the legal draftsmen and also of those
who interpreted the law continued – as it will continue for a long time
– to nourish itself from English law, whilst the law itself – whether
it was entirely new or an amendment of an existing law – needed an
original Hebrew "attire", i.e. it had to be given expression in an organic
basic Hebrew, and not make do with a variable literal translation of
foreign thought. No wonder, therefore, that in completing the process of
renewing our ancient political life, the aspiration grew to revive also the
forms of original Hebrew idiom. To this end the legislature has turned
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to the treasures of our ancient culture, primarily to the Mishnah and
Talmud and gathered from there the age-old modes of expression in order
to inject into them new concepts. It is like filling an old bottle with new
wine. In the nature of things, however, the form does not always fit
the matter injected. It happens that the legislature, or the legal draftsman,
has mingled unlike things; sometimes the exact form has not been found
and in an emergency what is thought to be the nearest and most appropriate
has been chosen for the task at hand. The interpreters of the law, therefore,
bear the duty to exercise great care when embarking on their task. It would
be a gross error to construe, for example, every term and expression
in our laws according to the context of the Mishnah or Talmud where
it appears, although it is abundantly clear that the term or expression is
taken from that particular source. Thus, we may not construe the terms
"promissory note", "loan", "encumbrance", "partnership", "abandoned"
or "absentee's property" and like legal terms and expressions as they are
construed or defined in Jewish law, although there is no dispute that
they are culled from the ancient treasury of Jewish thought and law. The
vessels have been borrowed from one place, but their contents are original
or taken from another place. I have no doubt that the day will come
when legal scholars will provide us with a legal lexicon to which the
official seal of the legislature will be attached, and this lexicon, or at least
an authorized statute of interpretation of wide proportions that will precede
it, will render the difficult path of the interpreter easier. For the moment,
it seems to me, one must adopt the following rule of construction: whenever
the court is required to interpret a legal term found in any enactment since
the establishment of the State, and the term is also to be found in our
ancient literary sources or is borrowed therefrom, it may address itself
to these sources in order to shed light on its meaning and determine the
concept it embraces. This applies, however, only if after comparing the
two, it is beyond all doubt that the rules emerging from the law and the
ancient source are alike within the framework of the subject at hand or
that the legal concept embedded in the source is broad enough to include
the legal concept to which the legislature has sought to give expression
against a new background by the term it has "borrowed".
Schereschewsky J.: It is unnecessary to go deeply into this question for the
purpose of the present matter since the Law includes in its definition of
"property" in sec. l(a) both vested and contingent property. I have, however,
found it right to make some remarks in consequence of what Cheshin J.
has said in order to show how great is the need to be cautious if we
wish to use the legal ideas of Jewish law for construing expressions that
41
PART ONE: JEWISH LAW IN THE STATE OF ISRAEL
appear in the enactments of the Israeli legislature, which although identical
in form are not identical in content.
H. C. 163/57
LUBIN v. TEL AVIV-JAFFA MUNICIPALITY
(19S8) 12 PD. 1041, 106S
This petition concerned the petitioner's being prevented from selling pork in his butcher
shop.
Silberg J.: The time has arrived to weed our own garden. I have in mind
the unnatural joinder of Israeli legislation and English interpretation. If
the link persists, waves of foreign interpretation may roll in in the future
and sweep away the early growths of our youthful legislation, which is
intent upon fashioning Israeli patterns of life. In my view, when the
Israeli legislature conceives an original idea and does not merely amend
or adapt, in the Hebrew language, ideas that its predecessors conceived
in the tongue of a foreign people, it is our duty to construe the Israeli
enactment from within and by itself and not subject it to interpretations
and meanings that have flowered in other fields. Otherwise, we shall never
achieve independent thinking but shall continue to create here a hybrid
legal plant which possesses a little of everything but nothing at all of its
own.
F.H. IJ / 68
TEL-AVIV MUNICIPALITY v. LUBIN
(19S9) lJ P.D. 118, 135
Silberg J.: Let no one accuse me of a legal anachronism and let no
one cast the aspersion that I interpret modern legislation according to
Tosafot Rid and Ritba. I know very well – to paraphrase the well-known
dictum in Baba Kamma 2b – that one cannot deduce the meaning of
what the Knesset says from scriptural texts. What I have endeavoured
to do is to explain in general terms the meaning of words used by the
secular legislature. This wonderful word "applicability", so rich in content,
has somehow entered fully, in all its aspects into modern Hebrew legal
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terminology and the presumption is that the Israeli legislature knew the
significance thereof.
Cr.A. 282/61, 297/61
YIHYE et al. v. ATTORNEY-GENERAL
(1962) 16 P./J. 633, 635
The appellant was convicted of breaking into a cave and stealing sheep, and was
sentenced to eighteen months' imprisonment. The appeal concerned the question of
whether a cave was a building within the meaning of sec. 297 of the Criminal Code
Ordinance (as amended in /959) under which he had been charged.
Silberg J.: The question facing us is, therefore, what is the meaning of
"building"…. There is however an anterior question: where are we to look
for the meaning of the term, in the stores of the Hebrew language or
in English dictionaries? Sec. 297 is an Israeli enactment adopted by the
Knesset in 1955. I once raised the question whether it is not in order to
construe original Israeli legislation… according to its meaning and sense in
Hebrew (cf. (1956) IO P.D. 1213, 1217; (1952) 6 P.D. 4; (1959) 12 P.D. 1041,
1065). Though the matter may still be doubtful regarding legal expressions,
it is, in my opinion, certain regarding common nouns like "building''.
This simple word, I believe, should be understood according to its sense
in Hebrew. For this reason, I am not prepared to be drawn into a
consideration of the definition of the term in sec. 2 of the Town Planning
Ordinance of 1936 (as amended in 1938) and to infer therefrom-either by
way of analogy as respondent's counsel suggests, or otherwise as appellant's
counsel requested – the significance of "building" appearing in sec. 297 of
the Criminal Code Ordinance.
In Hebrew, "to build" means to combine various substances or parts and
make them one complete thing…. "And they prepared the timber and the
stones to build a house" (I Kings 5:32); the body of a person made up of
his limbs is called "a building" (M. Oholot 2: I).
43
PART ONE: JEWISH LAW IN THE STATE OF ISRAEL
F. H. 6/ 62
IHUD HAMADGIRIM … LTD. v. MAYOR OF TEL AVIV-JAFFA
(1962)
!(,
f.D. 2220. 2222, 2223, 2224, 2225-2226
The appellant claimed that as a non-profit agency it was subject to tax at a lower rate
than that imposed on a marketing business. The District Court held that the appellant
engaged in marketing. In the Supreme Court, opinion was divided and the appellant
requested this Further Hearing.
Silberg J.: My answer to the question here is the answer given by R.
Nahman to R. Hanan bar R. Katina in Hullin 19a: "I know no Reuben,
Simon or Levi. I only know a tradition… "
I have reached the above conclusion after going into the meaning of the
word "marketing" in Hebrew. I did so because I think that an original Israeli
legislator must make his pronouncements in Hebrew and not in "distorted"
language. It is not possible that his Hebrew should only be understandable
by English speakers, more especially when what is involved is not a patently
legal term, the meaning of which is only understood by lawyers, but an
every-day term in common usage. Are we to require the Israeli citizen
to consult a lawyer about the meaning of "table" or "chair" which the
Israeli legislature has employed in one of its original statutes? …
Finally, a short observation on the reasons voiced by my learned friend
Witkon J_ when touching upon the important problem of pouring new
wine into old bottles. The problem is much too serious to be dealt with
from the humble perspective of "market" and "marketing". I will say only
one thing: let us not over-exercise ourselves with the three root letters of
the Hebrew verb and let us not burden them with a mass of tasks and
functions. We have not as yet utilised a hundredth part of the vast store of
words hidden in our ancient literature fittingly apt for almost all of the
new activities of today resulting from the evolution of human society.
Were our innovators to proceed in such a manner, they would probably
find relief from the inclination of "marketing" that fills their hearts …
Witkon J.: The purpose of this Further Hearing is to elucidate a rule long
in dispute amongst members of this Court. Much time has already been
spent on how to interpret and remove the difficulties of this complicated
by-law, and I doubt whether the economic value of the tax makes up for
the cost of all this labour. ..
Finally, a word about the manner of interpretation adopted by my
colleague, Silberg J. He revealed to us … the meaning of the word "market"
in the Gemara, i.e. a place in which trade was conducted, and because the
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INTERPRETATION
word "marketing" comes from the same root, it must – so my colleague
holds – also involve "selling". With all due respect, it seems to me
that it is possible to assume that the words "market" and "marketing"
involve the notion of sale without concluding that every person involved
in marketing is necessarily a vendor. Under the conditions of modern
commerce, the actions which lead, finally, to the distribution of products
amongst consumers are so many and varied that the function of marketing,
its organization and resultation, may well be an independent business,
separate from the activities concerning sales.
Moreover, the words of a language evolve with the passage of time, and
a term which in a primitive society designated something concrete, such
as a place or a time at which a certain activity was effected, may, over
time, take on an abstract meaning which still embodies the original idea,
but which is free of all the trappings of the original idea and of all its
manifestations. This is the destiny of a word in a living language which
has a role in the development of society, and in its material and spiritual
progress. In this way… the word preserves the original notion …but it can be
realized in a form which is totally unrelated to the original form. Take
the word "market". Undoubtedly, in times of old and up to the present,
its original, concrete meaning was and is a place and time intended for
commerce in products. But in the modern economy, it denotes what
it denoted originally, i.e. a meeting between supply and demand. This
was the underlying meaning of the ancient word "market"; it is certainly
the meaning of the word "marketing", which is entirely the fruit of modern
thinking.
The latter certainly derives from the conceptual content of "market" as
we understand it in our modern conceptions, and it would therefore be
something of an anachronism to construe it according to the viewpoint of
an age in which the way of life was totally different.
In renewing our ancient language we have always sought to revive this
hidden treasure and pour new wine into old bottles. He who works towards
this goal is unable to adhere to the meaning of a word in all its past external
manifestations; he must discover the main idea of the word and derive from
it new uses in accordance with the spirit of the time and its requirements.
That is customary in every living language, and if the term "marketing" is
derived from "market", even though it has drawn away from the original
meaning of the latter, are we precluded from following the same course
and from deriving the equivalent term in Hebrew, "marketing", from the
ancient word "market"? Would it be better to use some linguistic barbarism
in case the Hebrew term for "marketing" is too narrow to express the full
meaning of the English term? This is not a new problem for us and it
has already been dwelt upon here in Mitova Ltd. v. Kazam (see above)
45
PART ONE: JEWISH LAW iN THE STATE OF ISRAEL
and in many other precedents (collected by U. Yadin in his essay on the
interpretation of the laws of the Knesset in the Pinhas Rosen Jubilee
Volume, 125). Literary interpretation has its due place, and who more than
my learned colleague has the authority to renew and enrich the language,
but I prefer to abstain from that since it may, as in the present case,
attach to new terms meanings whose time has passed and which will
eventually turn out to be an impediment to the development of our renewed
language.
H.C. 72/ 62
RUFEISEN v. MINISTER OF THE INTERIOR
(1962) 16 P.D. 2428, 2432-2437
The petitioner was born in Poland in 1922 of Jewish parents. Reared as a Jew, he
was active in the Zionist movement and did two years' training in preparation for his
migration to Palestine. At the outbreak of the Russo-German War in 1941, he was
imprisoned by the Gestapo, but after escaping and managing to obtain a certificate
that he was a Christian German, he worked for the German police and actively
assisted the local Jewish population of Mir by passing on information and supplying
them with arms. He was exposed and again imprisoned but he managed to escape once
more and found refuge in a convent, where he underwent conversion in 1942. At
the end of the War he entered the Carmelite Order, knowing that it had a chapter
in Israel which he could join in due course. After a number of unsuccessful attempts
to obtain permission, he was finally allowed to go to Israel in 1958. In his applications
for a passport he had been explicit about belonging to the Jewish people although
a Catholic. On entry into Israel, his application for a certificate under the Law of
Return and registration as a Jew was refused on the basis of a Government decision
providing that only one who declares in good faith that he is a Jew and is not a member
of any other religion is to be registered as a Jew.
Silberg J.: The question of law before us is very simply the meaning of the
expression "Jew" in the Law of Return, 1950. Does it also include a Jew
who has changed his religion and been baptised as a Christian but still
feels and regards himself a Jew, notwithstanding his conversion?
At this point I do not propose to answer this question in an unequivocal
manner. I wish to examine first the various alternatives involved. But I
shall say at once that were I to agree with the alternative submission of
counsel for the petitioner, that the term "Jew" in the Law of Return bears
the identical religious connotation that it bears in the Rabbinical Courts
Jurisdiction (Marriage and Divorce) Law, 1953, I would then propose
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to make the order nisi absolute and order the Minister of the Interior
to grant the petitioner an immigration certificate under sec. 3(a) of the
Law of Return. I would do so, however strange and anomalous it may
seem that a person who has gone over to another religion should rely
on the doctrines of the faith he has left, and in spite of my deep aversion
for such a confused argument.
According to the view prevailing in Jewish law, as it appears to me,
a converted or apostate Jew is treated as a Jew for all purposes save
perhaps certain ..marginal" rules of no real importance to the central
problem. I shall not rely here on the well-known dictum that "a Jew,
even if he has sinned, remains a Jew" (Sanhedrin 44a) since (as some
writers have already observed) it may well be that this dictum is more in
the nature of a homily than a rule of law. Be that as it may, the dictum
has nevertheless served for generations as a pivot of the halakhah and
as an authority, binding or persuasive, in nearly all cases regarding the
..Jewishness" of apostates. Jewish law is not only the law of Jews but also
for Jews and if the halakhah, as will be shown in due course, applies the
law to the apostate, then he too is a Jew.
To what does the rule refer? If [a proselyte] renounced the Jewish faith
and betroths a Jewish woman, he is regarded as a non-conforming Jew
and his betrothal is valid (Yevamot 47b) .
… He is a non-conforming Jew. The difference is that if he betroths [a
woman], the betrothal is valid (Bekhorot 30b).
If a Jew who has converted marries, though he knowingly practises
idolatry, the marriage is absolutely binding and (his wife) will need to
obtain a divorce from him (M.T. /shut 4:15) .
… For although he has sinned, he remains a Jew (Migdal Oz to
Maimonides ibid.).
The marriage of an apostate Jew is effective and (his wife) needs to
obtain a divorce from him (Tur, Even haEzer 44).
Even though he has changed his religion he is nonetheless a Jew as it
is written "Israel has sinned"; although he has sinned, he remains a Jew
(Prisha to Tur, Even haEzer 44:22).
It is written in the responsa of the Geonim: a childless widow whose
late husband's only brother was an apostate is exempt from halitza (a
procedure to release the woman from the levirate obligation) and from
the obligation to marry the latter. This opinion was given without
citation of any supporting authority. But in one of his responsa which
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PART ONE: JEW I SH LAW I N THE STATE OF ISRAEL
we do not follow, Rashi wrote that although he has sinned, he remains
a Jew, and any marriage he enters into is legally binding and he must
perform halitza but does not marry (his deceased brother's widow)
(Mordekhai to Yevarnot 4:29, but see Resp. Ribash 6).
There is some authority for saying that a childless widow is exempt
from halitza if at the time of her marriage the brother had already
converted, but this ruling is not to be relied upon (Even haEzer 157:4).
The authority last referred to is R. Yehudai Gaon, who wrote:
If at the time of her marriage to her husband the brother was already
converted, she has no need of halitza from him (cited by Mordekhai to
Yevamot 4:28 and by Tur, Even haEzer 157).
Tur notes:
We do not know why it should make any difference whether the brother
was or was not an apostate at the date of the marriage (ibid.).
Yosef Karo in his Commentary Bet Yosefto Tur, ibid. vehemently attacks
the "dispensation" given by R. Yehudai Gaon:
It is astonishing that anyone should think of giving dispensation in such a
case. But R. Yehudai Gaon in whose name this was stated was blind and
sometimes his students reported things in his name which never entered
his mind …. But one must wonder at his students and at the author
of haltur (R. Yitzhak ben Aha Mari) for reproducing this statement
without refuting it utterly. Clearly the statement is without foundation
and no one supports it in the least. And woe to anyone who is lenient
in this matter (see also Resp. Eliyahu Mizrahi, 47).
Some justification for the dispensation of R. Yehudai Gaon is to be found
in Bet haBehirah by R. Shlomo ben Menahem Meiri (to Yevamot 22a):
The early Geonim wrote that a childless widow whose brother-in-law
is an apostate is dependent upon him and is "deserted" [i.e. cannot
remarry] until she obtains halitza. A few Geonim instituted a new
principle, that if at the time of her marriage her husband's brother
was already an apostate she did not need halitza…. This has surprised
some commentators, since the marriage of an apostate is effective…. But
it seems to me that the latter rely on what the Talmud says at the end
of the first chapter about the ten tribes, who were considered by the
contemporary courts to be non-Jewish because of their almost complete
assimilation. These Geonirn held that in their own period assimilation
was rife.
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Another reason for R. Yehudai Gaon's distinction, though this falls outside
the question of the Jewishness of an apostate, is to be found in Or
Zaruah l :605 which takes the view that R. Yehudai Gaon utilized in this
connection the rabbinical hypothesis that "whoever marries does so under
rabbinical sanction" and he therefore annulled retroactively the marriage
of the deceased brother. The result of all this is that on precise analysis,
the view of R. Yehudai Gaon also does not derogate in any way from
the Jewishness of a Jew who undergoes physical baptism and becomes a
Christian, as happened in the present case.
Finally two further quotations to manifest the Jewishness of an apostate:
A childless widow whose brother-in-law is an apostate is not released
from the obligation to marry him except by halitza. The reason is because
of the sanctity of his Jewishness ( Otzar haGeonim to Yevamot 22a).
A Jew who vexatiously becomes an apostate is nonetheless called
"your brother" because though he has sinned, he remains a Jew (Resp.
Binyamin Ze ev 405).
Mr. Bar Niv, the State Attorney, submitted on behalf of the respondent
that even according to religious law an apostate is not fully a Jew but only
"partly Jewish". This is evidenced by the fact that he is not treated as a
Jew for purposes of inheritance or the law relating to interest or for being
counted in a minyan (the quorum of ten male adults required for public
prayer). I cannot accept this argument.
First, Jewishness is in principle a status and status is indivisible. Who has
ever heard of a half-Jew, a third-Jew or a quarter-Jew? Such arithmetical
divisions are found only in connection with a slave owned by two masters
(Gittin 41a). The Jewish religion, like all other religions, is by its very
essence total and complete. It cannot ever regard itself as sharing with
some other faith. The Second Commandment -. "Thou shalt have no
other gods before Me" – expresses this exclusiveness incisively.
Nor, in the second place, is the argument of the State Attorney accurate
in itself. As for being joined in a minyan, I shall not expend many words.
It would be exceedingly strange, not to say absurd, if an apostate who
believed in another deity could form part of a minyan, the other members
of which pray to the God of Israel. I would point out that according to
some of the authorities, an apostate is qualified to take part in other ritual
ceremonies not involving the presence of a full minyan (cf. Tosafot to
Ta'anit 27a).
With regard to interest, it remains very doubtful whether an apostate may
be charged interest, although Tur and Shu/han Arukh Yoreh De'ah 159
rule that ••it is permissible to lend an idolator money at interest" and
49
PART ONE: JEWISH LAW IN THE STATE OF ISRAEL
an apostate Jew is treated as an idolator. To the same effect Resp.
Rashba (attributed to Nahmanides) 224: "Nahmanides of blessed memory
has stated in one of his responsa that it is permitted to lend an apostate
money at interest."
But the matter is not free of doubt, for many authorities differ from Tur.
Rashi ruled that it is forbidden to take interest from a converted Jew
for he is called "your brother"… as it is written "Israel has sinned"
– although he has sinned, he remains a Jew (Resp. Rashi 175).
Maharil followed Rashi, R. Eliezer bar Yoel haLevi and Sefer Mitzvot
Gadol to forbid the charging of interest on loans made to a converted Jew
(Darkhe Moshe to Tur, lac. cit. 2; so also Sefer haTerumot, Jerusalem
ed., Part I, 212a).
It would seem that because of the differences among the authorities it
became the practice to take the stricter view in this regard, as Rema
(author of Darkhe Moshe), in his Glosses to Yoreh De'ah 159:2, noted.
In any event we are not at liberty to draw extreme conclusions, as we
were asked to do by the State Attorney, from the disputed dispensation
mentioned above.
There remains the matter of discrimination against converted Jews
regarding inheritance, pointed out by the State Attorney. In support of
his submission he adduced the responsum of Hai Gaon cited in Resp.
Rashba VII, 7:292:
As to your question whether according to the Torah a converted Jew
can inherit from his father, it has been divinely ordained that he does
not because he has removed himself from the sanctity of Judaism he
possessed through his father. Hence, a son can only inherit if he does
not break continuity with his father, as it is written "And I shall give
thee and to thy seed after thee", that is, those descendants who follow
after the father, thus excluding an apostate son who does not follow after
his Jewish father; again we should compare the story of the Patriarch
Abraham etc. No descendant is therefore entitled to inherit unless he
follows the tradition and bears the name of his father. An apostate does
not do so but has abandoned one people for another.
The State Attorney emphasized the words "abandoned one people for
another" and regards them as meaning actually leaving the generality of
Jewry. I think he has erred somewhat in so understanding them. The
intention here is the ideological denial of his people by the apostate …. An
apostate does not wish to be known by his family name. The question,
however, remains whether the rule that an apostate does not inherit from
his father is a scriptural precept.
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My answer is twofold.
(a) Here, too, a wide divergence exists among the authorities. As against
Hai Gaon, many others hold that although according to the Torah an
apostate son does inherit, a religious court or the Sages may deny him his
inheritance as a penalty: M. T. Nahalot 6: 12; Hoshen Mishpat 283:2 and
Taz ad foe. Mordekhai to Kiddushin 1:492.
(b) This comment is applicable equally to interest and inheritance. The
dispute is over whether an apostate inherits from his father, but all the
authorities agree that a Jewish father may inherit from his apostate son
(Rema to Hoshen Mishpat 283:2; Be'er haGolah, ibid. 8) and the same
applies to interest. Both Tur and Karo, who permit the lending of money
to an apostate at interest, forbid borrowing from him at interest ( Tur and
Shulhan Arukh, Yoreh De'ah 159:2). In other words, even if we follow
those authorities who permit the lending of money to an apostate at
interest and hold that the latter does not inherit from his father, it does
not by itself render the apostate non-Jewish with regard to interest and
inheritance. If that were the case, it would operate in both directions.
You cannot treat status like a coin that can be changed into a number of
smaller units, to deny it to him in respect of certain matters and then only
in relation to one of the parties involved, the lender and not the borrower,
the heir and not the testator. This very severance shows clearly that what
concerns us here is not to derogate from the Jewishness of the apostate but
rather to act strictly in one situation and leniently in another for a variety
of reasons, depending not on the rem of status but on the personam of the
status-holder.
All these considerations, together with the basic concept expressed above,
lead to the conclusion that the Jewishness of an apostate, which finds
striking legal expression in the law of marriage and divorce and in the
law of the levir (person subject to Ievirate marriage), constitutes a status
which is indivisible and absolute.
As I said at the beginning of the last section, were I of the opinion
that the term "Jew" in the Law of Return and the Rabbinical Courts
Jurisdiction Law meant the same thing, i.e. a Jew according to the rules
of Jewish law, I would grant the petitioner's application and make the
order absolute.
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PART ONE: JEWISH LAW IN THE STATE OF ISRAEL
C.C (T.A.J 1690/62
REIZMAN et al. v. HAYOT et al.
(1963) 35 l'.M. 81, 85
Upon the purchase of certain property, part of the purchase price was left outstanding
and payable over a number of years. The sum was linked to the dollar exchange rate.
That rate having changed to the detriment of the Israeli lira, the plaintiffs asked for
a declaration that part of the payments due constituted infact exorbitant interest and
that the linkage did not take effect.
Tzeltner J.: A term appearing in an Israeli statute is not always to be given
the meaning which it should be given according to the sources. Cheshin J.
said in Mitova Ltd. v. Kazam (1952) 6 P. E. 382:
It would be a gross error to construe every term and expression in
our laws according to the context of the Mishnah or Talmud where it
appears, although it is abundantly clear that the term or expression is
taken from a particular source. Thus, we may not construe the terms
"promissory note", "loan", "encumbrance", "partnership", "abandoned"
or "absentee's property" and like legal terms and expressions as they
are construed or defined in Jewish law, although there is no dispute
that they are culled from the ancient treasury of Jewish thought and
law. The vessels have been borrowed from one place, but their contents
are original or are taken from some other place.
On these grounds the judge arrived at the rule that the court may have
recourse to the meaning of the original source … Only if, after comparison, it is beyond all doubt that the rules emerging
from the Law and the ancient source are alike within the framework of
the subject at hand, or that the legal concept embodied in the source
is broad enough to include the legal concept to which the legislature
has sought to give expression, against a new background, by the term it
has "borrowed" from that source.
No one can persuade me that such a parallel exists between the Law in
question here and the sources. I am convinced that it does not exist at all.
Our law is the outcome of an economic situation that could only arise
in a modern economy, dynamic, in large part built on financial credit,
an economy that has no resemblance to the economy of the period of
the sources of Jewish law.
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INTERPRETATION
C.A. 227/63
REIZMAN et al. v. HAYOT et al.
(1963) 17(3) P. D. l625, 1633
Halevi J.: As for the ordinary meaning of the phrase "any credit transaction"
[in sec. 1 of the Interest Law, 1957], I would say that it includes a sale on
credit. The sources actually point to this meaning of the word "credit"
as its main meaning: see Baba Batra 22a and Rashi ad foe.; likewise
Pesahim 113a, where the Hebrew word "ashrai" is used, translated by
Jastrow as "a sale on trust" [and by the Soncino Talmud as "a credit
sale''].
H. C. 58/68
SHALIT, et al. v. MINISTER OF THE INTERIOR et al.
(1969) 23(2) P.D. 477,493, 494, 502, 547-549, 581-586
The petitioner notified the Population Registration Officer that the nationality of his
children was "Jewish'; but the Officer, acting on instructions issued by the Minister
in 1960, refused to register such nationality since the children were born to a nonJewish mother.
Silberg D.P.: In Rufeisen, the "Brother Daniel" case, (see above), we dealt
with an extreme and wholly exceptional instance of an unusual Jew who,
having converted to Christianity and become a priest, insisted on being
registered as a Jew. With regard to such an apostate, strangely enough,
two contradictory views exist: the halakhic view which looks upon him in
spite of all as a Jew, and the view of the man in the street – even if
religious and observant – who regards him in everyday life a complete
gentile and also calls him that. Since the law which mentioned the word
"Jew" is a secular law, its creator being the Knesset which speaks in
the language of the common man, we attached to the pronouncement of
the Knesset the popular secular (non-halakhic) meaning of the word and
held that an apostate is not a Jew entitled to the privileges of the Law
of Return. In the case before us the situation is different. Here it is not a
matter of interpreting the term "Jew" in a law. The Population Registry
Law of 1965 or 1967 does not mention that word but only the word
"nationality", and the question to be clarified here is whether the child of
a Jewish father and a non-Jewish mother may be entered as a "Jew"
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PART O NE: JEWISH LAW IN THE STATE OF ISRAEL
in the space reserved for "nationality". And if our researches yield the
conclusion that there is no effective general definition of the idea of "Jew"
other than that of the halakhah, we shall be bound to adopt the halakhic
test notwithstanding that the Law requiring registration of nationality is a
secular law.
At this point I return to the point I reached above. Two different tests
have been suggested to us as determinative of our decision. One, which
the petitioners defend, is the test of inner affiliation, hereafter called "the
subjective test". The other, which the Attorney General defends, is the
halakhic test, hereafter called "the objective test". The two must be weighed
one against the other, calmly and without any preconceptions. When I say
"without any preconceptions", I mean that we may not be seized by any
"prejudice" but not that we must entirely exclude the fact that the halakhic
test is very ancient in time with a history of millennia. Even the historian
who does not believe in the words of our Sages and is not ready to accept
the interpretation which the rabbis of the Talmud have given to Scripture
(as in Kiddushin 68b concerning the verse in Deut. 7:4: "For he will turn
away thy son from following Me"), such an historian will also admit, unless
he is a complete ignoramus, that the halakhic rule of a child's affiliation
being determined by the mother has prevailed in Jewry since at least the
time of Ezra in the middle of the fifth century B.C.E. (N.B. Ezra 10:3
and the Septuagint of Ezra 10:44) and so venerable an age should most
certainly be set to the credit of the halakhic test.
The essential nature of the concept of nation and nationality is a most
difficult and complex subject. Much ink has been spilt and many a quill
broken on the matter, and a clear and unequivocal definition of this
controversial concept has not yet been found. (See the excellent work of
B. Akzin, States and Nations, New York, 1966.) The problem that remains
unsolved is what is the common strand which makes millions of people a
single ethnic unit. One would say that the feeling of national affiliation
is a basic monolithic emotion inexplicable by other concepts, as much as
the colour "green" cannot be "explained" by indicating its wave-length or
the number of its oscillations …
Indeed in view of the exclusive status of Jews in the world, and the
fact that we are always so different from others, whether for good as
our few friends say, or for bad as our many enemies, headed by Haman,
declared: "And their religion is different from that of any other peoples"
(Esther 3:8), it would be extremely difficult to deny Jewry its character
as a people or nation. Incidentally, the words "people" and "nation" [in
Hebrew] are synonyms having the same meaning, witness the synonymous
parallelisms of the Bible, such as" Attend unto Me My people, and give ear
unto Me, My Nation" (Is. 51:4); "He subdueth peoples under us and nations
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under our feet" (Ps. 47:4); "Peoples shall curse him, nations shall execrate
him" (Prov. 24:24).
Thus the way is finally cleared for considering an9 determining the
question at issue here: which test should the Court choose for deciding
the Jewish nationality of a person – the accepted objective test of the
halakhah that treats Jewish motherhood or conversion to Judaism as the
exclusive indicator of the Jew, or the subjective test that the petitioners have
chosen, which treats attachment to Israeli-Jewish culture and its values as
such an indicator?
When the petition was presented, the petitioner's children were Oren, a
child of four, and Galia, a child of one year, and, "although not members
of the Mosaic religion (or of any other religion), they are of Israeli-Jewish
affiliation and were brought up in this spirit" (para. 5 of the petition).
Accordingly, in the opinion of the petitioners, they should be registered as
members of the Jewish nation.
Had the petitioners not been such fanatical atheists, they could have
arranged for the conversion of their children in peaceful tranquility,
without denying their non-religious outlook. I assume that the difficulty
which they found hard to surmount was not circumcision – Oren was
actually circumcised (though not in a religious ceremony but for reasons
of convenience). In the main, they feared acceptance of religious precepts
which they regarded as giving the lie to their lives, but they, the learned
petitioners, overlooked the fact that according to the halakhah, "a minor
proselyte is ritually immersed on the authority of the bet din" [religious
court] (Ketubot Ila; M.T. Jssurei Bi'ah 13:7; Yoreh De'ah 268:7).
"On the authority of the bet din" means on its authority alone. Neither
the child nor the parents are asked to declare acceptance of the Torah and
religious precepts: the bet din arranges the immersion and circumcision
(Rashba in Shitah Mekubetzet to Ketubot, Zioni ed., 236). Acceptance of
religious precepts is not an obstacle and where not possible it is waived
(ibid.). If the parents (even the mother alone) bring the child to the bet din,
he is converted even though they are not converted with him (ibid. 235,
in the name of Rashi).
But the most interesting thing about the conversion of a child on the
authority of the bet din is that on growing up he can retract. His being a Jew
on reaching majority depends, therefore, on his own free will…. Retraction
will render the conversion void retroactively. (Consider carefully Rashi to
Ketubot 1la; M. T. Melakhim 10:3; Yoreh De'ah 268:7). Had the petitioners
converted their children on the authority of the bet din, that would not
have decided their fate forever. The matter would still have remained
within the free will of the children upon growing up, and no one could
have "convicted" them of spiritual harm to the children …
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PART ONE: JEWISH LAW IN THE STATE OF ISRAEL
Kister J.: The Jewish people is undoubtedly a singular people, at least
in having successfully survived for millennia… whilst other great peoples
and cultures have flourished and disappeared, and all this in spite of the
fact that for the larger part of their existence the Jewish people possessed
no state, no territory and no common tongue. No one can contend that
the Jewish people is a pure race. Although it traces its ancestry back to
the patriarchs, Abraham, Isaac and Jacob, over the centuries converts have
attached themselves and become Jews in every respect so that ultimately
the Jewish people form an entity (that may even be called a legal entity)
comprising the children of Abraham, Isaac and Jacob and of the proselytes
who joined it in every generation and all their descendants. Nor can there
be any doubt that what has united them in all generations and still unites
them is their Torah. The statement of Saadiah Gaon sums it up succinctly:
"Our people is a people through its Torah alone."
I stress the term "Torah" as broader in concept than "religion". The
assimilationists have employed the latter term in the sense of religious
cult, wishing to turn the Jewish people into a mere religious community.
"Torah" comprehends not only matters of belief and opinion and the
commandments affecting man and his Maker but also social prescripts, law
and legal procedure, customs and usages, including the relations between
the Jew and his people, his land and his tongue.
The petitioner submits that today this definition is no longer operative.
I shall deal with this submission after considering the question of how,
under the laws of the Torah, a person becomes affiliated to the Jewish
people and how he becomes separated from it. I shall also consider the
question of mixed marriages and their issue.
As emerges from the very definition of the Jewish nation, "Jew", according
to modern notions, is both a national and a religious concept, and the
two aspects are indivisible. Belonging to the Jewish people cannot be
separated from belonging to the Jewish religion. Joining the Jewish people
is effected by conversion. The detailed laws of conversion are not in
question here but rather, our concern is with what is expected of a person
who wishes to join the Jewish people as an inseparable part thereof,
and the nature and extent of the bond created. On this point it would
be better to quote from chap. I of Ruth rather than search for definitions.
Ruth the Moabite desired to join the family and people of her deceased
husband. Her mother-in-law Naomi did not encourage her nor did she
promise her any benefits, but Ruth's longing sprang from the depths of
her soul:
Whither thou goest, I shall go, and where thou lodgest, I shall lodge;
thy people shall be my people and thy God my God. Where thou diest,
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I shall die and be buried; the Lord do so to me and more also if
aught but death part thee and me.
And the account goes on to tell us that Naomi saw "that she was steadfastly
minded to go with her and left off speaking with her." To put it briefly
in modern terms, this is a powerful and clearly expressed plea to join
the Jewish people and the Jewish religion, to join its way of life, to
be forever bound by ties of intimate fellowship. There are also external
signs of probity of will ("she was steadfastly minded''). All these matters,
we may say, are the essentials; the rest merely complete them.
The acceptance of converts on this basis may reasonably be said to have
enabled the Jewish people to survive as a people for so long in spite of
dispersion over the world for two thousand years without a state and
common territory and in spite of its everyday language not being Hebrew.
The converts to Judaism did not form a culturally foreign element that
might wreck it, as happened with other peoples joined by groups of a
different culture, changing the features of the host people and bringing
about its complete disappearance.
In practice, it is not always possible to meet such a requirement in full.
Even where a person is wholehearted in his wish to join, he naturally
does not forget the people he was born into, nor can he always, in a
short time absorb the Torah of the Jews, its spirit and its minutiae.
This eventuality has not been overlooked and it has been well understood,
but it has not barred the acceptance of converts. There were times when
we were most meticulous and times when we were lenient, depending
upon the circumstances. There is no need to cite precedents; it is known
to all who have read a little of Torah literature. This apart, cases have
occurred of conversion not from sincere conviction but for reasons and
motives incidental to some special interest, such as a desire to marry. These
have rendered the effects of conversion suspect. But cases of insincere
converts subsequently proving disloyal to the people have been infrequent.
Towards the end of the Hasmonean Kingdom, when the authorities were
interested in converting the Edomites in the belief that it would help to
strengthen or expand the Jewish people and reinforce the state, these
political considerations were deceptive and did not serve the interests of
the people nor the welfare of the state. It is superfluous to go into the
details of this conversion here, since it was not voluntary, wholehearted or
sincere.
From the viewpoint of the persons accepted as converts, it is to be noted
that not only is no "race" disqualified, but, as tradition relates, many of
our enemies or their descendants became righteous proselytes and occupied
important positions in the life of the people. I have mentioned Ruth the
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PART ONE: JEWISH LAW IN THE STATE OF ISRAEL
Moabite from whom, we may recall, King David was descended, and since
the King Messiah whom we await will, according to tradition, be of Davidic
stock, it follows that a Moabite origin is no disqualification even for the
most elevated of offices.
Talmudic aggadot (legends) are in the same vein. The Talmud relates that
Nebuzeraddin (Nebuchadnezzar's general) became a righteous proselyte at
the end of his days, that grandchildren of Haman the Aggagite and Sisera
the Canaanite taught Torah in the Land of Israel and that Sennacherib's
descendants were Shmaya and Avtalyon. Even R. Meir and R. Akiva were
of converted families, and Onkelos was himself a proselyte (see Gittin 57b,
Sanhedrin 96b and elsewhere). These stories suggest an attitude which may,
it seems to me, be termed liberal…
Before passing on to the question that concerns us here, i.e. mixed
marriages and their issue, I must pause briefly to consider whether a person
can leave Judaism. Primafacie, a Jew who has apostatized is still regarded
as a Jew… even if he has sinned grievously. In most matters, however, he is
generally treated as non-Jewish and such of his offspring as have become
completely assimilated are not looked upon as Jews at all. Let me quote
in this connection from Resp. Radbaz, 2:251:
The marriage of an apostate (to a Jewish woman) does not take effect
under scriptural law. Nevertheless because of the serious nature of
adultery, it has been held that some regard must be given to his
marriage. Although according to the law of the Torah he is a gentile for
all purposes, we have apprehensions as to whether he had intercourse
for the purpose of proper Jewish marriage.
Here the apostate himself is involved, but those of his offspring who have
already become fully assimilated with gentiles are certainly regarded as
completely non-Jewish. It is pertinent to mention Responsum 29 of R.
Ya'akov Berab (the teacher of R. Yosef Karo) that deals with Marrano
offspring. It is therefore clear that a Jew who has left Judaism is not
deemed a Jew except for certain matters, and his assimilated children
are non-Jews in the eyes of the halakhah. Much has been written on the
subject in halakhic literature, but this is not the occasion to go into the
details, the distinctions made and the different views expressed …
Agranat P.: If we now turn our attention to the rules of Jewish Jaw
that concern the present case, we shall find that they reflect this very
consciousness of the Jewish people being a religious national (ethnic) entity,
which emerges from the foregoing historical explanation. To understand
the matter, it is best to consider the halakhah in the light of the following
three propositions: (i) all those born of Jewish parents are reckoned among
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the Jewish people; (ii) mixed marriages are forbidden and the status of a
child born of a mixed marriage is that of the mother – if she is Jewish, so
is the child, and if she is not Jewish, neither is the child; (iii) a non-Jew
can be absorbed into the Jewish people by virtue of an act of conversion.
The first proposition is grounded in Jewish tradition as set out in the
Torah, according to which the children of Israel became a single people
on the exalted occasion of their sanctification by God by virtue of the
covenant He made with them, to perform His commandments, statutes
and laws and teach them to their children after them (Ex. 19:5-6; Deut. 5: 13 and 6:1-2). So also God's promise to Abraham, the first Patriarch, that
he would become "a great nation" in order "that he may command his
children and his household after him to keep the way of the Lord and
do righteousness and justice" ( Gen. 18: 18-19). The covenant is on the
one hand a religious covenant, but it is also, on the other, a patrimonial
covenant; hence attachment to the Jewish people attends every "son of
Israel" born to Jewish parents. As Y. Kaufmann observes (in his reply
of 1958 to the questions addressed by David Ben Gurion, then prime
minister, to Jewish scholars) such attachment does not depend on a person's
deeds and beliefs when he grows up. Indeed the judgment of the Deputy
President in Rufeisen (see (I 962) 16 P. D. 2428, at 2432-2433) informs us that
according to the prevailing view in Jewish law, "a Jew who is converted
or becomes an apostate is treated as a Jew for all purposes save perhaps
certain 'marginal' laws"; and the well-known Talmudic dictum "A Jew,
even if he has sinned, remains a Jew" (Sanhedrin 44a) has served as a
firm basis for this rule in all generations. Nevertheless, I think, this too
may be explained by the adhesion of the Jewish people to the tradition
of their sanctification by God, so that the religion cannot waive its rights
even as regards the apostate, since he may repent and return to fulfill his
duty under the Torah, a duty from which he has not been released. As
Rashi explains the above dictum, "since it does not say that the people
sinned, its sanctification still attaches to it." Rav Tza'ir (Hayim Chernovitz,
To/dot haHalakhah, vol. I, 305) points out that the view that an apostate
is considered a Jew is predicated "on the basis of historical Judaism
that included the rule 'although he has sinned he remains a Jew', since
the primary Jewish outlook derives ultimately from the sanctity of the
Jewish race, for the principle of 'thy people is my people, thy God is my
God' (Ruth 1:16) has never been displaced in Jewish tradition."
It follows that the first proposition of the halakhah with which we are
concerned – that affiliation to the Jewish people is vested in a person by
his very birth to Jewish parents – is not based on racial consciousness
alone, but is also nourished by the tradition of Judaism.
It should be added that whilst the last conclusion is based on historical
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PART ONE: JEWISH LAW IN THE STATE OF ISRAEL
analysis, it is not to be regarded as inconsistent in principle with the decision
of the majority in Rufeisen, in regard to the national status of an apostate.
As will be recalled, it was held there that contrary to Jewish law, as the
Deputy President explained, a Jew who changes his religion leaves the
Jewish community. As I understand the reasons given for this decision,
the learned judges adopted the criterion of popular Jewish sentiment for
defining "Jew" in the Law of Return and registering "nationality" in the
Population Register. This sentiment cannot be reconciled with the idea
that a Jew who has changed his religion and thereby cut himself off from
the very core of Judaism can still return to the congregation of Jewry and
be called a Jew. Thus Berinson J. said in his judgment:
Because of a well-developed sense of self-preservation, however, the
people themselves have decided and acted differently throughout the
ages. For them, a Jew who has embraced another religion… has no place
in the Jewish community. Not for nothing is he called an "apostate"
(meshumad = destroyed) because from the national viewpoint he is
regarded as having destroyed himself and cut himself off from the
nation, he and his descendants after him. His family mourn for him
by rending their clothes. All ties with him are broken. In the national
contemplation, a Jew and Christian cannot reside in the same person
and certainly not a Jew and a Catholic priest – that is a contradiction
in terms (at 2454. See to the same effect the Deputy President at 2439
and the dicta there cited; Landau J. at 2447).
If we ponder a little over this passage, may we not say that popular
Jewish sentiment has been sustained, and not only in a negative manner, by
religious motivation? In the extreme case of a person changing his Jewish
religion for Christianity, there is no longer room to take into consideration
his origins because the feeling of kinship has been emptied of all substance
and cannot unite the apostate wholeheartedly with the rest of the Jewish
people. It is to this that the words, "In the national contemplation, a Jew
and Christian cannot reside in the same person" refer. Hence, in preferring
the test of popular sentiment towards the halakhah the Court was having
recourse to a national-religious test.
It will be recalled that the second proposition states that a child of a mixed
marriage follows the mother in regard to status. This rule is only to
be understood properly in the context of Judaism's prohibition of such
marriages. Ezra and Nehemia regarded the commandment, "Neither shalt
thou make marriages with them" (Deut. 7:3), as an absolute prohibition
applying to all contemporary "peoples of the lands" (and not merely the
"seven nations') and "forever afterwards" (Ezra 9:2 and 12). And they
ordered all alien woman and their offspring to be excluded from the
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community without the possibility of converting. In later times Jewry did
not follow this grave and harsh example; the Talmudic Sages contented
themselves in this regard with a rule that prescribed first that mixed
marriages are of no effect and secondly that the issue follow the mother
(Kiddushin 66b, in the Mishnah: "Whatever woman cannot contract a
marriage with a particular person or with others, the issue is as she and
this occurs with a handmaid and a gentile woman." See also M. T. lssurei
Bi'ah 15:4). The reason for the prohibition of mixed marriages is that
mentioned in the Pentateuch: "For he will turn away thy son from following
Me and they will serve other gods" (Deut. 7:4; Ex. 34:16). What is involved
here, therefore, is a religious reason, the fear of straying after alien faiths.
The Sages, too, relied upon this verse but laid down the rule "the child
is as she" by a process of interpretation – "thy son by a Jewish mother
is called thy son but thy son of a non-Jewish mother is not" (Kiddushin 68b
and see Rashi ad Zoe.).
What was the substantive reason, it may be asked, for distinguishing
between a child born of a Jewish father and a non-Jewish mother, who is
not a Jew, and a child born of a non-Jewish father and Jewish mother?
The answer is possibly that behind the Talmudic interpretation of the above
verse lay the idea that when a child is still of tender age, it is reared
mainly by the mother and, therefore, in the spirit of her religious faith.
This explanation is given by Louis Finkelstein in 1958 in answer to the
questionnaire of Ben Gurion:
Our sages recognized that the formative education of a child is that
given to it whilst still in the cradle before it has learned to speak. Such
education it receives largely and principally from its mother, and she
must either be of Jewish parentage or have herself accepted Judaism.
See the like remarks of this scholar in his "The Jewish Religion" in The Jews
etc. under his editorship, vol. II, 1741: "In the case of a mixed marriage,
the status of the children is determined by the faith of the mother, as the
greatest influence in their lives."
Another reason for the distinction, which is not inconsistent with the first,
is suggested by my learned friend Landau J. in his judgment in the present
case: kinship with the mother is clear and certain, something which cannot
always be said of the father. (This reason is also mentioned by Prof. Y.L.
Talmon in "Who is a Jew?" in Encounter, May 1965, p. 30).
It would not be excessive to draw attention to what Rav Tza'ir wrote
on the subject (op. cit. 233), that whilst in the case of a Jewish father
and a non-Jewish mother "none of the Sages had any doubt that the
child follows the mother and indeed stood firmly by this rule, in the
case of a non-Jewish father and a Jewish mother, they differed as to
61
PART ONE: JEWISH LAW IN THE STATE OF ISRAEL
whether the child followed the mother or the father and this difference
long continued among the Tanna'im and Amora'im." He adds:
Formally, the difference appears to revolve on a halakhic point, as if
the matter depended on the definition of the noun mamzer (bastard].
Since, however, the difference arose in the particular case of a Jewish
mother and a non-Jewish father…it may be deduced that behind the
halakhic assumption there lurked some historical or social view…. After
some hesitation, the rule finally prevailed that the child of a gentile… and
a Jewish woman is Jewish (Yevamot 45b) even to the extent, according
to the Amora'im, of being qualified to act as a warden of the community.
Since his mother was of Jewish descent, he may be regarded as "one from
among thy brethren" (Deut. 17: 15) ( Yevamot loc. cit.). The Sages also
said to King Agrippas, "Thou art our brother" (Sotah 4la. According
to Rashi, "Because his mother was Jewish"… )
Whatever the explanation of the distinction, the rule that the child follows
the mother, so far as it concerns the non-Jewish status of a child born to
a Jewish father and a non-Jewish mother, is clearly the inevitable result
of the invalidity of mixed marriages by virtue of the prohibition decreed
by historical Judaism. The basis of the decision did not lie in a mere
desire to separate Jews from other people, but in the quest to prevent the
religious assimilation of members of the Jewish people by ensuring their
national singularity and their separateness from other peoples with other
religions and faiths. I have no doubt that the fact that the prohibition
became rooted in Judaism contributed not a little to the Jewish people
remaining largely steadfast to "the law of endogamy" and ensuring its
separate existence in spite of dispersion among other peoples.
It follows that the racial test which lies at the heart of the second halakhic
proposition also has a religious foundation.
The third proposition, about which I do not intend saying very much,
states that a non-Jew may attach himself to the Jewish people by an act
of conversion ( Yevamot 46b; M. T Issurei Bi'ah 13: 1, 4, 6). According
to Rav Tza'ir (op. cit., 296), the institution of conversion embraced both
a religious and civic relationship; after Jewry lost its political freedom,
the law of conversion, as developed by the Talmud, became confined
entirely to the religious sphere and became a wholly religious concept.
Kaufmann (The Religion of Israel, (Hebrew) vol. I, 226ff.) also observes
that "conversion in early times was cultural-territorial; later it became
conversion to the Covenant." As I suggested above, Ezra and Nehemiah
expelled alien women and their offspring from the community without
offering them the possibility of conversion, whereas later Judaism did not
follow this precedent. The reason is, first of all, that the early authorities did
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INTERPRETATION
not know of any usage of converting women in the absence of any mention
thereof in the Pentateuch (immersion is the invention of later generations,
according to Rav Tza'ir, op. cit. 301-3), or that the Judaism of the time did
not yet know of "any particular and fixed practice of accepting converts",
according to Kaufmann, op. cit. 226. Secondly, and this is the main
reason, in the era of the Talmud the view preached by the later prophets
took root, that whilst the Torah is specific to the Jewish people and
without the latter "it cannot be envisaged" (Rav Tza'ir, op. cit. 264), it
also possesses a general universal character appropriate for every human
being as such. "Judaism was universal", says Kaufmann (op. cit. 214),
not merely in the sense that it regarded its God as the God of the whole
world, the only God, whose religion alone is true religion, but also in
the sense that it thought of itself as the religion to which all mankind
must hold fast.
Thus, later Judaism legitimized conversion and opened its doors to all who
wished to enter. Again it is important to emphasize that the universality
of Judaism is not inconsistent with but rather complements the idea of
the uniqueness of the Jewish people as the bearers of the Torah and its
designated guardians. "The common element of these two aspirations" (the
universal and the particular) Rav Tza'ir explains (at 266) "is that neither
looks upon Judaism simply as a religious conception that can depart from
the bounds of the Jewish race, since that is the very foundation and
essence of Jewish prophecy and the concepts of Judaism." Akzin sees it in
a similar light (States and Nations 55): "Judaism, despite its universalistic
theology, has hardly ever departed from the path of a mono-ethnic religion,
and this strengthened both the fact of and the desire for ethnic coherence
among Jews."
According to Jewish law, it must also be remembered, a non-Jew who
converts acquires the status of a Jew for all, or nearly all, purposes
(including the right to marry a Jewess) since "a proselyte is like a new-born
child" ( Yevamot 22a, 97b), i.e. he has the status of a person born Jewish.
Thus on the one hand, conversion involves adhesion to the Jewish religion,
and the very act of conversion is a religious act, and on the other hand
the effect of the act is to enable the convert to affiliate to the Jewish
people and become merged therewith. Moreover, the latter facet testifies
that Judaism had no fears of the intermixture of alien blood, provided that
the conditions of conversion were fully observed.
Thus the third proposition of the halakhah, too, demonstrates that
according to the viewpoint of historical Judaism the elements of nationality
and religion are inseparably intertwined.
63
PART ONE: JEWISH LAW IN THE STATE OF ISRAEL
C.A. 440/75
ZAND BANK et al. v. DANZIGER et al.
(1976) 30(2) P.D. 260, 266
Shamgar J.: The term "resolve" [in sec. 2 of the Contracts (General Part)
Law, 1973] is drawn, it is well-known, from Jewish law. The meaning is that
both the offer and the acceptance must show the intention of the offeror
and the offeree to create, according to the circumstances, a binding legal
relationship.
Prof. Z. Tzeltner (The Law of Contracts in the State of Israel, (1974),
37 and 55) urges that "resolve" is synonymous with "seriousness" and the
lower Court, relying on that view, decided as it did. More acceptable to
me is the view that by adopting the word "resolve", the legislator did not
mean to indicate seriousness of intention alone, but to adopt the common
elements of the European and English legal systems as well, and it sought to
deem "the intention of creating legal relationships" as basic to the making
of a contract. This aim emerges from the Explanatory Notes to the Bill
of the Law. It also matches a view expressed by Prof. Tzeltner elsewhere
in his books (at 40-42) and is also supported, incidentally, by the reference
to its meaning under Jewish law. It is superfluous to add in this context
that there is clearly no duty to interpret a statutory term taken from Jewish
law precisely according to its original meaning (per Cheshin J. in Mitova v.
Kazam, (1952) 6 P.D. 4, above).
Cr. A. 89/78
AFANGAR v. STATE OF ISRAEL
(1979) 33(3) P.D. 141, 150, ISS, 160
The issue in this appeal was whether the defence of necessity was available to the
appellant on a charge of assault.
Elon J.: Learned counsel for the appellant also drew our attention to
the view taken by Jewish law in this matter, and I congratulate him on
that since the approach of Jewish law is important for us …
As we have seen the principle of defence of another person involves
concepts founded in public policy and the ethical outlook of a society
regarding the volunteering of assistance to a person in danger of bodily
injury. That course is obligatory according to the logic and nature of orderly
64
INTERPRETATION
social life. Thus we find that English and American legal scholars consider
it a matter of public policy and a peremptory response to injustice that
the good man has ingrained in him. More particularly, it also appears
in the Jewish law sources, where the rule, "Neither shalt thou stand
idly by the blood of thy neighbour" constitutes a fundamental principle
in the philosophy of Judaism. It is right, in my opinion, that we should
understand those concepts which form the foundation of ethical doctrine
and cultural values in the light of Jewish tradition (see Zim v. Maziar,
(1963) 17 P.D. 1319, at 1332 above and Roth v. Yeshufeh, (1979) 33 (3)
P.D. 617). In view of the Law and Administration Ordinance (Amendment
No. 14) Law, 1972, which did away with the subjection in the interpretation
of the Criminal Code Ordinance to English law, and in view of the general
terms of the Penal Law of 1977, which omits sec. 4 of the Criminal
Code Ordinance – which required such subjection – it is certainly for
us to give an original and independent interpretation, as the circumstances
may require, to such a basic concept as the one before us.
Sussman P.: I join respectfully in the conclusion reached by my learned
friend Elon J., but because I have arrived at it in a manner different
from his, I feel obliged to set down my reasons. The only problem before
us is whether the defence of necessity is available to the appellant under
sec. 18 of the Criminal Code Ordinance of 1936. To solve this problem
I cannot be assisted by Jewish law. That law is clearly a treasured
cultural possession of our people, from which both the legislature and the
courts can derive inspiration. We are, however, concerned with a specific
provision of the Criminal law that sprang up in another source having
nothing to do with Jewish sources. I venture even to doubt whether the
application of Jewish criminal law is truly acceptable to the public in
Israel. For instance, would the larger part of that public be prepared in
1979 to condemn the adulteress to stoning, or, if she were the daughter
of a Kohen (member of the priestly tribe), to burning?
See: KUPAT AM BANK LTD. v. HENDELES et al., above, p. 6.
See: HENDELES v. KUPAT AM BANK LTD. et al, above, p. 10.
65
PART ONE: JEWISH LAW IN THE STATE OF ISRAEL
O.M. (T.A.) 933/79
RUTGER v. STATE OF ISRAEL
( 1981) I P.M 265,267,277
The issue in these proceedings was whether a person who found stolen property in some
hiding-place could acquire ownership thereof under the Restoration of Lost Property
Law. The main argument of the State was that stolen property does not fall within the
definition of lost property.
Maltz J.: The third source to which the parties' counsel drew my attention
was Jewish law. Respondent's counsel tried to persuade me that the Law
is to be construed according to Jewish law, under which the rules relating
to lost property do not apply to property that has left the domain of
its owner by way of theft.
I would be very happy were that the case. I have never understood why
a legal principle imported from Australia or New Zealand is preferable
to one of Jewish law, at least one of those applicable today. This Law is
an example: the situation had changed, the law had changed. Here was
an opportunity to enact a new Law of which the essential principles would
be taken from halakhah.
But that did not happen. No halakhic principle was placed at the centre
of the new Law. Some members of the Knesset protested about this fact in
the parliamentary debates. The answer of the Minister of Police was that he
could not understand why just in this particular case they were so full of
wrath, for as everyone knows, Israeli legislation in general does not adhere
to Jewish law.
Respondent's counsel, who submitted to me much interesting material
about the definition of lost property and finding under Jewish law – he
even enlisted the help of the computer at Bar Ilan University – does
not explain in his summation why in his opinion the Law – the foundation
of which does not lie in Jewish law principles – should be construed
in accordance with Jewish law and not according to the principles of
interpretation that apply to the generality of Israeli statutes. That would
have been fine, had the principles of Jewish law served as the basis
for the Law, but the situation being otherwise, how can a Law, the
principles of which are alien to Jewish law, be "dressed" with a Jewish law
interpretation?
I do not, therefore, accept the argument that the Law is to be construed
according to Jewish law. Counsel for the respondent may perhaps find some
consolation in the fact that under Jewish law the interpretation is not as
easy and as simple as he wished to infer. I am not at all sure that had I
66
INTERPRETATION
needed to construe the Law according to Jewish law, I would have come
to the conclusion that stolen property is not lost property.
C.A , 341/80
ALI v. SASSON et al.
(1982) 36(3) P.D. 281, 289
A football pools coupon filled in by the appellant having subsequently been found to
be missing, this fact was reported to the football pool organisers and consequently the
coupon was not included in the weekly competition, The appellant claimed that his
coupon had contained the winning forecast and that he was entitled to the first prize.
His action was dismissed in the District Court.
Sheinbaum J: The classification of bailees under the Bailees Law, 1967,
follows Jewish law, as explained in the Explanatory Notes to the Bill of
the Law. See also Z. Tzeltner, "The Law of Contracts and its Development
during the Twenty-Five Years Since the Establishment of the State" (1975)
29 haPraklit 56, 71, and N. Rakover, "The Jewish Law Sources of the
Bailees Law, 1967" (1968) 24 haPraklit, 208, 211. Since Jewish law was
considered by the draftsmen of the Law, we may therefore be assisted
by Jewish law in understanding the concepts employed by the statute
(although not all its provisions follow the rules of Jewish law).
We learn from the Mishnah, Shevuot 8:1, thatThere are four bailees, the unpaid bailee, the borrower, the paid bailee and
the hirer. The unpaid bailee takes an oath in all cases, the borrower pays
in all cases, the paid bailee and the hirer take an oath in the case of
injury, capture or death, but pay for loss or theft.
We also learn from M. Baba Metzia 3:11:
If a man deposits money with his neighbour who binds it up and slings
it over his shoulders or entrusts it to his minor son or daughter and
locks the door before them but not properly, he is liable because he
did not look after it in the manner of bailees. If, however, he looked
after it in the manner of bailees, he is exempt.
Thus, in Jewish law the gratuitous bailee is liable only for negligence
(peshiah). As the obligation of this type of bailee is summed up in Hoshen
Mishpat 291: 1: "An unpaid bailee is not liable for theft or loss and only
has to pay for negligence." The same article, in paras. 13 and 14, goes
67
PART ONE: JEWISH LAW IN THE STATE OF ISRAEL
on to explain that looking after a thing in the manner of bailees depends
on the nature of the deposit. Where the deposit is kept in a proper place,
the bailee is exempt but not otherwise.
It seems that one may discern the common features between the
"negligence" (rashlanut) of a bailee in the Bailees Law – if we construe it
with the help of the Civil Wrongs Ordinance – and between the negligence
(peshiah) of Jewish law.
68
Chapter Three
.. RELIGIOUS" LAW IN THE COURTS
1. Status of "Religious" Law
Cr. A. 112/S0
YOSIPOF v. ATTORNEY-GENERAL
(1951) 5 P.D. 481,484. S0l-502
Landau J,_· The appellant… was convicted in the Jerusalem District court
of the felony of bigamy.. .in contravention of sec. 181 of the Criminal
Code Ordinance, as amended in 1947, and was sentenced to one year's
imprisonment. His appeal is directed both against conviction and against
sentence. Upon the suggestion of counsel for the appellant…and with the
consent of the State Attorney, we decided to hear the appeal in two stages
– the first in respect of conviction and the second (should we reject
counsel's submission in regard to conviction) in relation to sentence.
The facts are set out in detail and with great clarity in the judgment
of the learned President of the District Court and since they are almost
undisputed I do not need to repeat them at any length. The appellant, an
Israeli Jew belonging to the Caucasian community, married a woman in
1936, who bore him five children. That marriage still subsists. In 1950, with
the consent of the Rabbinate in Jerusalem, he married a second woman
by religious rite. He obtained the consent by a false declaration, supported
by two witnesses, in which he concealed the fact of his existing marriage.
Silberg J.: In order to explain the idea, we must deal briefly with the
question of the special legal position of "matters of personal status" and
the place they occupy within the framework of the general civil law of
the State.
As everyone knows, the Palestine legislature divested itself of the authority
to lay down new rules of its own in matters of personal status, and for
69
PART ONE: JEWISH LAW IN THE STATE OF ISRAEL
reasons that are well-known and understandable left the regulation of
such matters – both in point of procedure and in point of substance
– generally to the different religious codes of the various communities.
Matters affecting the marriage and divorce of a citizen of Palestine, a
member of one of the recognised communities, are dealt with even in the
civil courts (when, for example, the question arises before them incidentally)
in accordance with the religious code of law of the community concerned.
The same applies to the duty of maintenance of a husband in a claim
against him a civil court and also in other like matters.
Thus far the matter is simple, plain and well-known enough, and there
is no apparent reason to discuss it at length. The interesting question,
however, which is not so simple, is, what does it mean? Did the legislator
leave a vacuum from the legislative viewpoint, and with regard to these
topics employ foreign legal norms, that had no place in his own system
of law? Or did the legislator in the Land of Israel himself take over these
legal norms and make them an integral part of his own general system
of civil law? The question is not, as we shall see, merely a theoretical
or academic one.
Even had there been some hesitation about the matter up to 1945,
the problem was completely resolved with the promulgation of the
Interpretation Ordinance of 1945, and since then there is no longer any
room for doubt. Sec. 2 of the Ordinance provides explicitly that the term
"law" also includes "the religious law (both written and oral) … which is in
force or will be in force in the future in Palestine." This is crystal clear,
and any interpretation is superfluous. The legislator has expressed his view
in unmistakable language that religious law, to the extent that it is in force
in Israel, itself forms an integral part of the law of the State. That is to
say, if a District Court, for example, deals with the obligation of a Jewish
husband who is a citizen of Israel and applies, as it must, Jewish law, that
part of the Jewish law dealing with the question is regarded as if it had
been enacted as the law of the State. This, moreover, is the only logical
and possible approach to the matter. Religious law is not "a foreign bough"
grafted on to the trunk of the tree from without but, to the extent that it
has been recognised, is itself inextricably interwoven with the tree itself
and forms a part of its foliage.
70
"RELIGIOUS" LAW !N THE COURTS
C.A. 191/1S
SKORNJK v. SKORNIK
(1954) 8 P.D. 141. 180
The issues in this appeal center on the validity of a civil marriage made abroad.
Witkon J.: There is no occasion … to apply religious law under art. 47 [of
the Palestine Order in Council] to some matter before ascertaining whether
the principles of private international law refer us to a particular foreign
law. In the present case, we have found that Polish law applies, in the
light of two of these principles, i.e. that relating to deciding incidental
questions and that rendering a change in nationality or residence of no
effect. That being so, Jewish law does not apply, despite its universal
character. Polish law applies, because it is the law which governed the
parties at the time and place of their marriage. The provisions of art.
64 of the Palestine Order in Council are in my opinion irrelevant here,
and it is only fortuitous that the "national" law of the litigant at the time
and place of the marriage is the same law which then applied at the place
of its celebration. Had, for example, private international law referred
us to some foreign law other than Polish, we would have applied that
law without regard to art. 64 and to the previous Polish nationality of
the parties. The only source for applying Polish law is, as I have said,
private international law that obtains in this country by virtue of art. 46
of the Order in Council.
My colleague, Agranat J., dealt with the question of relief that can be
granted to the respondent under Jewish law when her status as wife of the
appellant is recognised only by Polish law, and he distinguished between
the "right" to claim maintenance and the "amount" to which she is entitled.
I do not think it necessary to draw such a distinction and for this reason
I express no opinion on it. In my opinion the institution called "marriage"
possesses a universal character and under Jewish law it is no different
from what is usual in the rest of the civilized world. I have therefore no
hesitation in applying the wife's right of maintenance under Jewish law
to a woman whose marriage is based upon foreign law but is recognised
by the law of this country.
71
PART ONE: JEWISH LAW IN THE STATE OF ISRAEL
H.C. 143/62
FUNK SCHLESINGER v. THE MINISTER OF INTERIOR
(1963) 17 P.D. 225. 231, 238
Silberg J.: The question involved in these proceedings is whether to
recognise the petitioner as a married woman whose family name is
Schlesinger and so to register her in the Population Registry on the basis
of a civil marriage performed between her and Mr. Israel Schlesinger in
Cyprus on 21 December 1961. The petitioner is a Christian, a citizen of
Belgium, and Mr. Schlesinger is an Israeli Jew permanently resident here.
The respondent's refusal stems from the fact that he does not recognise
the legal force of the above marriage.
The questions before us are (a) does a marriage between a Jew and a
non-Jew take effect according to the laws of the State; and (b) if it is
found that it has no legal force, can or must the Registry Officer register
the petitioner as married on the basis of a civil marriage performed in
Cyprus?
I have stressed the words "according to the laws of the State" because
in Jewish law there is not a scintilla of doubt that such a marriage has no
legal effect.
Petitioner's counsel submitted on this point, at the very last moment
after we had informed him of an English judgment of some weeks ago, the
judgment in Lepre v. Lepre reported in the London "Times" of 6 December
1962, relying on a previous judgment of the English Court of Appeal in
Formosa v. Formosa (1962) 3 All E.R. 419, 423, (1962) 3 W.C.R. 1246.
In summary, these two judgments show that the courts in England will
not recognise an annulment of marriage ordered by a foreign court because
of a difference of religion of the married couple, since such annulment is
contrary to the principles of natural justice recognised in England. The
situation is the same here, argues petitioner's counsel; we, a civil secular
court, must ignore Jewish law to the extent that it invalidates a marriage
between a Jew and a non-Jewess, since that impugns the sense of natural
justice implanted in the hearts of the Israeli public.
I reject this submission. One court can say that the law of another
country impugns its sense of justice and ignore it entirely, but a judge in
that country cannot say that one of its laws outrages his own sense of justice
and he is therefore not prepared to uphold it. The law of every country,
particularly a democratic country with a parliamentary legislature, accords
– or is deemed to accord – with the accepted principles of natural justice
of that country. Otherwise laws would not be enacted, and if enacted would
be set aside under pressure of public opinion. It was in order for Denning
72
"RELIGIOUS" LAW IN THE COURTS
J. to say in Formosa (at 423) that if the man in the street in England
were asked whether a marriage between a Catholic and an Anglican were
valid or not, he would answer valid. It cannot, however, be said that every
Israeli, whether the man in the street or a member of the elite, would answer
the question of whether the marriage between a Jew and a non-Jewess
was valid in the affirmative; I believe that the greater part of the Israeli
public would answer it in the negative. Not only is it that we who sit in
judgment may not ignore existing law as long as it subsists but also, if the
truth be told, that our religious personal law does not conflict with the
outlook of the general Israeli public.
H.C. 301/63
SHTREIT v. SEPHARDI CHIEF RABBI et al.
(1964) 18(1) P.D.• 598. 608. 62~2I
After unsuccessful divorce proceedings by her husband, the petitioner asked for an
increase in the maintenance awarded to her by a "temporary "judgment ofthe Rabbinical
Court. The husband claimed that their marriage in Rumania in 1925 had been a
civil marriage only, a fact which the petitioner admitted, and the said judgment was
set aside, a course approved by the Rabbinical Appeals Court. The petitioner then
brought proceedings in the District Court for maintenance and was successful, the
husband consenting. Subsequently he brought divorce proceedings in the Rabbincal
Court, which ordered the petitioner to accept a get (bill of divorce), and should she
refuse, it said that the question of giving the husband permission to marry would
be considered. Before the petitioner could appeal, the Rabbinical Court gave such
permission, subject to confirmation by the Chief Rabbi. Both the husband and petitioner
appealed unsuccessfully.
Cohn J.: It is decided law and the established practice of this Court
that we do not sit in appeal against the religious courts; whatever they
decide, it is their religious law, and no civil court may call into doubt
their dispositions regarding the character of that religious law. It is easy
to imagine the complications and inconsistencies that would be created
if, for instance, the High Court of Justice were to deem it ultra vires for
a rabbinical court to follow in some matter the views of Tashbetz as
against Ribash (as Silberg J. puts it in his Personal Status in Israel, 174).
Already from very early times we have been commanded to observe the
rule that we must hearken to "the judges of those days" even when they
say right is left and left is right (Sifre 154 to Deut. 17: l 1) and we indeed
uphold this rule.
73
PART ONE: JEWISH LAW IN THE STATE OF JSRAEL
Counsel for the petitioner goes on to argue that we must set aside a
judgment of the rabbinical courts when contrary to the rule of natural
justice and private international law. Counsel regards it as contrary to
natural justice as well as private international law for the rabbinical
court to close its eyes to the rights and status the petitioner acquired
by virtue of a marriage which was lawful and of effect according to the
lex celebrationis. As for natural justice, I cannot see how and why it
is prejudiced when one statute treats a marriage celebrated in a certain
form as valid and effective whilst another law treats it as invalid and
ineffective. That is a frequent occurrence in law and all the rules of private
international law derive from it. It is very true that the law prevailing in
Israel does not permit the closing of one's eyes to the rights and status
a woman obtains by marrying a man in a marriage that was valid and
lawful where it was entered into, as I shall show later, but this has nothing
to do with natural justice at all. As for private international law, it is
decided law that religious courts are not bound by it ( C.A. 238 / 53 CohenBuslik v. Attorney-General (1954) 8P.D. 4, 19).
Silberg J.: The second answer to the said submission is that it is refuted by the
law itself: put very simply, the religious court is free from the prescriptions of
private international law. That was first decided in C.A. 158/37 Neussihin v.
Neussihin (1937) 4 P.L.R. 373 and that judgment has not yet become
extinct; on the contrary, it has been repeated a number of times in this
Court as well.
In Neussihin, as above, the Rabbinical Court confirmed the validity of
a marriage celebrated by religious rite in Germany. It was contended,
after the death of the husband, .:hat the confirmation was contrary to a
rule of private international law which provides that "validity of form is
dealt with according to the lex celebrationis", in that case German law,
which did not recognise the validity of a religious marriage. The Supreme
Court, however, rejected the argument, saying that.. .it would not be right for this Court to go into the validity of a
decision of the religious courts and consider whether, when dealing with
a marriage entered into abroad, the religious courts must introduce into
their own law the principles of private international law. The decision
was a determination of the status of the parties by the civil courts of
Palestine (at 376).
And in Cohen-Buslik v. Attorney General (1954) 8 P.D. 4, 19, it was
observed:
The religious court regards itself as completely free from these
74
"RELIGIOUS" LAW IN THE COURTS
"constraining" rules [of private international law] and it extends the
application of religious law – retrospectively and without restriction
– to acts done in the past by foreign nationals outside the frontiers of
the State, and it may so do (C.A. 158/37 Neussihin v. Neussihin (1937)
4 P.L.R. 373, 376).
Neither of the two judgments cited above explain why that is so, but that
deficiency has recently been filled by a judgment of this Court in Abu
Horash v. Sharai Court (Acre) (1964) 18 P.D. 589). The reason for the
"freedom" of the religious court from the universe of the rules of private
international law lies in the fact that these rules, as part of the Common
law, only became obligatory for the courts of this country by virtue of
art. 46 of the Palestine Order in Council, which opens with the words
"The jurisdiction of the Civil Courts shall be exercised in conformity with
the Ottoman law in force … and subject thereto .. .in conformity with the
substance of the Common law" etc.
The author of the Order in Council knew very well that Ottoman law
is distinguished by its exclusivity and universality, recognising no metes
or bounds either of time or place. He therefore freed it (and the religious
court), within the confines of its jurisdiction, from the Common law, that
embraces within it the rules of private international law.
The first submission of counsel for the petitioner must accordingly be
rejected.
As to the second submission of counsel regarding the permission given to
marry, as above, one cannot be assisted by the reason for rejection set out
above, that prejudice to the principles of natural justice is similar to ultra
vires. The plea of ultra vires does not fall within sec. 7(b){3) but rather sec.
7(b)(4) of the Courts Law, and it can be raised against the decisions of a
religious court.
But another prevailing answer exists, to the second submission of
petitioner's counsel, i.e. that it is founded on a mistaken conception, and
on this I have already expressed my views in Levi v. District Rabbinical
Court (1959) 13 P.D. 1182, 1193:
I wish and it is my duty to point out that I dissociate myself with
the greatest respect from the mistaken conception of "prejudice to
the principles of natural justice" which was voiced in the two above
judgments…. The High Court of Justice failed to distinguish between
prejudice to the basic principles of just proceedings, and what it regards
as unjust in the decision itself. In this, in my opinion, it was not
entitled to intervene, since the material content of religious law, to
the extent that it is recognised in principle by the law of the country,
does not necessarily have to find grace and favour in the eyes of the
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PART ONE: JEWISH LAW IN THE STATE OF ISRAEL
civil judge and ipso facto he cannot set aside a decision that in practice
upholds that material law.
2. Abrogation of Religious Norms by the Secular Legislator
H. C. 202/57
SIDIS v. SUPREME RABBINICAL COURT et al.
(1958) 12 P.D. 1528. 1532-1536
The issue in this case was a husband's right of usufruct in nikhsei melog (wife's estate in
which husband has usufruct without responsibility for loss or deterioration) belonging
to the wife, in view of the Women's Equal Rights Law, 1951.
Silberg J.: It follows that we are not released from the burden of considering
the question posed above. The question has two aspects.
(a) Does sec. 2 of the Women's Equal Rights Law put an end to the
institution of nikhsei melog and the latter therefore no longer obtain in
local positive law, as was observed, although only incidentally, in (1954) 8
P.D. 1020, 1023?
(b) If that is indeed the situation, does the husband retain a right of
usufruct in nikhsei melog created or acquired before the commencement
of the said Law?
It seems to me that the first question must be answered in the affirmative
and the second in the negative, as will be explained below.
The answer to the first question follows very simply and most clearly
from the terms of the Law, but we must first determine the juridical nature
of the institution "nikhsei melog" in Jewish law.
It is absolutely clear that the said right of usufruct is not – or is not only
– an obligatory right in personam, requiring the wife to hand over to her
husband the fruits of such property; rather, it is – or is also – a real right
in rem, which attaches as a lien to the property of the wife, conferring
upon the husband an element of ownership in the actual property. One
of the obvious indications of the real nature of this right is the fact that
after the husband has acquired the right to usufruct, i.e. after the woman
is actually married to him and not just betrothed, he can no longer waive
this right, because in the case of a married woman the husband's rights
have the same force as the wife's, or even superior force …
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"RELIGIOUS" LAW IN THE COURTS
This is the manner of the laws of Israel: they distinguish, as does every
enlightened legal system, between a "right to something" (a right to sue,
to demand, a right to a debt) and a "right in something" (ownership, lien,
etc.). The former may be renounced or waived or forgiven, but the latter
may be conferred or assigned only by means of sale, gift, endowment, etc.
If a man says to another (Rashi: to his partner), 'I have no claim
whatsoever on this field, I have no concern in it and I entirely dissociate
myself from it', his statement is of no effect (Ketubot 83a; Baba Batra 43a,
etc.)
His statement is of no effect: For this is not the language of a gift,
where he says, 'I shall have no part in this', for it is his, despite
himself, until he says to his friend, 'My field is given to you, my field is
sold to you, my field is abandoned to whosoever wishes it' (Rashbam
to Baba Batra 49a).
The right of usufruct of nikhsei melog, too, is not a "right to something"
but rather, a "right in something", as expressed concisely by one of
the Tosafists: "The fruits are different; for his rights have the same
force as hers and he gains a right in the property itself'' ( Tosafot to
Ketubot 47b).
The right of the husband is not restricted to the usufruct, but extends…to
the wife's ownership of the property itself, such that his "property in the
fruits" is almost a "property in the possessions" themselves. This flows
from a regulation known as the "regulation of Usha" (Usha was one of
the ten places to which the Sanhedrin was exiled: Rosh haShanah: 31ab):
For R. Jose b. Hanina said: It was enacted at Usha that if a woman
disposes of her melog possessions during the lifetime of her husband
and subsequently dies, the husband will be entitled to recover them
from the hands of the purchasers (Baba Kamma 88b… and see also
Even haEzer 90:17, and Rema ad Joe.).
A regulation was made in Usha: Even though in general, it is not like
a real right in the property, the Sages fortified the husband's lien over
his wife's property… so that he is like a buyer with the first right (Rashi,
Baba Kamma 88b).
The juridical construction of the idea is that because of the "fortification"
given to the husband's lien, he is considered as if he bought the property,
as a buyer with the first right, for the period after her death if she should
die during his lifetime. However, the concrete result is that even though
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PART ONE: JEWISH LAW IN THE STATE OF ISRAEL
the property belongs to her and she can sell it to whosoever she wants,
nevertheless, because of the possibility that the husband will outlive her
and claim it back from the buyer by virtue of the Regulation of Usha, she
can only sell a "right of usage" of the property … she cannot sell it at its
full price, but rather, at a price proportional to the percentage probability
that she will outlive her husband. If the price of the property was, for
example, 10,000 lirot, and the chance that the husband would predecease
her was only thirty percent because she was old or ill, then she would get
a maximum of 3,000 Iirot for the property. The result is that the right
of usufruct conferred upon the husband influences and restricts, from
both a purely legal and an economic-practical point of view, her control
over the property. Sale of the property by a wife who is still married to
her husband is, in fact, not a certain sale but a doubtful sale, the economic
value of the doubt being in keeping with the rate of the chance that the
husband will die in her lifetime. Thus, after the Regulation of Usha,
the right of usufruct is not merely a lien on the property of the wife,
but it affects the wife's very ownership of the property.
In view of the above, there is no escaping the conclusion that as a result of
sec. 2 of the Women's Equal Rights Law, the husband's right to usufruct of
his wife's nikhsei melog has, from a secular point of view, been rescinded.
The section states:
A married woman shall be fully competent to own and deal with property
as if she were unmarried; her rights in property acquired before her
marriage shall not be affected by her marriage.
From the opening phrases alone, it is possible to conclude that the Israeli
legislature stipulates and demands that a married woman has capacity to
dispose of her property as if she were unmarried, whereas under Jewish
law concerning nikhsei melog, her control is restricted, from the point
of view of the legal effect, vis-a-vis her previous situation, even with
respect to the capital that belongs to her, by virtue of the Regulation of
Usha. Even if we do not view this proof as sufficiently conclusive, due
to the fact that the Hebrew term "kashrut" has not been defined, so that
it is uncertain whether what is meant is legal competence (as I believe), or
personal capacity – see Schereschewsky, Family Law, 205-6 – the closing
phrases of the section definitely lead to the said conclusion:
… her rights in property acquired before her marriage shall not be affected
by her marriage.
Could this stipulation possibly coexist with the husband's right of usufruct
in Jewish law? I believe it could not! Were the husband's right only an
obligatory, personal right, effective as against the wife rather than her
78
"RELIGIOUS" LAW IN THE COURTS
property, I would remain silent. Were that so, it could be said that the
wife, while married to her husband, controls her property completely,
with no restrictions … she has a right both in the property itself and in its
fruits, but she owes an obligation to her husband and must assign to him
the fruits that belong to her. As we have seen, however, this is not the
character of the right under Jewish law. It is – or at least, is also – a
real right in the wife's property, which takes the form of a lien which was
"fortified" by the Regulation of Usha, and restricts the right of ownership
which the woman enjoyed prior to her marriage. When she was unmarried,
she had complete, total ownership, and she was entitled to the usufruct,
whether for herself, or by way of leasing, etc. Now, after her marriage,
this right has been taken away from her and given to her husband, and
she retains only an abstract right of ownership … and even this ownership
is almost beyond the woman's reach, since she can only sell it as a "right
of usage", as we saw above, and she could have sold it as such had
it been a "right to something" rather than a "right in something,", just as she
sells, for example, her ketubah (marriage document) (see M. Makkot 3a).
It is clear, therefore, that because of the right of usufruct granted to
the husband under Jewish law, the property of the wife acquired before
marriage is adversely affected, and the conclusion is necessarily that in the
wake of sec. 2 (the closing phrases), this adverse effect has been abolished,
and henceforth "the institution of nikhsei melog no longer exists in local
positive law", as stated in Sidis v. Chief Execution Officer et al. (1954) 8
P.D. 1020, 1026.
This is not the view of Dr. Schereschewsky (op. cit.), upon which counsel
for the wife relied. In discussing the closing phrases of sec. 2 [of the Law]
he says:
Neither does the conclusion of sec. 2 of the Law contain anything which
might change the said legal position [i.e. the legal position extant before
enactment of the Law].
This is also the situation under Jewish law. As we have already seen,
the husband has no rights in the actual property, per se, of his wife.
The fruits which belong to him by virtue of the marital bond do
not fall within the category of property acquired by the woman prior
to the marriage, for the husband only gets those fruits which had
their inception after the marriage. Whatever belonged to the woman
before the marriage, whether it was the capital or whether it was the
fruits, is, as far as the husband is concerned, to be considered as
capital, and it is only the fruits thereof that will be his. These fruits
do not exist prior to the marriage.
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PART ONE: JEWISH LAW IN THE STATE OF ISRAEL
Property which she acquired prior to the marriage is not, therefore,
adversely affected under Jewish law by virtue of the marital bond (Zoe.
cit. 207, 208).
With all great respect to the learned author, I cannot agree with him,
for it is difficult for me to understand the logic of this argument. It seems
to contain a non sequitur. It is perfectly true that the fruits acquired by the
woman prior to marriage are, in the legal sense, not fruits but capital, and
the husband enjoys only the fruits of this capital… similarly, it is true that
the husband's right after marriage is always effective for fruits that have
not yet come into being in the ownership of the wife, for this right prevents
the fruits from falling into the domain of the woman. But how may it
be concluded from this that the marital bond has no adverse effect on the
property of the wife? And this adverse effect, as hinted above, relates
to something called "property"… .In my opinion, therefore, there is not a
shadow of doubt that following the enactment of sec. 2, from a secular legal
viewpoint the said right of usufruct has been abolished in this country…
C.A. 313/59
BALABANv.BALABAN
(1960) 14 P.D. 285, 287, 291
Here a wife claimed maintenance from her husband, even though the income from her
own property was enough for her upkeep. Jewish law generally charges the husband to
maintain his wife even when she has adequate means to be self-sufficient.
Silberg J.: In my opinion, counsel for the husband was more correct in his
argument than counsel for the wife. A secular legislature cannot set aside
a norm of religious Jaw, since it is not the source of religious enactments.
All it can do by virtue of the sovereignty of the State is to order the courts,
including the rabbinical courts, not to decide according to the norm. This
is precisely what the Israeli legislature did in the Women's Equal Rights
Law. But what is the subject matter of this secular enactment? The usufruct
of nikhsei melog, and not maintenance of a wife. The latter has always been
and is at present given over to the governance of religious law, religious
law in toto. It follows that when a husband claims the usufruct in nikhsei
melog, the claim will be dismissed both by a civil court and by a religious
court, as a consequence of the Women's Equal Rights Law (see sec. 7). If,
however, a wife who has a large income from her nikhsei melog claims
80
"RELIGIOUS" LAW IN THE COURTS
maintenance, her claim will also be dismissed both by a religious court
and by a civil court because the husband may say that although his right
to usufruct has been abolished under sec. 2 of the Law, the "reflex",
the impact which it exerts indirectly on a claim for maintenance, has not
been abolished and the same is still dealt with according to the norms
of religious law.
From the viewpoint of common sense and simple practical logic, and
reason as well, there is something absurd in the result which counsel for
the wife attempts to achieve. The wife cannot say, ''Grasp Jewish law and
also the secular law, do not stay your hand", since "no man is entitled
to enjoy two tables" and "man" includes "woman". Sec. 2 of the Law strove
to deliver and liberate a "woman" from the "subjection", to the advantage
of her husband, that looms over her private possessions, but not further.
It did not wish to extend thereby the potential for claims for maintenance,
as that is beyond the conception of equal rights for the sexes.
Olshan P.: No one will dispute that a married woman may now do with
her nikhsei melog what she wishes without any restriction or encumbrance.
Assume that the appellant had sold her orchard a day before she commenced
proceedings for maintenance, and she now possesses a sum of money,
i.e. the proceeds of the sale. Would the respondent be released from his
obligation to pay maintenance because she had done something which the
Law permits her to do?
As for the question of how a woman who has income of her own can
possibly be entitled to compel her husband to provide maintenance, this
question does not arise necessarily in connection with nikhsei melog but in
respect of any woman whose husband is bound to maintain her even when
she has sufficient of her own…
It is true that a marriage of Jews in Israel must be carried out in
accordance with religious law and that the secular legislature has not
required the religious court to take account of private international law.
Hence in respect of a marriage celebrated in Israel – to which religious
law applies exclusively – the court before which the question posed by
Silberg J. arises will be required to answer it as he did. Had, however,
the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 1953,
contained a provision requiring that account be taken also of private
international law, the court would then be bound to answer that the
marriage takes effect, since the situation would be similar to the one
before us, in which the legislature has ordered that the religious obligation
regarding nikhsei melog be ignored.
I find no authority for saying that a secular legislature cannot set aside a
norm of religious law. In the absence of legislation, it is omnipotent. Again,
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PART ONE: JEWISH LAW IN THE STATE OF ISRAEL
in the present case, the secular legislature did not set aside a religious norm
for those who actually wish to follow it. Sec. 7 says expressly, " … unless all
the parties are eighteen years of age or more and have consented before
the tribunal, of their own free will, to have their case tried according to the
laws of their community." The section only prohibits compelling a person
to act in accordance with a particular religious norm.
3. Binding Force of Rabbinical Court Decisions upon Secular Courts.
F.H. 23/69
JOSEPH v. JOSEPH
(1970) 24(!) P.D. 792,805, 809-812
The judgment involved in this Further Hearing held by a majority that, with respect to
the duty of maintenance, account is to be taken of the woman's earnings.
Kister J.: It is appropriate to cite here the responsum of Maharsham I
mentioned above (4:992) and the words of Hazan Ish (Even haEzer 70:5
and 6; 68:2 and 3) according to whom a woman who claims maintenance
from her husband cannot obtain any profit from her own labours_
Counsel for the applicant, it should be noted, was asked whether he
knows of any judgment of the Supreme Rabbinical Court or of a District
Rabbinical Court (even if unpublished) which awarded maintenance to
a woman when she earns from her own work…. He could not point to
any such judgment. As a result, the conclusion is that the rabbinical courts
in Israel decide without exception as stated above. And that is enough
for me to decide likewise.
We must, in my opinion, accept this rule as decided by the rabbinical
courts in Israel, as we must accept the rule that, in spite of the change
in local usage and in spite of the easing of domestic work, a woman is
not bound to go to work in a factory or office in order to assist her
husband in providing for the family. The reason why we must act in these
matters in accordance with the judgments of the rabbinical courts can be
found in the laws of the Torah which command us to hearken to the sages
of the Torah of each generation: "Jepthah in his generation is like Samuel
in his" (see Sefer haHinukh, Commandments 495 and 496).
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"RELIGIOUS" LAW IN THE COURTS
The authority of the scholars of the Torah and the rabbinical courts
is nevertheless restricted to no small degree and much has been written
about it in the halakhic literature. I will content myself with mentioning
The Works of Maharatz Hayut, vol. I, especially the chapter Mishpat
haHora'ah, 372 ff.
The present case involves regulations touching upon the financial
interests of spouses and the construction thereof. The rabbinical courts
are empowered to make such regulations, as was done in earlier periods
and in other countries. Recently, regulations have been promulgated in
Israel regarding the maintenance of children up to the age of 15 and
Matrimonial Regulations. It is most certainly clear that they may interpret
the regulations of the Sages in binding fashion.
Hazon Ish, too (Even haEzer 63:7), in dealing with the Regulations of
Worms, Speyer and Mainz, writes that "the regulations by the Sages of
each generation are as binding as the regulations made by the Sages of the
Talmud…"
Cohn J.: My learned friend Kister J. says that the case law I put forward
is in conflict with the decisions of the rabbinical courts and that in matters
in which it is for us to decide according to religious law we must follow
the rabbinical courts, since, according to religious law, we are commanded
"to hearken to the Sages of the Torah of each generation: •Jepthah in his
generation is like Samuel in his'." I agree, with th~ greatest of respect, that
the fact that people are lesser than of yore does not derogate from the
authority and power of the courts of our own days. The rule, however,
about "the judge who shall be in those days" (Deut. 17:9) applies not only
to the rabbinical courts but to every judge in Israel: witness the three
questionable characters, Jerubaal, Bedan and Jepthah, who are compared
respectively with Moses, Aaron and Samuel, to teach us that the most
worthless, once appointed as a leader of the public, is like the mightiest
of the mighty (Rosh haShanah 25b). The Torah is not in heaven so as
to require the rabbinical court to raise us unto heaven to receive the
Torah for us and proclaim it.
Apart, however, from all the considerations intrinsic to the nature of
Jewish law, it seems to me that we cannot recognise the case law of
the rabbinical courts as binding precedent for another decisive reason.
The rabbinical courts indeed adjudicate according to Jewish law with all
mental acuteness and proficiency, but they entirely overlook the law of
the State. Very infrequently does one find in a rabbinical judgment any
mention of a law of the Knesset or an enactment from Mandatory times,
when there arises a question about the power of the court to entertain a
matter brought before it (see for example, 1 P.D.R. 355; 2 P.D.R. 38 and
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PART ONE: JEWISH LAW IN THE STATE OF JSRAEL
285). I have searched in vain and have not discovered any reliance upon
State law in matters pending before the religious courts. The Women's
Equal Rights Law, for instance, is readily available to all. How can the
decision of a rabbinical court be taken as a guide or as binding regarding
the rights or obligations of women when the legislative act of the Knesset
on that topic is in its eyes irrelevant? As long as State law is disregarded,
the secular courts may not follow the rabbinical courts and accept their
decisions as final and unquestionable.
Furthermore, where a decision has to be made "according to local custom"
(as here), the rabbinical court has no advantage either in knowledge or in
religious authority over the secular court. The latter cannot be bound by
the views of the former over what is customary when, on the evidence or
the submissions made before it, it reaches a different conclusion.
The situation is different when the Chief Rabbinate, as a legislative body
by virtue of Jewish law, makes regulations, provided that these are not in
conflict with any statutory enactment, including first and foremost the
Women's Equal Rights Law. But sufficient unto the day the goodness and
blessing thereof; that day seemingly has not yet arrived.
Y. Kahan J.: I concur with respect in the judgment of my learned friend
Kister J. That would be enough but since the judgments of Cohn J. and
Berinson J. consider the question of the binding or non-binding force of
the judgments of the rabbinical courts in matters of halakhah in respect of
the civil court, I find it essential to add some remarks on the subject.
The problem has been dealt with recently in a number of articles and notes
critical of the position taken by several judges of this Court, permitting a
secular court to hold that a rabbinical court has erred on a matter of
halakhah. (I. Englard, "The Chief Rabbinate Council and the Supreme
Court", 22 haPraklit (1965/6) 68; M. Shawa, "Jurisdiction of Rabbinical
and Civil Courts in Matrimonial Cases" (C.A. 359/67) 25 haPraklit (1969)
617: I. Englard, "The Integration of Jewish Law in the Civil Legal System",
in Jewish Law in the State of Israel ed. Y. Bazak, I IO).
These articles well explain the substantive difference between a judgment
of a secular court and a judgment of a rabbinical court. On this point,
Shawa says inter a/ia (at 624):
It appears to me that the concept of "error in law" is one borrowed from
secular law where a separation between the legislative arm and the judicial
arm exists, and the task of the judge is merely to interpret the law. For
this reason, when an interpretation is not correct, it is possible to speak
of "an error in law". As against that, Jewish law vests in the rabbinical
court not only jurisdiction but also legislative power, since Scripture
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"RELIGIOUS" LAW IN THE COURTS
speaks of "the law which they shall teach thee" (Deut. 17:11). And these
are, in the words of Maimonides (M.T. Mamrim 1:2) "the ordinances,
decrees and customs which the Supreme Rabbinical Court teach the
public in order to strengthen religion and ensure public order." There
can be no question that these come under legislation or, if you wish,
subordinate legislation.
In Shtreit v. Sephardi Chief Rabbi et al. (see above (1964) 18(1) P.D. 598,
at 608). Cohn J. observed as follows in respect of the powers of the Supreme
Court regarding the rabbinical courts:
It is decided law and the established practice of this Court that we do
not sit in appeal against the rabbinical courts; whatever they decide,
it is their religious law, and no civil court may call into doubt their
dispositions regarding the character of that religious law. It is easy to
imagine the complications and inconsistencies that would be created if,
for instance, the High Court of Justice were to deem it ultra vires for
a rabbinical court to follow in some matter the views of Tashbetz as
against Ribash (as Silberg J. puts it in his Personal Status in Israel,
p. 174). Already from very early times we have been commanded to
observe the rule that we must hearken to "the judges of those days"
even when they say right is left and left is right (Sifre to Shoftim 154).
The foregoing remarks were made in connection with the power of review
which the Supreme Court has over the rabbinical courts, but the above
reasoning is also pertinent regarding the power of every civil court to hold
that a rabbinical court has erred in a matter of law.
Another question arises in the present context. Are the judges of a civil
court to be regarded as dayanim (the Jewish law term for judges) who
"were in those days", irrespective of whether we live in the generation of
Samuel or of Jepthah? I cite from Englard 's "The Integration of Jewish
Law in the Civil Legal System" (op. cit. 113-14):
The fact, however, that ha:lakhic decision is a human act does not involve
the secularisation of religious law. The halakhah was not given over to
the ordinary man but to the Sage who is God-fearing. The sources
stress that only those who accept the yoke of the Kingdom of Heaven and
enter upon the task of decision out of a feeling of responsibility towards
the Divine, only such are treated as the authoritative decisors of the
halakhah; the suprahuman force of mortal creation is conditioned upon
the complete personal subjection of the decisors to the halakhah. Thus
paradoxically, those who are most closely bound by the halakhah hold
sway over it.
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In principle, the halakhah recognises the circumscribed authority of
legislation to vary existing provisions, but this authority, the bounds of
which are most carefully defined, is given exclusively to those institutions
that accept the binding force of religious law.
Whoever urges that the judges of a civil court, who do not accept the burden
of religious law, can assume the mantle of decisors of the halakhah must
face these objections and find an answer to them. In the civil court, it
must be added, there are also judges who are not Jews, and since far be
it from us to discriminate between judges, we must ask how the dictum
"Jepthah in his generation is like Samuel in his", on which inter alia Cohn
J. relied, applies to a court having a judge who is not a Jew?
I did not write the foregoing in order to establish a position on the above
question but to show that the problem is not simple, its implications are
many and complex and it deserves profound and basic deliberation. The
criticism levelled by my learned friends against the approach taken by
the rabbinical court to the decisions of the civil courts is not relevant at
all with regard to the said question, since both Berinson J. and I concur
with the view of Kister J. that in the case now before us, the rabbinical
court did not "err in law". Obviously all that we two have said about
the powers of the civil court on the matter of deciding the halakhah is
obiter. If I have been drawn into such obiter dicta, it is only in order to
indicate some of the problems that arise in the matter.
F.H. 10/69
BORONOVKSY v. CHIEF RABBIS OF ISRAEL et al.
(1971) 25(1) P.D. 1, 15
A District Rabbinical Court ordered spouses to divorce on the ground that their married
life had completely broken down. The woman refused to receive a get (Bill of Divorce)
after the husband had duly deposited it together with the monetary compensation
ordered by the court. The Supreme Rabbinical Court granted the appeal of the husband,
against the refusal of the District Rabbinical Court to grant him a heter nisu'in,
i.e. permission to marry a second wife while still married to the first, emphasising
that the woman's refusal to accept the divorce was inspired by feelings of revenge. The
civil Supreme Court held, contrary to the decision in Shtreit (see (1964) 18(1) P.D. 598
above), that the Chief Rabbinate had the power to authorise the giving of a heter
nisu'infor the purpose of sec. 5 of the Penal Law Amendment (Bigamy) Law, 1959.
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"RELIGIOUS" LAW IN THE COURTS
Cohn J.: It is decided law that when a rabbinical court disregards a
statutory provision it acts ultra vires, if the statute concerns the matter
dealt with by the rabbinical court, and this whatever the religious law
thereon. As my learned friend Berinson J. said:
My friend [the late Goitein J.J asks what is the outcome of a judgment
given by a rabbinical court when it is clear that the latter disregarded
certain applicable statutory provisions – in the present case, the
Women's Equal Rights Law, 1951 – and his answer is that where
the judgment shows on the face of it that the judges (dayanim) paid no
heed to the law of the State, execution of the judgment may perhaps
be avoided on the argument that the rabbinical court decided as it did
in a manner beyond its powers. Whilst I concur in that, it does not,
with all respect, seem to me that the answer is exhaustive of the matter.
In addition to the argument of lack of jurisdiction to effect execution,
there are other means of attacking an invalid judgment given without
authority… .In my opinion the way to invalidate a judgment as above
does not differ and is not inferior to the normal ways that an interested
party can pursue in order to invalidate a decision given ultra vires by
a lower tribunal.. ..To sum up, I think that an ultra vires decision of
a rabbinical court, for being contrary to the provisions of a secular
law applying to that court, can be voided like every other like decision
of an inferior tribunal that is uitra vires.
87
Part Two
GENERAL PRINCIPLES
CONTENTS
Chapter One: LEGISLATION
1.
2.
3.
4.
Primary and Secondary Legislation
Local Regulation – Takkanot haKahal
"Forewarning" – Retroactive Penal Legislation
Status of Deceased Person
93
93
93
93
Chapter Two: CUSTOM
1.
2.
3.
4.
5.
Custom as a Source of Law – Situmta
Custom Determinative in Cases of Doubt
Conditions Determinative of Custom
Conflict of Customs as Between Communities
Custom in Labour Law
95
97
98
101
!02
Chapter Three: FOREIGN LAW
1. The Law of the State is the Law
103
Chapter Four: PRECEDENT
1. The Principle of Binding Precedent
2. Care Required When Relying on Precedent
l09
113
Chapter Five: CIRCUMVENTION AND FICTION
1. Avoidance of Statutory Law and Legal Fiction
2. Fiction Limited to Particular Cases
91
114
II8
CONTENTS
Chapter Six: LEGAL COMPLEXITY
I. "Half Slave and Half Freeman"
119
Chapter Seven: MORALITY
I. Immoral Contracts
2. Moral Considerations in Medical Experiments
3. The Duty to Rescue and Self-Jeopardy
4. The Duty to Rescue Despite Protest
5. Acting Beyond the Strict Letter of the Law
6. Moral Basis for Duty of Care in Torts
7. Moral Duty of Employer to Pay Compensation
8. Moral Duty to Chastize Sinners
9. "Clean Hands and Pure Heart" as a Condition for
Application to the High Court of Justice
10. Middat S'dom
120
120
121
123
125
131
131
131
132
133
Chapter Eight: WEIGHTS AND MEASURES
1. Weights and Measures in Law and the Doing of
Justice
134
Chapter Nine: CONDUCT IN TIMES OF WAR
l. Prohibition Against Waste
92
135
Chapter One
LEGISLATION
1. Primary and Secondary Legislation
See: KATLAN v. PRISONS SERVICE et al, Part 3, Social and Administrative Regulation, p.
199.
2. Local Regulation See; VILOZNI
Takkanot haKahal
v. SUPREME RABBINICAL COURT, JERUSALEM,
3. "Forewarning" –
et al, p. 103.
Retroactive Penal Legislation
See: SYLVESTER V. ATTORNEY-GENERAL, Part 6, Penal Law, p. 429.
4. Status of Deceased Person
H.C. 98/Sl
ZIGELMAN v. CHAIRMAN AND MEMBERS OF THE TEL AVIV RABBINICAL
COURT eta/.
(1953) 7 P.D. 606, 612-613
Silberg J.: And so … to the main question in dispute between the parties,
which is this: whether the deceased was, at the time of his demise in January
93
PART TWO: GENERAL PRINCIPLES
1952, an Israeli citizen or not. The grey area is … whether the retroactivity
of sec. 2(b)(2) of the Citizenship Law extends to people who died before
the enactment of that Law.
It is my opinion that the retroactive applicability of Israeli citizenship
does not extend to deceased persons. Such a conclusion could apparently
have been drawn quite simply from the language of the Law, sec. 2(c)(l),
which states:
(c) This section does not apply (l) To whoever ceased to be a resident prior to the commencement of
this Law.
A dead person is most certainly no longer a resident in the State of
Israel. But I am prepared to assume … that the legislature did not intend
to subsume deceased persons in this general – too general – term, and
that the intention here was to a person who had ceased voluntarily to
reside in Israel. Nevertheless, my conclusion is the same, for two principal
reasons:
(a) The Citizenship Law is not only retroactive: it looks forward and
backward at the same time. The Law was passed in the Knesset on April l,
1952, was published in the official Gazette on April 8, 1952, and stipulated
that it "would come into force on 14.7.52". This means that this is not an
authentic legislative declaration to the effect that certain persons were
already considered Israeli citizens. Rather, it constitutes the conferral of the
status of citizen at a certain point in time in the future, after which, when
this future becomes the present, it will extend backwards, retroactively,
to the past, reaching the date of the Establishment of the State, or the
date of the person's immigration, or some other date, in accordance
with secs. 2(b)(l), (2), (3) and (4) of the Law. And that being so, because
we are dealing with the award of citizenship, how can a new status
be awarded to someone who is no longer alive? Citizenship, by its very
nature, is linked to personhood; moreover, "Amongst the dead I am free
– once a man is dead he is free from religious duties" (Shabbat 151b).
And of course, he is free from the laws as well, and no law can confer any
status whatsoever upon him.
94
Chapter Two ·.
CUSTOM
1. Custom as a Source of Law See:
KHALATI v. UZAN,
Situmta
Part 8, Obligations, p.
CA. 2/ 77
AZUGI v. AZUGI
(1979) 33(3) P.D. I, 4, 16-17
Elon J ..· Two questions arise in the present appeal. (a) Do the rules
regarding joint property, as these have evolved in the decisions of this
Court, attach in principle to financial relations between the spouses, the
parties to these proceedings? (b) If they do, are these rules to be applied
to their affairs in view of the facts and the relationship between them,
and to what extent? I shall deal with these questions in the order they
have been posed, since that is the logical course …
Financial relations between spouses, like all monetary matters, are
characterised by the principle of freedom of contract and treated as jus
dispositivum or, as this idea is expressed in Jewish law, "in financial
matters a person may contract out of the provisions of the Torah" (see
T. Kiddushin 3:7-8). In fact, a considerable portion of the laws relating to
freedom of stipulation in Jewish law are originally found in sources dealing
with the financial relations between spouses (see, e.g., Ketubot 56a; M. T.
/shut 6:9-10; 12:6), and extensive use was made of the principle of freedom
of contractual stipulation in these relations down through the ages, in the
wake of the social and economic changes that had occurred (see M. Elon,
Jewish Law, Part I, 159 ff. and note 102).
In financial relations between spouses, as with all financial matters, the
force of custom is great, since it may supplement existing halakhah when
reality poses questions and problems that have no solution in the existing
halakhah, and new norms may be laid down that are contrary thereto by
95
PART TWO: GENERAL PRINCIPLES
virtue of the principle that "custom displaces the halakhah in financial
matters" (Y. Baba Metzia 7:1; Elon, op. cit., Part 2, 726 ff., 732 ff.).
Extensive use was also made of custom in the regulation of the financial
relations between spouses (ibid., 739 ff. and note 61). As Maimonides (op.
cit. 23:12) puts it:
In all these and like matters, national custom is a major principle
of decision, provided that the custom is common and widespread
throughout the country (see also Even haEzer 66:11; for the conditions
necessary to prove a custom, see Elon, op. cit., 752 ff.).
Another decisive element for the regulation of financial relations is the
assessment of public opinion on the question. As Kister J. has said:
There are many rules in Jewish law in connection with transactions
between spouses, some of which are based on an appraisal of public
opinion in such cases. There are also rules in Jewish law that allow the
court to decide a variety of matters according to assessment of public
opinion, and in such matters local and contemporary usage are also to
be taken into account (see Judgments of the Rabbinical Courts Vol. I,
113, 117). Regarding assessment for the purpose of testing the nature
of a contract between husband and wife, no general custom is actually
necessary: even a local practice and usage among people of the same
type as the spouses may be important in determining what the spouses
had in mind.
In this regard, "one must also bear in mind that in this country various
institutions have greatly encouraged the tendency to a regime of joint
property between spouses" (ibid. at 615).
To proceed, I would observe that Jewish law has also created and
developed much in this area of the law, in the wake of social and economic
changes that occurred in the different places where Jews at various times
were dispersed, by means of the legal source of takkanot promulgated
by the halakhic authorities and community leaders. The number of these
regulations is great, and some of them are known in halakhic literature by
the name of the place where they were first instituted. For instance, the
regulations that originated mainly in early thirteenth century Germany are
called the Regulations of Shum, the Hebrew acronym for the communities of
Speyer, Worms and Mainz, the heads of which participated in the meetings
at which these Regulations were made. At about the same time, a variety
of regulations were enacted in the great Jewish centre of Spain, called the
Regulations of Toledo and Molina. Later we hear of the Regulations of
Algier and of Fez in Morocco (see Elon, op. cit. 632 ff., 677 ff.; S. Assaf,
The Various Regulations and Customs Relating to the Husband Succeeding
96
CUSTOM
His Wife, Vol. 1, 79 ff.; Z. Warhaftig, "Joint Property of Husband and
Wife," in Proceedings of the Fourth World Congress on the Science of
Judaism (1967) 189 ff.). Likewise, many of the elements and concepts
lying behind the rules on joint property, as crystallized in the decisions
of this Court on which we shall dwell later, have also been the basis for
the creation of new rules in this field in the case law of the rabbinical courts
in Israel, beginning in the early nineteen-forties. (The first indications
of the process may be dated further back but this is not the place to
expand on the matter.) I am referring to the "compensation" to which
a woman is entitled in the event of divorce, in addition to her rights
under her ketubah (marriage contract), as a result of which she will
receive part of the possessions acquired during marriage. In a judgment
of the Supreme Rabbinical Court in 1945 (Collection of Rabbinical Court
Appellate Judgments, ed. Z. Warhaftig (1950) 83) it was held that the
award of such compensation was the practice in the rabbinical courts, and
a request was voiced indirectly that the woman's share in the property
acquired by the husband during marriage, for the purpose of division
upon divorce, should also be regulated by means of a takkanah of the
Chief Rabbinate (ibid., 85), but no action was taken on the request (see
M. Elon, Religious Legislation, 165 ff.).
See: KATAN et al v. MUNICIPALITY OF HOLON, below.
See: VILOZNI
V.
SUPREME RABBINICAi.. COURT, JERUSALEM. et al, p. 103.
2. Custom Determinative in Cases of Doubt
H. C. 442/77
KATAN v. MUNICIPALITY OF HOLON et al.
(1978) 32(1) P.D. 494,495,498
This petition involved the question of whether those participating in a public tender
must attach a bank guarantee to their offer.
Elon J.: On the day on which we heard the submissions of counsel, we
97
PART TWO: GENERAL PRINCIPLES
notified them of our decision to dismiss the order nisi and the interlocutory
order, as well as of our decision as to costs …. Following are the reasons for
our decision.
The petition will be decided in accordance with our answer to the question
of whether it was incumbent upon those participating in the tender to
attach to their offers a bank guarantee …
According to the respondents, the practice of attaching a guarantee
when tendering an offer exists only when the tender is public and not of a
minor nature. The petitioners do not contest the existence of this practice,
but argue that in the present instance of a minor tender the deposit of
a guarantee was also necessary. We accept the fact that a practice may
be decisive where there is doubt or uncertainty. That is also basic to the
idea embodied in one of the principles of Jewish law relating to custom
and usage: "Any rule about which the court is in doubt and the nature
of which is not certain, is to be determined by observing and following
what the public usually does in the matter" (Y. Pe'ah 7:5, 34a; Y. Ma'aser
Sheni 5:2, 30a; M. Elon, Jewish Law, Part 2, 714 and 732). Thus, too,
did R. Shlomo ben Shimon Duran decide regarding the interpretation of
documents: "Wherever the language of a deed is uncertain, we follow local
custom as to how the matter is dealt with" (Resp. Rashbash 354).
3. Conditions Determinative of Custom
C.A. l00i49
ESTATE OF MILLER v. MILLER
(1951) 5 PD 1301, 13D5, 1307, 1312-1313
Assaf J.: This is an appeal against a decision of the Tel Aviv District
Court charging the appellant, the estate of Meir Joel Miller, to pay the
respondent, Mrs. Rivka Miller, a monthly sum of IL. 50 for the duration of
her widowhood. The District Court held that in this matter it must decide
in accordance with the law customary in the place where the deceased was
resident, which in this case is Jewish law. Although the deceased was a
British national, and as a result of her marriage to him (on 27 February
1941) the respondent also acquired British nationality, the deceased came
to this country in 1934, after having wound up his affairs in England, and
98
CUSTOM
from the day of his arrival until his death (on 12 November 1947) he had
not left the country. Whilst still in England he had bought a burial plot for
himself and his first wife on the Mount of Olives. In this country he engaged
in trade and acquired much wealth. All these facts show, in the opinion of
the learned judge who presided, that the deceased was determined to make
his permanent home in Israel. Notwithstanding that in his will he directed
that his wife should be paid her ketubah (i.e. the settlement stipulated in
her marriage document] plus an additional IL. 100, the judge charged the
estate of the deceased with the widow's maintenance, in accordance with
the decided law in Yoreh De'ah 93:3:
The widow is maintained out of the assets of the heirs during widowhood
even if it is not so provided in her ketubah; and even when (the husband)
directed that upon death his widow should not be maintained out of his
property, he is not heeded.
Since the deceased was a wealthy man who did not deprive himself
or his wife in their domestic life, the learned judge awarded the widow
maintenance of IL. 50 a month and also directed that this sum not be
reduced by the rent she received from letting part of her apartment.
The principal question facing us is, therefore, whether the widow is to
be maintained out of the property of her deceased husband as long as she
remains a widow, against the wishes of the heirs, or whether the heirs, or
the executor of the husband's estate, can deny her maintenance by payment
of her ketubah. This question is an old one, dating back to the period of
the Second Temple. It is right and proper to trace its course briefly from
its origins down to the present time and draw practical conclusions.
From the time of the Crusades, until those expelled from Spain came to
this country, there are almost no forms of ketubot or responsa or other
authoritative pronouncements whose provenance is the Land of Israel.
The Jewish settlement in this period was very meagre in every respect. In
the sixteenth century, however, a number of great scholars in Jerusalem
and Safed left behind collections of important responsa from which we
may gather that even then the custom existed that a widow be maintained
out of her husband's property. See for example Resp. Mabit I:295, 312;
2: 124; 3:40, 185; and the responsa of R. Moshe Galanti 121, who thinks
that this was not simply a local usage but a universal practice; this
usage persisted amongst Sephardi Jews who until the nineteenth century
constituted the vast majority of the Jewish settlement here: see Y.Y.
Burla, Mekor Yisra'e/ (Jerusalem 1882); Resp. Yissah Berakhah by R.
Elyashar, Even haEzer 14; and the opinion of Chief Rabbi Ya'akov Me'ir
in Alpert v. Alpert. In Egypt as well – where most practices followed
those of this country – it was the custom for the widow to be maintained
99
PART TWO: GENERAL PRINCIPLES
out of the heirs' property so Jong as she did not claim her ketubah (see Resp.
Radbaz III, 455 and the new Resp. Radbaz 92 and 501; Maharikash, Erekh
Lehem to Even haEzer 93; Resp. Ginat Veradim 4:21; Nahar Mitzrayim,
196a, attesting that the custom still obtains).
We may now consider the present situation and the question before us.
We live in a period of ingathering of the exiles, and it would be impossible
for immigrants from different lands to follow, in this and future generations,
the customs of their countries of origin. In these cases of varying customs
and decisions, the custom that has always been practiced in Israel must be
determined and followed. We must as far as possible harmonize modalities
and not allow each to make his own Jaw. Since we have shown (a) that the
leading authorities, Alfasi, Maimonides, Rosh, Tur and Shu/hon Arukh,
have decided in accordance with the views of Shmu'el and the Galileans [see
M. Ketubot 4: l O] and (b) that down the ages the custom in Israel was also
for the widow to be maintained out of the heir's property – we should so
order at the present time. For the following reasons, this is not a matter
of requiring a minority to accept the practice followed by the majority:
(i) the custom of the Sephardi minority is founded in the halakhah; (ii)
such was the usage in Palestine before the Jewish settlement came to be
divided into communities – Sephardi, Ashkenazi, Yemenite and so on; (iii)
when Ashkenazim came to settle here in earlier centuries, and during the
eighteenth and early nineteenth centuries they were a very small minority
as against the Sephardim, and if they were not apprehensive about the
majority practice, then we too should have no such apprehension today;
(iv) we face tremendous changes in the composition of the population of
the country. The Sephardim and the eastern communities who a few years
ago comprised only about twenty percent of the population now constitute
more than forty per cent and most probably will soon reach fifty per cent
or more. Chief Rabbi Uziel is to be commended for his effort to standardise
the terms of marriage throughout the country and to ensure that this rule
"should become the practice all over the country for all communities,
Sephardi and Ashkenazi." In pursuit of this standardisation, he agrees
that the Sephardim accept the practice of the Ashkenazim in this matter,
but for the reasons set out above, it seems to me that, on the contrary, the
Sephardi custom is determinative on this question.
It is still not certain whether it is at all justified to speak of a clear
Ashkenazi practice known to all in this matter. A number of conditions
exist for establishing a custom and one must examine carefully whether
these conditions are met.
In the view of many scholars a custom is only considered settled with
respect to something recurring frequently and to which daily recourse is
had (see also Rema to Hoshen Mishpat 331). In the case before us, one
100
CUSTOM
cannot adduce evidence of arrangements made privately between a widow
and heirs for the very reason suggested by Maharam miRotenberg… : "It is
no evidence that sometimes orphans give the widow her ketubah and pay
her off, since she may have acted willingly." Furthermore, do all women
know the law that they are not to be paid out against their wishes, and
might not their lack of objection be because they thought that such is the
law. Evidence may therefore only be brought from the practice of the
courts, but here also there are difficulties, since few such cases come to
court. In the Collection of Chief Rabbinate Decisions published in 1950,
not one instance is to be found, whereas cases regarding certain other
family matters repeat themselves with some frequency. Moreover, R. Me'ir
Posner has written in his Bet Me 'ir to Hoshen Mishpat:
I have noticed several times in the rabbinical courts that where minor
orphans are concerned the widow's ketubah has been paid out to be
rid of her, and I do not know whether this is a firm practice of long
standing or just a chance occurrence.
In any event it is not a daily happening. It may be possible to speak
of legal precedents, but not of a firmly established custom. I have heard
Chief Rabbi Herzog say that no firm practice on this question exists among
Ashkenazim in this country.
In the present matter, the deceased was an exceptionally wealthy man
and left behind him a large estate. His sons are grown up and are people
of substance. When he married the widow he made no stipulations. It was
only in his will that he directed that she should receive her ketubah and an
additional IL. 100. Even if it be said that he thereby expressed his intention
that she should only get this sum and no more, the law as decided by
Maimonides and Shulhan Arukh i~ that "even if he directed at his death that
his widow should not be maintained out of his property, he is not heeded."
Accordingly we concur in the judgment of the District court on this point
and order the appellant to pay maintenance to the respondent for the
duration of her widowhood.
4. Conflict of Customs as Between Communities
See: ESTATE OF MILLER v. MILLER.
p. 98.
IOI
PART TWO: GENERAL PRINCIPLES
5. Custom in Labour Law
See: WOLFSON v. SPINNEYS LTD .. Part 11. Labour Law. p. 819.
See: STATE OF ISRAEL
841.
See: BEN MOSHE
V.
ESTATE OF A IN BANKRUPTCY
v. BEN MOSHE.
et al, Part 11, Labour Law, p.
Part 11, Labour Law. p. 835.
102
Chapter Three
FOREIGN LAW
1. The Law of the State is the Law
See:
ROSENBAUM
v.
ZEGER
et al, Part 10, Commercial Law, p. 794.
H.C. 323/81
VILOZNI v. SUPREME RABBINICAL COURT, JERUSALEM et al.
( 1982) 36(2) P.D. 733, 740-743
In divorce proceedings between the petitioner and the second respondent, the first
respondent directed inter alia that the apartment owned jointly by the spouses should
be sold as vacant. The petitioner, who had continued to live in the apartment after his
wife had left it because of his violence, submitted that it should be sold as occupied
property by virtue ofsec. 33(a) of the Tenant's Protection Law (Consolidated Version),
1972.
Elon J.: In this connection, an interesting and important phenomenon in the
judgment of the Supreme Rabbinical Court is noteworthy, one that in part
is already to be found in the case law of rabbinical courts and in part makes
its first appearance in the matter before us. As emerges from the decision of
the Supreme Rabbinical Court, the parties presented to it the legal position
arising out of the Tenant's Protection Law (Consolidated Version), and
the Court, incorporating the provisions of that Law, held that its decision
that the apartment must be treated as vacant was not inconsistent with
tenant protection legislation that has been given halakhic force on the
basis of usage, because "townspeople may impose penalties for breach
of their regulations" (Baba Batra 9a).
The problem of the relationship between Jewish law and another legal
system within which it operates is a long standing one, and this is not the
occasion to discuss it at length (see M. Elon, Jewish Law (2nd ed.) 48 ff.),
but a few brief words are appropriate in order to shed a little light on
l03
PART TWO: GENERAL PRINCIPLES
the subject of the case law of the rabbinical courts and its relation to
the general legal system …
The well-known principle regarding this broad subject is that "the law
of the state is the law," a rule formulated by the Amora Samuel in the
third century in Babylon (Nedarim 28a; Gittin IOb; Baba Kamma I 13a-b;
Baba Batra 54b-55a). Opinion has from the very outset been divided over
the scope of application of the principle and what matters it embraces, but
again, here is not the place to deal with that (see S. Shilo, Dina deMalkhuta
Dina, (1974); Elon, op. cit. 51 ff.). The rabbinical courts have also from
time to time, when delivering judgment, had recourse to this principle so
as to give effect to different kinds of legal transactions which would not
be valid under Jewish law (matters dealt with include bank guarantees
which are flawed as asmakhta – an invalid penal clause – the legal
capacity of an artificial legal person, the recognition of which is doubtful
in original Jewish law, and land registration). There are some who would
even deny the validity of a legal transaction, although it complies with the
provisions of Jewish law, as long as it does not abide by the requirements
of the general law (for example, in the matter of land registration where
under Jewish law an agreement alone is sufficient). When the principle of
dina demalkhuta dina operates, a rule of the general legal system is given
binding force although the latter does not become part of Jewish law.
There are, however, occasions when Jewish law not only recognizes the
binding effect of a rule of some other legal system, but incorporates it
into its own system. That is done by means of the legal source of custom.
When the public acts in accordance with some legal norm, that norm is
in certain circumstances recognised as part of the Jewish legal system,
and it may be valid even if it is contrary to a particular regulation of
Jewish civil law. Just as two individuals may, in civil matters, contract
out of Biblical law, the public may all the more so stipulate – by way
of custom – contrary to a rule prevailing in monetary law (see for example
Resp. Rashdam, Hoshen Mishpat 280). This principle finds expression in
the dictum "custom sets halakhah aside" (Y. Baba Metzia 7:1, llb). I have
dealt with this in detail elsewhere with regard to the acceptance of the law
relating to joint property (see Azugi v. Azugi, p. 15-17; Elon, op. cit. 732 ff.).
In Jewish law this legal source of custom (Elon, op. cit. 211 ff.) is given
the technical name of situmta ("seal") because of the precedent in the
Talmud regarding the purchase of wine by placing a seal on the container:
it was in this connection that the creative force of custom was developed
and explained (Baba Metzia 74a). By means of custom, different areas of
Jewish law underwent considerable development, particularly the laws of
acquisition and of obligation (see Novellae Rashba to Baba Metzia 74a;
Hoshen Mishpat 201:1-2; Elon, op. cit. 713 ff., 739 ff.). The rabbinical
104
FOREIGN LAW
courts make extensive use of this legal source of custom, generally called
din situmta, in order to absorb a variety of principles and legal rules from
the general legal system…
Jewish law possesses a special means, in addition to the creative activity of
the courts, and that is legislation enacted directly by the Jewish community
enjoying a minimum of internal autonomy, or by its representatives (in
the Talmud and subsequently, these representatives are called shivah tovei
ha'ir (literally: the seven good citizens) or by various other names in
the different centres of the Diaspora). The first signs of such legislation
are found in the Tosefta and the Talmud in diverse areas of social and
commercial interest. "The townspeople may make regulations governing
the price of wheat and wine, measures and wages" (T. Baba Metzia 11:23).
In the Talmud (Baba Batra 8b- 9a) the formula is that "townspeople may
impose penalties for breach of their regulations" – masi'in al kitzatan … In
the course of time the scope of communal legislative activity was extended
to a number of different areas of civil, criminal and public law, in particular
from the tenth century, when the power of the communities in various
parts of the world began to increase. This legislation has since been called
takkanot hakaha/ (communal regulations). In the long history of Jewish
law, various rules and restrictions were formulated governing the enactment
of these takkanot, the areas in which they were enacted, (thus for example
none were made in the rules relating to religion and ritual observance),
their mode of interpretation and the like. These takkanot (regulations)
greatly enriched the legal system and became a substantial part thereof
(see further Elon, op. cit. 558 ff.).
A special, fundamental character attaches to the manner of establishing
the relationship between the Jewish legal system and the general legal
system of Israel according to the principle of masi'in al kitzatan. Under this
principle, various laws in the area of civil, criminal and public law of the
general legal system may actually become part and parcel of the Jewish
legal system – in the broad sense of this concept – and not merely
recognized by it, as was the case under dina demalkhuta dina, nor simply
absorbed by it as was the case with custom. As mentioned above, the
rabbinical courts frequently employ the principle of dina demalkhuta
dina or situmta (custom) in order to render valid or to incorporate some
law of the general legal system. The present judgment constitutes one
of the few cases – perhaps the only one, although this requires further
examination – in which the provisions of tenant protection legislation are
recognized as part of the case law of the rabbinical courts not merely by
virtue of custom but also under masi'in al kitzatan, and its employment by
the Supreme Rabbinical Court is of far-reaching and major importance. In
this way, it seems, the three honourable judges of the Supreme Rabbinical
105
PART TWO : GENERAL PRINCIPLES
Court have continued along the path cleared by their predecessor, R.
Ovadyah Hadayah, who in a detailed responsum (Resp. Yaskil Avdi 6,
Hoshen Mishpat 8) in 1954 dealt with the tenant protection laws from the
viewpoint of Jewish law:
Here it is not a question of foreign law but law which the Government
enacts for the benefit of the country's inhabitants, as in every other state.
There is a systematic discussion in Baba Batra (8b): the townspeople
may impose penalties for breach of their regulations …. This is a matter
of providing regulation, since the majority or the leading citizens (tovei
ha'ir) can then certainly enact regulations and interdictions which are
enforceable against the minority …. And it is obvious that the Members
of Knesset in Israel, elected from amongst the entire population, are
not inferior to "the seven leading citizens" who could promulgate
important takkanot, even when that entailed an advantage to some and
a disadvantage to others, all for the sake of regulating the situation. The
law relating to apartments is not any the less in this regard, intended
as it is for the benefit of people in want of dwellings, particularly at a
time of increased immigration, when large numbers are in that situation.
Failing regulation of general benefit, very many would have to remain
in the streets for lack of apartments and because of high rents which not
all are able to pay. Hence it was found proper to make such regulations
for the general benefit.
We may now return to th-: case before us. The apartment of the spouses is
their joint property, and but for the Tenant's Protection Law (Consolidated
Version) would certainly have to be treated as being vacant, even if only one
of them in fact lived there. That is the rule under Jewish law as stated in
the judgment of the Supreme Rabbinical Court: joint property which is
not severable is dealt with according to the rule gud o agud, i.e. one
joint owner may offer his co-owner one of the following alternatives
– "either you buy the property and pay me half its value or I will
buy it and pay you half its value" (Baba Batra 13a; M. T. Shekhenim 1:2;
Hoshen Mishpat 171:6; on valuation of the property, see Magid Mishneh to
M. T., loc. cit. and Rema on Hoshen Mishpat, Joe. cit.). However, as stated
in the above judgment, the rabbinical courts recognise the binding force
of the tenant protection legislation by virtue of the Jewish legal system
itself, and for that reason the value of the apartment is determined not
only in accordance with the joint ownership attaching to it but also having
regard to the accommodation it provides and its occupancy. In the view
of the Rabbinical Court, the apartment is to be deemed unoccupied by
the spouse who does not reside there only if he or she has left of his
or her own free will; but where one spouse has been compelled to leave
106
FOREIGN LAW
involuntarily because of the violent behavior of the other, the former
is deemed to be still in constructive occupation, and the value of the
apartment is therefore to be divided between the spouses as if it were
vacant. The decision on the nature of the abandonment of the apartment
by one of the spouses – whether it was voluntary or involuntary – rests
with the court as it deems right and proper in the circumstances of
the case. In practice, therefore, the Rabbinical Court has dealt with the
matter according to the Tenant's Protection Law (Consolidated Version)
as well, because it considered itself bound to do so under the Jewish legal
system – except that it construed the provisions of that Law such that it
was right and proper to value the apartment as vacant and not occupied
by the husband alone.
T.A. 342/81
NAGAR v. ATTORNEY GENERAL et al.
(1973) I P.M. 232, 253
These proceedings involved a dispute between divorced parents over the proper
educational framework for their two minor children – whether it should be a secular
school, as the mother desired, or a religious school, as the father desired. The parties
had been divorced in a rabbinical court under an agreement which provided that "all
disputes that might occur between the parties regarding their children after divorce
shall fall within the jurisdiction of the rabbinical court, " but the agreement itself was
not approved by the court and did not acquire the force of a judgment. Although
under the agreement the children remained in the custody of the mother, the father
petitioned the Rabbinical Court to require their removal from the secular school
that they were attending and their transfer to a religious school. His action succeeded,
andjudgment was confirmed by the Supreme Rabbinical Court. The children themselves
refused to transfer to a religious school and as a result, remained for a lengthy period
without schooling. The Attorney-General and the mother applied to the District Court
for an order that the children be sent to a secular school. The order was made
in the absence of the father. He now asks for the decision to be set aside on the
ground that the District Court had no authority to intervene in the matter, the
Rabbinical Court having already given a decision thereon with all the parties consenting
to jurisdiction.
Porat J.: I am ready, with respect, to understand the position of the judges
of the Rabbinical court who take the view that they have been appointed
to adjudicate according to religious law, to which and to which alone they
owe fidelity. I am prepared to believe that such a judge will do everything
107
PART TWO: GENERAL PRINCIPLES
possible to adhere to religious law since any other law will be contrary
to his conscience and perhaps his faith (particularly in a case such as this
where the mother asks that her children be sent to and remain in a "secular"
school).
The above is not mere supposition, for it has support and halakhic
foundation in the decision of Razon Ish in his Hoshen Mishpat, Sanhedrin,
15:4 at the end (folio 184b):
It makes no difference whether he came before non-Jews or Jews who
adjudicate according to fabricated law; and the matter is still more
disgraceful when the law of the Torah has been exchanged for a law
of vanity. If people agree to that, their agreement is meaningless, and
if they enforce it their law is predatory and oppressive and they rebel
against the Law of Moses.
These observations were cited with approval by R. S. Miron in his article,
"The Status of the Rabbinical Courts in Israel according to the Halakhah"
in Proceedings of the 22nd National Conference on the Oral Law (1981)
94-95.
Having regard to what Razon Ish has written and the article by R.
Miron, it is more than clear and explicit to me that the outstanding force
of the rabbinical court, as compared to any other tribunal, is inter alia its
adhesion to the halakhah and to that alone. The moment a rabbinical court
decides other than in accordance with the halakhah it loses its authority
even under the halakhah – any "secular" limitation to halakhic authority
and religious law is null and void from the viewpoint of the halakhah (see
Miron, op. cit. 98).
108
Chapter Four
PRECEDENT
I. The Principle of Binding Precedent
C.A. 245/ 60
AMERICAN CYANAMID COMPANY v. S.P.A. et al.
(1962) 16 P.D. 788, 799
The appellant company, which manufactures pharmaceutical goods, brought an action
against the respondent companies for breach ofa patent registered in Israel. The defence
was that the claim in the patent was ambiguous and did not disclose any invention;
the patent was therefore null and void. The appellant then made application under
the Patents Ordinance for amendment of the particulars of the patent, but the District
Court dismissed the application.
Cohn J.: I am not prepared to dispute the presumption that the English
courts know how to interpret English law. This presumption obligates
the courts in Israel to relate seriously and respectfully to the case law
of the English courts in all that concerns the English Common law that
obtains in Israel, and the interpretation of laws taken or copied from
English sources. English precedents, however, have no binding force – at
least not those decided after the Establishment of the State. The question
facing an Israeli court with regard to such a precedent is not whether
there appears to be "strong reason" for departing from it, since otherwise
we would follow it as if it were a mountain towering over us; rather, the
Israeli court must ask itself in each case whether the English precedent
is "just in its own eyes" (in the words of Rosh to Sanhedrin 4:6), that
is, whether it would have decided likewise had the matter originally come
before it. From the positive rule that every court, apart from the Supreme
Court itself, is bound by the precedents of the Supreme Court, one may infer
the negative rule that a court is not bound by the precedent of any other
court; and no court fulfills its duty to judge by depending on a precedent
109
PART TWO: GENERAL PRINCIPLES
by which it is not bound and which on its merits it does not consider
right.
F.H. 39/75, 41/75
ISRAEL PORTS AUTHORITY v. ARARAT INS. CO. LTD. et al.
(1977) 31(1) P.D. 533, 536-537, 545
The subject of this Further Hearing is the date on which damages in tort are to be
calculated.
Cohn J.: Sec. 33(b) of the Courts Law provides that the Supreme Court
is not bound by its own judgments, although they bind every other court.
Clearly the Supreme Court may diverge from its own precedents, even
set them aside – and to that end no legislative act is needed. However,
the practice of this Court not to exercise this authority lightly has implanted
in the minds of observers and pleaders the (mistaken) impression, as it were,
that the Supreme Court generally regards itself bound by its own precedents.
This impression has been strengthened not a little by the dicta of judges
who have desired to deviate from, or set aside precedents but have been
restrained from doing so …
I, too, have had occasion to express the view that there are matters
in respect of which, notwithstanding the authority we possess under the
law, we will not deviate from decided law even when it does not seem
correct to us. Among these matters are those precedents which determine
the jurisdiction of tribunals or procedure: in such and like cases decisive
importance attaches to stability and certainty, without which delay of justice
is unavoidable. In other words, where some mishap is likely to be caused
by departing from a precedent and the only benefit of doing so is academic,
it is preferable to follow the ploughed furrow of the precedent and avoid
the mishap, even if the purity of the law is thereby affected.
This is not the case where a wrong is likely to be caused by not
diverging from a precedent or by not setting it aside. When the Supreme
Court sees that a previously decided rule may lead to injustice, either
because circumstances have changed or because the rule seems to the
judges mistaken from the outset, not only may it disregard it but, in
my opinion, it is obliged to do so. The Supreme Court is charged with
judging justly in accordance with the law, and it will not be fulfilling its
duty if it does not exercise the powers conferred upon it by the law to
decide with justice regardless of any precedent of its own.
110
PRECEDENT
These observations are not addressed to formal-technical matters such
as procedure and questions of jurisdiction, but to substantive matters,
where the question is not how we arrive at the remedy to be given but
what remedy is due. When the question involves the determination of the
substantive rights and duties of the litigants appearing before the Supreme
Court, the legislature has revealed its intention as expressed by the first
President of this Court: as between truth and stability, truth is to be
preferred.
Were I required to set for myself a yardstick when or when not to
diverge from a decided rule in substantive matters, I would be happy to
adopt the directives of Rosh, according to which the person deciding a
case must immerse himself in the judgments of his predecessors and search
out whether they are equitable in his eyes; and if They are not equitable in his eyes and he brings evidence for his own
views which are acceptable to his contemporaries – Jepthah in his
generation is like Samuel in his; there is only the judge who lives
at the time, and he may depart from the views of his predecessors since
anything that is not expounded in the Talmud redacted by Ravina and
Rav Ashi (read: legislation) may be departed from, even to the extent
of differing from the Ge'onim (Piskei haRosh, Sanhedrin, IV, 6, 118a).
Some things may be "equitable" for one generation and not for another,
and the task is to determine whether they are "equitable" for one's own
generation. Since Jepthah in his generation is like Samuel in his (Rosh
Hashanah 25b), one should not refrain from setting aside the decisions of
one's predecessors simply because they were greater and wiser and one is
"the most worthless" (ibid.). Litigants have only the judges of their own
time. Hence the question facing the judge (the Supreme Court) is not
only what is the decided law; the question is mainly whether the decided
law is "equitable," just and apposite to contemporary requirements. Only
when this principal question is answered affirmatively can decided law be
binding.
It is simply our good fortune that the vast majority of the precedents
of this Court have been and will remain "equitable" in our eyes and we
follow them with good will …
Kahan J.: My learned friend Cohn J. has cited Rosh …. As Prof. M. Elon
has explained in his treatise on Jewish Law, 232-36, the halakhah has
adopted the principle of hilkhata kebatrai, which means that where a
difference of opinion exists between the earlier sages of the post-Talmudic
period and later sages, the law is according to the latter. After citing from
Rosh, the learned author writes:
I II
PART TWO: GENERAL PRINCIPLES
Thus was the leading principle of decision-making in Jewish law founded
and adopted – halakhah kebatrai. This principle is not to be understood
as any diminution whatsoever of the reverence which the later paid to
the earlier generations; this reverence also moved the later authority
to contemplate his own decisions with gravity, awe and humility since
he knew that he was dealing with a problem already dealt with by
the early authorities; but having reached his own conclusions, the
Jaw would be decided according to his own views and not according
to those of the early authorities.
It should be pointed out that this power of the Sages of the halakhah is
strongly related to the belief that the halakhah was given over to decision
by the Sages and that the Giver of the Torah agreed, as it were, to their
judgment, as illustrated in the deeply significant story of Aknai and his
oven (Baba Metzia 59a-b; see also M. Silberg, Principia Talmudica, 6870). The powers of the Sages of the halakhah may be said to be both
judicial and legislative, subject to the rules laid down until the completion
of the Talmud (see Elon, op. cit. 225-30). It is impossible to compare this
extensive authority with the powers of secular judges who work alongside
the legislative branch, in a constitutional system based on the separation
of powers.
C.A. 682/81
FREED v. FREED
(1982) 36(2) P.D. 695, 697
The District Court dismissed in Iimine the claim of the appellant wife for maintenance
from the respondent husband in view of a decision of the District Rabbinical Court
that she was a "rebellious" wife, a decision which was contrary to a previous decision
of the Supreme Rabbinical Court of Appeals.
Landau J.: The rule hilkhata kebatrai upon which the judge relied is not
involved here because that rule deals with the right and power of each
generation of authorities of the halakhah to diverge from the judgments
given in previous generations (see M. Elon, Jewish Law, (2nd ed.) 232
ff.). This has nothing to do with the differences of opinion that may
arise in the various courts that have given judgment on an issue. Indeed,
Jewish law tells us that every court may and in fact must decide "as it
views the matter" and if not convinced of the correctness of the judgments
of other judges, is not bound by their decisions (Elon, op. cit. 802-4).
112
PRECEDENT
2. Care Required When Relying on Precedent
C.A. 4/67
BRITISH AND COLONIAL ESTATES LTD. v. TRABLUS
(1967) 21(1) P.D. 463, 470-471
The District Court approved the decision of a Rem Tribunal holding that a roof is
part of rented premises and that the Tribunal therefore had jurisdiction to permit the
erection of a television antenna thereon.
Kister J.: As to the question of what is or is not included in a sale or
rental, many explanations are found in halakhic literature and these are
apt in the present case. The method of Maimonides and Shulhan Arukh,
as we know, is casuistic. Yet Maimonides, after dealing in chapters 5 and
6 of M. T. Mekhira with the question of what is or is not included in
a sale of immovable property, when the matter is not made explicit by the
parties, writes (ibid. 16:7 and 8):
7. These matters arise only where there is no general practice …
8. It is a leading rule in all negotiations that one has regard to the terms
used locally and to general local practice, but where no practice is known
and no special terminology employed, some using one term and some
another, we proceed in the manner explained by the Sages.
Thus also it is decided in Hoshen Mishpat 215 and elsewhere.
Apart from general practice, terminology and circumstances, there are
other basic rules for appraising the intention of the parties, including the
amount due to be paid, but there is no need for me to enlarge on that.
As for the use of precedents and the decisions contained in the
Responsa and halakhic literature with respect to a particular case ( as
distinct from explanations of the bases of law cited in the Responsa), I
will confine myself to citing the incisive observations of R. Yishayahu
Bassan in a responsum published in Resp. Pahad Yitzhak, 1:328: "Not
every one is privileged to learn from the leading Responsa… and it is well
known that the law changes with the slightest variations in the transaction
in question.''
113
Chapter Five
CIRCUMVENTION AND FICTION
1. Avoidance of Statutory Law and Legal Fiction
C.A. 34/ 61
VADIYAH v. DIRECTOR OF LAND APPRECIATION TAX
(1961) P.D. 2255, 2257-lli8
This is an appeal against a decision of the Haifa Appeals Commirree for Land
Appreciation Tax which by a majority dismissed the appeal of the appellant to an
order imposing land appreciation tax on a sale of real estate effected by means of a
long lease for 999 years.
Silberg J.: In this judgment I wish to change the usual order and deal first
in the abstract with the main question that is before us.
In legal literature it is common to distinguish between evasion of tax
and avoidance of tax. The first is always prohibited whilst the second is
sometimes allowed. However, after delving into the subject we shall see that
conceptually and substantively there is no difference between them. Both
evasion and avoidance – as long as they do not involve the deception
of the authorities with respect to the facts ~ exploit one legal norm as
a shield and defence against another norm… and the question is, how do
they differ… ?
Jewish law as well contains much material on the question of when
evasion of the law will be effective and when it will not (cf. R. Tarfon's
betrothal of hundreds of women: Y. Yevamot 4: 12; the evasion of the
second tithe: Ma'aser Sheni 4:5; Baba Metzia 45b-46a; the Bet Horon gift:
Nedarim 48a; Y. Nedarim 39b; the evasion of interest Baba Metzia 62b;
M. T. Malveh veLoveh 5: 15, etc.).
114
PRECEDENT
2. Care Required When Relying on Precedent
C.A. 4/67
BRITISH AND COLONIAL ESTATES LTD. v. TRABLUS
(1967) 21(1) P.D. 463, 470-471
The District Court approved the decision of a Rent Tribunal holding that a roof is
part of rented premises and that the Tribunal there/ore had jurisdiction lo permit the
erection of a television antenna thereon.
Kister J.: As to the question of what is or is not included in a sale or
rental, many explanations are found in halakhic literature and these are
apt in the present case. The method of Maimonides and Shulhan Arukh,
as we know, is casuistic. Yet Maimonides, after dealing in chapters 5 and
6 of M. T. Mekhira with the question of what is or is not included in
a sale of immovable property, when the matter is not made explicit by the
parties, writes (ibid. 16:7 and 8):
7. These matters arise only where there is no general practice …
8. It is a leading rule in all negotiations that one has regard to the terms
used locally and to general local practice, but where no practice is known
and no special terminology employed, some using one term and some
another, we proceed in the manner explained by the Sages.
Thus also it is decided in Hoshen Mishpat 215 and elsewhere.
Apart from general practice, terminology and circumstances, there are
other basic rules for appraising the intention of the parties, including the
amount due to be paid, but there is no need for me to enlarge on that.
As for the use of precedents and the decisions contained in the
Responsa and halakhic literature with respect to a particular case (as
distinct from explanations of the bases of law cited in the Responsa), I
will confine myself to citing the incisive observations of R. Yishayahu
Bassan in a responsum published in Resp. Pahad Yitzhak, 1:328: "Not
every one is privileged to learn from the leading Responsa… and it is well
known that the law changes with the slightest variations in the transaction
in question."
113
Chapter Five
CIRCUMVENTION AND FICTION
1. Avoidance of Statutory Law and Legal Fiction
C.A. 34/ 61
VADIYAH v. DIRECTOR OF LAND APPRECIATION TAX
(1961 ) P.D. 2255, 2257-2258
This is an appeal against a decision of the Haifa Appeals Committee for Land
Appreciation Tax which by a majority dismissed the appeal of the appellant to an
order imposing land appreciation tax on a sale of real estate effected by means of a
long lease for 999 years.
Silberg J.: In this judgment I wish to change the usual order and deal first
in the abstract with the main question that is before us.
In legal literature it is common to distinguish between evasion of tax
and avoidance of tax. The first is always prohibited whilst the second is
sometimes allowed. However, after delving into the subject we shall see that
conceptually and substantively there is no difference between them. Both
evasion and avoidance – as long as they do not involve the deception
of the authorities with respect to the facts – exploit one legal norm as
a shield and defence against another norm…and the question is, how do
they differ… ?
Jewish law as well contains much material on the question of when
evasion of the law will be effective and when it will not (cf. R. Tarfon's
betrothal of hundreds of women: Y. Yevamot 4:12; the evasion of the
second tithe: Ma'aser Sheni 4:5; Baba Metzia 45b-46a; the Bet Horon gift:
Nedarim 48a; Y. Nedarim 39b; the evasion of interest Baba Metzia 62b;
M.T. Malveh veLoveh 5:15, etc.).
114
CIRCUMVENTION AND FICTION
C.A. 265/67
MEFI LTD. v. ASSESSMENT OFFICER FOR LARGE ENTERPRISES
MAIN T.A. 72/60
The appellant company was set up by ten individuals who were partners in a certain
business. Subsequently the company acquired the shares of nine of the partners in the
partnership, giving it an eighty-eight percent stake therein, whilst the share of the tenth
partner was transferred to another company which had been acquired by the appellant
a few months before. This other company had ceased trading for some time and was
left with a trading loss exceeding a quarter of a million lira. The appellant company
tried to set off this loss against the profit it had derived from its participation in the
partnership. The assessment officer rejected the claim, viewing the whole transaction
as fictitious.
Silberg P.: The present appeal involves an important legal problem
– evasion of the law in the classic Jewish sense, i.e. the creation of a
special situation which enables the provisions of one law to be bypassed
by means of another law. When and in what circumstances is such evasion
to be regarded as "fictitious" in the sense of sec. 86 of the Income Tax
Ordinance?
Formulation of the question in this manner incorporates the proposition
that, but for sec. 86, the transaction could not, on general grounds, be
disqualified for its fictitious nature. A transaction protected by statutory
provision cannot simply be illegal. On the other hand, if indeed the
transaction is fictitious, it fails not because of its fictitiousness but because
of its illegality, since the fact that it is fictitious removes from it the garb
of legality and uncovers its illegal core …
The position taken by Jewish law on the circumvention of a law by
means of the law itself is very liberal. There were many historical reasons
for that, the main one being the desire to preserve the flexibility and
vitality of the ancient law and render it a receptacle for absorbing changing
ways of life. For example, we can cite the various forms of evasion of
the prohibition against taking interest by transforming a loan transaction
into one of double sale (M. Baba Metzia 5), or by transforming the interest
into profits by means of a heter iska ("transaction permit" allowing a
lender to take interest by regarding him as a partner of the borrower); or
the circumvention of the remission of debts in the sabbatical year by means
of the well-known takkanah of prozbul, as a result of which the collection of
debts is effected, as it were, not by the creditor (who is under the obligation
to remit the debt) but by the court ( Gittin 36a-b; cf. Rashi in Makkot 3b,
s.v. moser shtarotav – "he hands over his promissory notes"; and see M. T.
Shemittah ve Yovel 9: 15); or the evasive effect of the abundant beneficence
115
PART TWO: GENERAL PRINCIPLES
of the priestly Tannah, R. Tarfon, who betrothed three hundred women in
Ashkelon so that they could partake of terumah (priestly tithe on produce)
in a period of famine (Y. Yevamot 4:12); or the evasion of the obligation
of the additional fifth payable on redeeming the second tithe by giving the
money or produce to another so that the redeemer is a "stranger" and not
the owner of the produce (M. Ma'aser Sheni 4:4-5).
Indeed on examining the laws relating to the tithe we find, to our
amazement, two evasions of two different laws, one permitted and the
other not. The first of these laws is that a person who redeems his own
second tithe in order to go up to Jerusalem and consume it there must add a
fifth of its value (Lev. 27:31) but if it is not the owner of the produce but
someone else who redeems the second tithe, he redeems it at its value
without any addition. This rule served as a basis for the "good advice"
regarding evasion which the Mishnah proffers to the owner of the produce:
One may contrive (to redeem without adding a fifth) the second tithe.
How? One may say to one's son or daughter, one's Hebrew servant
or maid servant, "Take this money and redeem this second tithe for
yourself' (M. Ma'aser Sheni 4:4).
A man who has no money, standing on his threshing floor, may say to
his neighbour (one for whom he has affection and who knows that it
is only being done to be freed from the fifth – Rashi to Baba Metzia 45b
s.v. omer]: "I give this produce to you as a gift" and then "It is to be
exchanged for money which I have at home" (M. Ma'aser Sheni 4:5).
Here we have a fictitious transfer of ownership of money or produce,
with the object of the redeemer being a "stranger", exempting the true
owner from the fifth. This evasion is "recommended" as it were by the
Mishnah and no fraud or other defect attaches to it.
The second form of evasion which it is possible but forbidden to employ
to by-pass the actual duty of separating out the tithe is treated differently.
The law is that tevel (produce potentially liable to the priestly and levitical
dues but not yet separated) is not liable to tithe until it is taken into the
house (through the front door), for it is written, "I have brought away
the hallowed things out of my house" (Deut. 26:13) (Baba Metzia 87b88a). According to Rashi (ad foe.), "into the house" means through the
front door, and not by way of the roof or the backyard. Thus a person
is given the very simple option of freeing himself from the obligation of
separating the tithe by bringing it into his house, not through the front
door but through the backyard or over the roof. May one employ this
evasion? The answer is decisively no, for this method of evasion is not
looked upon kindly by the rabbis. The Gemara tells us:
116
CIRCUMVENTION AND FICTION
Observe how the earlier generations differed from the later! The earlier
generations would bring in their produce by way of the traksamon [a
paved path giving entrance – Rashi ad Joe.] in order to make it liable
to the tithe; the later generations bring in their produce by way of
the roofs and through enclosures in order to release it from the tithe.
R. Yanai stated that tevel is not liable to the tithe until it is taken
into the house [through the front door] (Gittin 81a).
What is the difference between the two cases? Why may certain evasive
action be taken to be released from the duty of the fifth on redemption of
the second tithe, but it is forbidden to take similar evasive action to release
oneself from the duty itself of separating tithes? Does the matter depend
on the quantity of the "circumvented" tithe?
There is only one answer. In the case of redemption of the second
tithe the purpose of the evasion is indeed to be released from the fifth,
but the action taken and its effect is much wider and more profound,
since it involves the actual transfer of ownership, in every respect, of
the money or produce itself to the other person. If anything should be
lacking in the content or scope of the transfer, the redeemer would not be
a "stranger" and the evasion would not achieve its purpose. With regard
to bringing in the produce over the roof or through the enclosures, the
actual evasive act is an act devoid of content which, beyond the release
from the tithe alone, has no other implications. It is therefore effective in
releasing from tithe as stated in the Torah but it is forbidden, precisely
because of its effectiveness, since were it not for this effectiveness there
would be no harm in it and no reason to forbid it.
This is exactly the distinction made above, except that the modern secular
legislator, preferring to deny validity instead of imposing a prohibition,
stipulates that a fictitious transaction should be treated as if it never existed
and it should not merit recognition by the tax authorities. This is "the thin
line" to which I alluded above.
It is not superfluous to note here the words of Maharit Tzahalon in his
Responsa 147, which manifest the negative approach of Jewish law to acts
of evasion, the sole purpose of which is to reduce the amount of tax due
to the community.
117
PART TWO: GENERAL PRINCIPLES
2. Fiction Limited to Particular Cases
H.C. 382/ 67
ROSENBLIT v. LAND REGISTRAR … TEL AVIV et al.
(1968) 22(1) P.D. 589, 596-597
The petitioner paid additional tax under sec. 9(a) of the Land Appreciation Tax l.Aw,
1963, prior to the time specified in sec. 65 of the Collective Housing Law, calculated
on the value of the land concerned. He claimed that he was thus exempt from transfer
fees in accordance with sec. 56 of the l.Aw. The Registrar denied the claim.
Kister J.: In C.A. 139/65, at 288-289, Witkon J. had the following to say
regarding the passage "if the real estate right had been sold in a manner
requiring registration in the Land Registry" at the end of sec. 9a(l):
The phrase "if that.. .had been" creates a fiction. In actual fact the real
estate right is not sold in a manner requiring registration and the fiction
is only intended to provide a yard-stick for determining the additional
tax.
I agree with Witkon J, but when the term "fiction" is used, the only
meaning it can have is that when a contract is made, tax is to be levied
at the same rate as if it were a transfer, but to the extent that a real
transfer is legally necessary, the contract of sale is not to be regarded
as a substitute for an actual transfer. In Jewish law as well, we find fictions
restricted to particular matters. "Two things are not in a man's ownership
and yet Scripture treated them as though they were in his ownership.
These are a pit [dug] in a public place and leaven from midday onwards"
(Pesahim 6b). Rashi explains ad foe. that "in his ownership" signifies that
a man becomes liable therefore.
The consequence of the phrase "if that … had been" is that when an
agreement is made within the terms of sec. 51 of the Land Appreciation
Tax Law, the person acquiring the land is liable to additional tax under
sec. 9, even if no transfer was effected, at the rate levied on an actual
transfer of property.
l 18
Chapter Six
LEGAL COMPLEXITY
1. "Half Slave and Half Freeman"
C.A. 279/79
TZEDAKAH v. MUSKAT et al.
(1981) 35(4) P.D. 374, 377
The District Court empowered the respondents as executors of a deceased's estate to
sell an apartment subject to its approval. When the Court refused to approve a sale
to the appeUant, he appealed to the Supreme Court without obtaining leave to do
so.
Tirkel J.: Counsel for the appellant…further argued that sec. 152 of the
Succession Law does not apply here since only one half of the ownership
of the apartment belonged to the estate, the other half belonging to
the widow, but this argument cannot avail him either. The fact that
half of the apartment did not belong to the deceased 's estate can at
most serve as grounds for the argument that the District Court was not
competent to give any directions regarding that half in the proceedings
before it, and therefore its decision in respect of that half is null and
void. That, however, does not exclude its decision – insofar as the one
half belonging to the estate is concerned – from the aegis of sec. 152 of
the Succession Law. A complex legal situation of the kind of "half slave
and half free" (Gittin 41a ff.) indeed gives rise to difficulties and problems
but the complexity itself is not sufficient to exclude each part from the
application of the relevant law.
119
Chapter Seven
MORALITY
l. Immoral Contracts
See: Part 7, Torts, p. 515, and Part 8, Obligations, p. 633.
2. Moral Considerations in Medical Experiments
H . C. 30/ 82
MA'YAN eta/. v. DIRECTOR-GENERAL OF MINISTRY OF HEALTH
(1982) 36(3) P.D. 477, 482
The first petitioner suffers from lung cancer and no longer responds to conventional
treatment. As the doctors treating him were not able to suggest any effective treatment,
he approached another doctor engaged in cancer research who had developed a
new medical preparation with which he was prepared to treat the petitioner. The
hospital doctors were not, however, ready to have recourse to this preparation, and
the respondent refused to approve its use. Hence this petition.
Netanyahu J.: Consequent to the Foundations of Law Act, 1980, counsel
for the petitioners referred us to Jewish law and the halakhah. Since binding
law exists on the subject, there is no occasion to refer us to Jewish law,
and if I do indeed make reference to that law, it is because we are aware
not only of the legal aspect of the problem but also its human, moral
and ethical aspects, and we show respect for the views of our Sages who
have already considered this fundamental problem of the loss of life when
there is a chance, though no certainty, that by applying some dangerous
treatment a sick person will be restored to health and be kept alive.
R. Ya'akov Reisher in his Resp. Shevut Yaakov 3:15, writes in this
120
Chapter Six
LEGAL COMPLEXITY
1. "Half Slave and Half Freeman"
C.A. 279/79
TZEDAKAH v. MUSKAT et al.
(1981) 3S(4) P.D. 374, 377
The District Court empowered the respondents as executors of a deceased's estate to
sell an apartment subject to its approval. When the Court refused to approve a sale
to the appellant, he appealed to the Supreme Court without obtaining leave to do
.so.
Tirkel J.: Counsel for the appellant…further argued that sec. 152 of the
Succession Law does not apply here since only one half of the ownership
of the apartment belonged to the estate, the other half belonging to
the widow, but this argument cannot avail him either. The fact that
half of the apartment did not belong to the deceased 's estate can at
most serve as grounds for the argument that the District Court was not
competent to give any directions regarding that half in the proceedings
before it, and therefore its decision in respect of that half is null and
void. That, however, does not exclude its decision – insofar as the one
half belonging to the estate is concerned – from the aegis of sec. 152 of
the Succession Law. A complex legal situation of the kind of "half slave
and half free" (Gittin 41a ff.) indeed gives rise to difficulties and problems
but the complexity itself is not sufficient to exclude each part from the
application of the relevant law.
I I9
Chapter Seven
MORALITY
I. Immoral Contracts
See: Part 7. Torts, p. 515, and Part 8, Obligations, p. 633.
2. Moral Considerations in Medical Experiments
H.C. 30/ 82
MA'YAN eta! v. DIRECTOR-GENERAL OF MINISTRY OF HEALTH
(!982) 36(3) P.D. 477,482
The first petitioner suffers from lung cancer and no longer responds to conventional
treatment. As the doctors treating him were not able to suggest any effective treatment,
he approached another doctor engaged in cancer research who had developed a
new medical preparation with which he was prepared to treat the petitioner. The
hospital doctors were not, however, ready to have recourse to this preparation, and
the respondent refused to approve its use. Hence this petition.
Netanyahu J.: Consequent to the Foundations of Law Act, 1980, counsel
for the petitioners referred us to Jewish law and the halakhah. Since binding
law exists on the subject, there is no occasion to refer us to Jewish law,
and if I do indeed make reference to that law, it is because we are aware
not only of the legal aspect of the problem but also its human, moral
and ethical aspects, and we show respect for the views of our Sages who
have already considered this fundamental problem of the loss of life when
there is a chance, though no certainty, that by applying some dangerous
treatment a sick person will be restored to health and be kept alive.
R. Ya'akov Reisher in his Resp. Shevut Yaakov 3:75, writes in this
120
MORALITY
regard: "The law here is really a matter of life and death and one must be
very cautious in the application of the legal sources … and make thorough
inquiry." He goes on to say: "If some drug may possibly cure the patient
completely, we need have no fear about risking what little life he has
left… since he will certainly die, we put that certainty aside and seize upon
the possibility of cure" but "in any event, the doctor may not act facilely,
he must be very cautious and consult with the local specialists, and act
upon their majority opinion, that is a substantial…majority."
Elon J. has also written ("Halakhah and Modern Medicine" 4
Mo/ad (1971-72) 231, 235) that "the halakhah affirms the principle itself but
demands great caution and serious thought, and certainly also knowledge
and thorough, punctilious preparatory work. Account must equally be
taken of the success rate when making this difficult and fateful decision."
Thus, under the halakhah as well this fateful decision is not left to
the exclusive discretion of the doctor who is treating the sick person;
he must not only be very careful but must also consult with the leading
contemporary specialists. In our days, who, if not the respondent himself,
fills the role of specialist and has the task of examining and weighing
the prospects of success as against the danger, after consultation with
the experts? The result would be the same, even were we to decide in
accordance with the halakhah.
3. The Duty to Rescue and Self-Jeopardy
See: ATTORNEY-GENERAL v. GREENWALD. Part 6, Penal Law, p. 443.
S.F. 26/82
ATTORNEY GENERAL et al. v. TZIVIDALI et al.
(1983) I P.M. 225, 230-231
The second petitioner has a three-year old daughter suffering from an incurable disease.
The child is likely to die very soon and perhaps the only cure for her is to transplant
bone marrow from her nine-year old sister. The transplant process is almost harmless to
the donor but may hasten the death of the donee in the event of it not being successful.
The petition asks that the Court order the doctors who had recommended a transplant
to carry it out.
121
PART TWO: GENERAL PRINCIPLES
Tai J.: I have also given thought to the position of the halakhah in a
case such as this. We are commanded by the Torah to save a person
in a perilous situation. "Whence do we know that a person who sees
another drowning in a river, or attacked by wild animals or beset by
brigands, must save him? It is written: 'Thou shalt not stand idly by the
blood of thy neighbour' (Lev. 19:16)" (Torat Kohanirn, Kedoshim 4:8;
Sanhedrin 73b). Apart from the negative command not to stand idly by,
there is also a positive command to rescue one who is in danger, derived
from the duty to restore something that another has lost: "And thou shalt
restore it to him" (Deut. 22:2), which the rabbis construed as meaning that
even his life you must restore to him (Sifre ad loc. cited in Sanhedrin loc.
cit. and Baba Kamma 81b). Thus also is the law stated by Maimonides,
M.T. Rotze'ah 1:14; and Hoshen Mishpat 426). The same applies to
rescue from a possible peril (Novellae of R. Nissim to Sanhedrin loc. cit.)
even if that involves discomfort to the rescuer (Magen Avraham 156:2).
Since the obligation to rescue is a positive commandment, it is clear that
according to the halakhah the rescuer may be compeUed to act on pain
of death~ "until his soul departs" (Ketubot 96a-b) and not to follow
the manner of Sodom (Baba Batra 12b), for this is the case with all
positive commandments.
The authorities are, however, divided over whether the rescuer must
place himself in danger or potential danger in order to save his neighbour
even from certain peril (Hagahot Maimuni to M. T. loc. cit., citing the
affirmative view of the Jerusalem Talmud). As against this, there is the
view that to go so far is an act of piety but is not obligatory (Resp.
Radbaz 3:2052, and see more extensively the Talmudic Encyclopedia, s.v.
Hatzalat Nefashot; Shulhan Arukh Ba'al ha Tanya, Hilkhot Nizkei Guf, 7).
In the present case, there is no occasion, even under the halakhah, to
compel the young sister to donate bone marrow. First of all, since she
has not reached majority she is not bound at all by the commandments.
Secondly, since the bone marrow will be taken under general anaesthetic,
she faces potential danger, even though it is remote, and those who think
that no obligation to rescue arises where there is potential danger do not
differentiate between immediate and remote danger. (One of the reasons
given by Radbaz citing an actual case that he knew of is that potential
remote risk may become a real risk.)
122
MORALITY
4. The Duty to Rescue Despite Protest
c,.c. (Haifa) 361 /84
ST ATE OF ISRAEL v. KORT AM et al.
(1986) I P.M. 45, 54
This case turned on an alleged invasion of privacy by means of an operation, in order
indeed to save his life, to extract two plastic bags of heroin that the defendant had
swallowed.
Zehavi J.: Since there is nothing in our legislation or case law or in anything
else that deals directly with the situation where a rational adult opposes
an operation on his body that will save his life, counsel for prosecution
proposed that use be made of sec. 1 of the Foundations of Law Act of 1980
and that the matter be decided in the light of "the principles of…Israel's
heritage." To this end he cited a leading authority of his age, Ya'akov
Emden (1697-1776), from his Mor uKetziah on Orah Hayim:
Where a person is obviously sick and the physician has clear and certain
knowledge of the sickness and employs proven medicines, one may
always compel the sick person to undergo treatment when he refuses,
if the danger is apparent, and permit the physician to proceed, e.g.
to operate … and even to amputate a limb (in order to save him from
death) …. One may do all such things against his wishes in order to save
his life… and he is not heeded if he does not wish to undergo the pain
and chooses to die. A complete limb may be amputated if necessary
to save him from death. Everything needed is to be done to preserve
the life of a sick person even against his will. All are to be enjoined to
act thus, because no one may stand by and allow a person to die. The
matter does not depend on the wishes of the sick person and he is not
at liberty to abandon his life.
This principle that a person may save another's life although the latter is
opposed and desires to commit suicide is to be found indirectly in sec. 5(c)
of the Unjust Enrichment Law, 1979, which, although it provides that a
beneficiary need not indemnify or compensate any one who preserves his
property, nevertheless creates an exception where "life, physical integrity
or health" is involved and that in spite of any objection of the beneficiary
to the act of "rescue."
l23
PART TWO: GENERAL PRINCIPLES
O.A. 480/85. 527/ 85
KORTAM v. STATE OF ISRAEL
(1986) 40(3) P.D. 673, 685, 696, 697
The appellant was convicted in the District Court of illegal posession of narcotics, in
violation of sec. 7 of the Dangerous Drugs Ordinance [New Version], 1973. The appeal
turned mainly on the question of whether an object which was discovered in the course
of an operation conducted by a doctor without the patient's consent and against his
will but with the aim of saving his life, might constitute admissible evidence in court in·
the absence of the consent of that person.
Bach J.: In this context, the judge also mentions Jewish law, which views
the need to protect life as a supreme value, and which has given this value
expression in the rules relating to pikuah nefesh-the obligation to save
life.
The words of Silberg J. in Zim v. Maziar (1963) 17 P.D. 1319, at 1333,
should be mentioned in this context:
Judaism has always glorified and exalted the immense value of human
life. The Torah of Israel is not a philosophical system of beliefs and
opinions, but a way of life-for life, and for the sake of life. "That man
shall do and live by them" (Lev. 18:5); "And live by them and not
die by them" ( Yoma 85b); there are countless passages in which the
causal connection between the Torah and life is stressed.
The judge also relied on the provisions of sec. 5(c) of the Unjust Enrichment
Law, 1979. By virtue of this section, the legislature has recognised that a
person is not required to make restitution or pay damages to another
person who was acting to protect his property, when he himself objected
to the acts of protection; nevertheless, he is required to make restitution
and pay compensation when the act was done to preserve his "life, bodily
integrity or health", even if he objected to the acts of salvation. From this
we learn that an act which is directed at saving the life of another merits
encouragement, support and, where necessary, protection as well, even if
these are contrary to the wishes of the person being saved.
Here, however, we must take note of the difference between performing
a regular act which is intended to save the life of another, and an act
which affects the bodily integrity and the privacy of a person whose life
the injurer intends to save.
Beiski J.: For my part, I do not think that in such a difficult and complex
matter, we must necessarily adopt the principles that were shaped in the
124
MORALITY
United States and in England – neither the general principle which forbids
physical treatment by a doctor without the patient's consent, nor the few
exceptions to the rule. I am not denigrating the references cited by my
colleague in this context, but I am not convinced that this approach
is compatible with the Jewish philosophy of the sanctity of life as a supreme
value and with the Jewish tradition of saving life when it is possible
to do so. In this context, the judge in the lower court cited in his decision
the words of R. Jacob Emden in his book, Mor Ukeziah on Shu/khan
Arukh, Orah Hayyim …
We find this approach reflected in the decision in Ashira (a minor), by
her Parents, V. A. Gerti v. State of Israel (1964) 18 P.D. 449, at 454,
the circumstances of which and quotes from which have already been
mentioned by my learned colleague …
Further on, a passage from J.G. Fleming, On the Law of Torts (Sydney,
2nd ed., 1961) 89-90, is cited, which demonstrates a similar approach.
Also similar are the words of Silberg J. in Zim v. Maziar cited in
the opinion of my colleague.
5. Acting Beyond the Strict Letter of the Law
See:
CUSTODIAN FOR ABSENTEE PROPERTY
v.
UBEID
et al, Part 9, Property – Physical
and Intellectual, p. 7 40.
See:
KITAN LTD. v. WEISS
See:
NESS
et al v.
GOLDA
et al., Part 7, Torts, p. 581.
et al, Part 7, Obligations, p. 583.
H.C. 702/81
MINTZER v. CENTRAL BOARD OF ISRAEL BAR ASSOCIATION et al.
(1982) 36(2) P.D. I, 9, 17-19
Elon J.: What has happened here is that a law student has pursued his
studies and fully absorbed the cases and statutes and also clerked with
two instructors. Now that he comes to receive his qualifying certificate
he is told that he is premature in applying to join the community of
lawyers. The postponement is not the result of pursuing some elevated
standard (consider carefully Shabbat 31a) but rather, is due to a formality
125
PART TWO: GENERAL PRINCIPLES
of law. To be very brief, this is the problem facing us: under strict law
as formulated in rule 3 of the Chamber of Advocates (Registration of
Clerks and Supervision of Clerkship) Rules, the petitioner's clerkship with
his second instructor does not count in calculating the required period
of clerkship since the Chamber was not notified about it in good time
and obviously did not duly approve it. Yet, by any true measure of
justice, how can the petitioner be deprived of an entire year of clerkship
when it is clear beyond all doubt that he duly served – even if not in
strict adherence to the law – throughout that entire period, as he declared
and as the second instructor attested. Nor has any one suggested that there
was any deceitful practice …
The approach of Jewish law to the subject of "measures and quantities"
and of law and justice is very illuminating. I shall say something about
that, even if only allusively and briefly. The principle of measurements
and quantities as a substantive element of every matter of law certainly
has its place in Jewish law. In that system, it is given clear, unequivocal
and emphatic expression in the learning of the Sages, as highlighted in the
well-known story of R. Yirmiyah (Baba Batra 23b):
A young pigeon found within fifty cubits of a cote belongs to the
owner of the cote; beyond fifty cubits it belongs to the finder …. R.
Yirmiyah asked "If one foot is within and one foot beyond fifty cubits,
what is the rule?" For that, R. Yirmiyah was turned out of the Bet
Hamidrash because "he annoyed them" (Rashi Baba Batra ad foe.).
Why was that so? BecauseAll the measures set by the Sages are such. In [a bath of] forty se'ah one
may immerse ritually; in one of forty se'ah less a kartob one may not
(Ketubot 104a).
Nevertheless, this basic approach of Jewish law with respect to the need
for firmly prescribed standards generally did not prevent that system from
requiring a judge to try and find a suitable solution in the exceptional case
if justice and good reason called for such a solution. The requirement is
pointedly and briefly illustrated in defining the duties of the judge to give
"true judgment according to its truth" (Shabbat 10a; Sanhedrin 7a). What
is truthful truth? Is there a truth that is not true? To that question, R.
Yehoshua Falk Katz replied:
What they meant by saying "true judgment according to its truth"
was that a judge decides according to time and place and not always
according to the actual letter of the Torah, for sometimes he needs to
decide beyond the strict letter of the law in the light of the occasion and
126
MORALITY
the matter involved. When he does not do so, although his judgment
is true it is not "truthful". As the Sages have said [Baba Metzia 30b]
..Jerusalem was destroyed only because judgment was given strictly in
accordance with the letter of the Torah and not beyond that" [i.e.
equitably] (Derishah to Tur, Hoshen Mishpat 1:2).
The Vilna Gaon adds:
Judges must be adept in worldly affairs so that their judgments are
not spurious. Otherwise, even if they are proficient in the law of the
Torah, truth will not emerge in its truthfulness – even though they
decide the truth it will not be according to its truthfulness … A judge
must be proficient in both.. .learned in the Torah and understanding of
worldly matters (Perush haGra to Prov. 6:4).
The Sages coined the expression that "a judge is concerned only with what
his eyes behold" (Sanhedrin 6b) which means that "he should have in mind
to decide the law justly and according to its truth" (Rashi on Sanhedrin 6b,
s.v. ela)…
Let it not be feared that this moderation of the standard of law in
particular appropriate cases may undermine the stability of legal norm
regarding measures and quantities. In Jewish law, the equitable exercise
of discretion is also a matter of judicial decision with its own rules and
limits, and a judge is free to exercise his discretion only in accordance
with these rules and limits. This subject is many-faceted and now is not
the occasion to enlarge thereon, the question having been partly discussed
elsewhere (M. Silberg, Principia Talmudica (1964) 97 ff.; M. Elon, Jewish
Law, (1978) 171 ff.).
This mode of judicial decision has its foundation in the philosophy of
Jewish law on the relation between law and ethics, between insisting on the
strict letter of the law and going beyond it, between the character of the
law and the nature of the world in which it operates, which are intertwined
in judicial decision when circumstances and occasion so require. To repeat
what C.K. Allen has said, the layman may be loud in his condemnation
of "flagrant injustice" because he is not trained to look beyond the particular
to the general, but the force of this condemnation is "quietly" upheld by
all who maintain the law and a fortiori by judges sitting in judgment;
the patent injustice that befalls a litigant confuses his comprehension of
the nature and character of doing just law. And the consoling view that
obvious injustice "is a source of genuine regret to every lawyer who respects
his profession" cannot minimise the wrong done to the individual. It is small
comfort to lawyer and judge even when they have learned "to look beyond
the particular to the general". If any comparison can be drawn between the
127
PART TWO: GENERAL PRINCIPLES
practice of surgery and the legal profession, the opposite conclusion would
seem to present itself. The surgeon does not, heaven forbid, "lose" a certain
number of patients, to serve some purpose beyond the patient on whom
he operates and for whom he is commanded by law and medical ethics to
do all he possibly can. It would appear that the mode of decision making
under Jewish law may lead to a happier prospect: it may also save a
litigant from the possibility of suffering an obvious and imminent wrong,
from becoming "lost" in the operation of the law and judgment.
T.A. 531/79
STATE OF ISRAEL v. LAUFER
(1981) 2 P.M. 309,313
The defendant was convicted of "stealing by an employee" under sec. 391 of the Penal
Law, 1977, on his admission of having taken rools and other articles belonging to his
employer. The items were shown to be of little value and meant to be sold as scrap.
The defendant had no previous convictions and in fact was considered a good and
devoted worker. In view of these mitigating circumstances the prosecution did not ask
for actual imprisonment, but it did request a suspended sentence, in order to impress
upon the public that the court regarded stealing by an employee a serious offence. The
defence contended that this was a case where a fine would have been sufficient.
Strusman J.: The prosecution argues that the law – as decided by the
Supreme Court – is that any employee who steals from his employer
property valued at more than IL. 500 is liable to imprisonment. If that
is indeed the law, we should amend it. "Jerusalem was only destroyed
because (the judges) insisted on the strict law and did not act equitably"
(Baba Metzia 30b). That is not the law, however: the rule is that the
defendant is to be judged according to his personal character and the
circumstances of the offence.
C.A.(T.A.) 862/79
LEVI et al. v. KLUDI ARMATUREN PAUL SCHFFER
(1982) I P.M. 368, 373.374
As a result of a monetary claim made by the respondent, a temporary attachment was
imposed on shares held by the appellants in two companies, one of them engaged in
building a hotel in Jerusalem. The appellants sought to have the attachment changed
128
MORALITY
into an attachment of various parcels of land that they proposed, but this request was
rejected by the Registrar, largely because they had not specified in their affidavits the
damages they might suffer from a continuation of the attachment of the shares. Hence
this appeal.
Barish J.: In the current absence of settled law and guidelines in the matter
before us, it is proper to seek guidance from our own sources. Maimonides
states in M. T. Malveh veLoveh I 9: 1-2 (on the basis of Gittin 48a):
When the court proceeds to distrain the property of a borrower, it
should only seize land of medium quality…. The strict law is that the
creditor levies on the poorest quality of land, since it is written, "Thou
shalt stand without and the man to whom thou dost lend shall bring
the pledge out to thee" (Deut. 24: 11). What will a person normally
bring out? The least valuable of his property. The Rabbis, however,
stipulated medium quality so that "the door should not be bolted against
would-be borrowers" (i.e., if lenders see that the debt is collected from
the least valuable property only, they will hold back from lending].
Again…payment is not made out of property that has been charged when
unencumbered property exists, even if the latter is of the poorest quality
and the encumbered property is of medium or best quality. If the free
property was flooded, the encumbered property may be seized since
unusable property is treated as non-existent.
The halakhah thus teaches us, as a guiding rule of practice, that where a
choice exists of satisfying a debt by taking the best property of the debtor
or by taking his worst or medium property and leaving the good property
in his possession, we decide in favour of the debtor since the creditor has
no vested right both to obtain full satisfaction of his debt and at the same
time make things difficult for the debtor, and certainly not to harm him.
To bear heavily upon a debtor and injure him cannot be reconciled with
the ethical rule of doing what is good and equitable which every Jew
is commanded to observe (Deut. 6:18). If Scripture has so decided, a
Jortiori in the case of temporary attachment of property on a mere claim,
the determination of which in favour of the plaintiff is at least doubtful.
129
PART TWO: GENERAL PRINCIPLES
C.A. 216/80
BAUER v. SHIKUN OVDIM LTD. et al.
(1984) 38(2) P.D, 561. 569
This appeal involved a statute-barred claim with regard to payment made in 1943
entitling the appellant to certain residential property if and when built.
Elon J.: We must dismiss the appellant's claims in every respect. He is
not entitled to any property from the respondents, nor are we able, from
the point of view of the law, to restore the real value of the money he
paid to the respondents. Learned counsel for the Jewish National Fund
[ one of the respondents] admitted that a sum of 60 lira still stands to
the credit of the appellant on the books of the JNF, and that it was
prepared to return this sum to the appellant, duly linked, as a matter
of grace. At the date of the hearings, the sum so linked amounted to
3,000 shekel. On comparing the real worth of 30 lirot in 1943 (and on
that point we were advised by counsel of the daily wage of I 7 1/ 2 agorot
which the appellant earned in those distant days as a building labourer)
with that of 3,000 shekel, the offer of counsel is derisory. The appellant's
money did not lie idle but was used by the respondent. In such a case, the
Sages have said: "How did one have the usufruct of the other's property?"
(Baba Metzia 35b). This is a classic case in which it is right and proper
to act equitably, beyond the strict law (ibid. 30b and 83a) and repay
the appellant his money according to its real worth at that time. This
Court has already said, per Shamgar P., in a case in which both claim and
appeal were dismissed in point of law:
Accordingly I would recommend that in spite of the lapse of time, and
acting beyond the strict letter of the law, the insurance company should
reconsider the matter so that the owners of the insured property are not
left with nothing (C.A. 130/80, 712).
It is surely right that such an esteemed public body as the appellant should
so act "since the public, like the individual, and perhaps even more so, must
proceed in a manner that is good and equitable and not insist on the letter
of the law" (my emphasis M.E.) (5637 / 21 A. v. B., 5 P.D.R. 151).
In a very similar case, it was held that "although in law the community
may be exempt, it is right and proper that it should act beyond the strict
law where the party is a poor person with dependent children" (Resp.
Mayim Hayim, Hoshen Mishpat 6, cited in Pithei Teshuvah, Hoshen
Mishpat 333:3).
130
MORALITY
6. Moral Basis for Duty of Care in Torts
See: PINKAS v. STATE OF ISRAEL, Part 7, Torts, p. 542.
7. Moral Duty of Employer to Pay Compensation
See: WOLFSON v. SPINNEYS LTD .• Pai:t 10, Commercial Law, p. 819.
See:
BUKHABZA
v.
See:
LAPIDOT LTD.
See:
BEN-MOSHE"· BEN-MOSHE, Part
BUKHABZA
et al v.
et al, Pai:t 11, Labour Law, p. 833.
SCHllSSER
et al, Part
11, Labour Law, p.
840.
11, Labour Law, p. 835.
8. Moral Duty to Chastize Sinners
c.c. 113/56
BEN-GU RION v. APPLEBAUM et al.
(1960) 14 P.M. 307, 364-365
Tzeltner J.: The task of this court in the present claim for damages for
defamation is to examine the material published by the defendants in a
pamphlet issued in December 1955 and in an open letter printed in "Davar"
on 16 January 1956, and see whether these are defamatory of the plaintiff
within the meaning of the Civil Wrongs Ordinance. In the event of the
answer being in the affirmative, we must determine whether the plaintiff
is entitled to damages from the defendants and if damages are due, the
amount thereof…
When sec. 20(a) of the Civil Wrongs Ordinance speaks of "a legal, moral
or social duty" it is clear to all that a "legal" duty signifies a duty imposed
by Israeli law. But what is a moral or social duty? Here as well there
can only be one answer: a duty which Israeli morality and the norms of
conduct among people in this country require us to perform. Our principles
of morality differ, to a greater or lesser degree, from those of other peoples,
131
PART TWO: GENERAL PRINCIPLES
since morality is a national heritage that varies at least in its manner
from nation to nation. For us there exist rich ethical treasures in our
early and later heritage. We do not intend to elaborate upon them here
but it may be useful to draw the attention of public-spirited individuals,
for whom moral and ethical integrity occupies a commanding position, to
the words of our forebears as these were penned by Maimonides (M. T.
De'ot 6:7 ff.):
A person who has seen another committing a sin or pursuing a course
that is not good is commanded to bring him back to what is good, to
tell him that he sins against himself with his evil acts …. A person who
reproves another whether in regard to matters of a social nature or of a
divine nature must do so personally; he must speak to him gently and
in moderate language and tell him that he is only speaking to him for
his own good so that he is ensured life in the world to come.
Again,
… a person who reproves another shall not begin by speaking harshly
to him to shame him …. Thus the Sages said "Upon reproving him, his
countenance may fall …. You shall not sin because of him." Hence it is
forbidden to put a fellow Jew to shame, especially in public. Although a
person who shames another is not liable to flagellation, it is a grievous
sin, and so the Sages said, "A person who embarrasses another in public
has no part in the world to come." One must therefore be careful not
to shame another in public whether he is an important or a lowly person,
and not to address him by an offensive name.
9. "Clean Hands and Pure Heart" as a Condition for Application to the
High Court of Justice
H.C. 29/ 52
ST. VINCENT DE PAUL MONASTERY v. TEL AVIV-JAFFA MUNICIPAL COUNCIL
(1952) 6 P.D. 670-674
Smoira P.: This is an appropriate case for dwelling on the rule that a
person may turn to the High Court of Justice only when his hands are
clean.
132
MORALITY
Let me start with a linguistic point…. The source of the expression, "with
clean hands", lies in Ps. 24:3-4: "Who may ascend the mountain of the
Lord? And who may stand in His holy place? He that hath clean hands
and a pure heart; who hath not set his desire upon vanity, and hath not
sworn deceitfully." This is the source of the above expression in Equity, and
when we talk of "clean hands", we are merely returning to the source.
Possibly, the whole term, "with clean hands and a pure heart" should be
used.
The above equitable principle applies with even greater force to
applications for an order nisi precisely because the hearing is held ex
parte, thus laying on the petitioner an even greater obligation to give the
court a complete picture and not to mislead it.
See: MARCIANO v. ELECTIONS COMMITTEE FOR OFAKIM LOCAL COUNCIL. Part 3, Social
and Administrative Regulation. p. 175.
10. Middat S'dom
See: IN RE PARTNERSHIP OF THE BROTHERS LITWINSKY, Part 10, Commercial Law,
p. 776.
133
Chapter Eight
WEIGHTS AND MEASURES
1. Weights and Measures in Law and the Doing of Justice
HC. 201/68
KAMINETZKI v. DIRECTOR-GENERAL, MINISTRY OF HEALTH
(196S) 32(2) P.D. 1013, 1015-1016
The respondent refused to grant the petitioner a permit to open a pharmacy on the
grounds that the proposed pharmacy was only about two hundred metres away from
an existing pharmacy.
Cohn J.: Had the shop which the petitioner bought for her pharmacy been
five hundred and one metres away from the existing pharmacy, she would
not have required permission from the respondent to open her pharmacy
and no question would have arisen as to whether or not an additional
pharmacy was necessary for the regular supply of medicines. Even if all agree
that there are more than enough pharmacies in a particular area to ensure
an abundant supply of medicines, no authority in the world could prevent
a young pharmacist from establishing another pharmacy provided the
spot intended for it is beyond the five hundred metre limit. Were it to be
asked how can this chance and arbitrary distance of five hundred metres
be determinative of what is or is not required for supplying medicines
in "regular" fashion, one would only be repeating the eternal question
asked by R. Yirmiyah (Baba Batra 23b) and constantly raised by those
who love justice each time they encounter standards fixed by the law. It
is in the nature of such standards to entail arbitrariness in the execution
of justice, with the result that those who come within the four comers
of these standards are suitably rewarded whilst those whose fortune it is
to fall outside them, even by the smallest margin, are penalised despite
their innocence.
See:
MINTZER v. CENTRAL BOARD OF ISRAEL BAR ASSOCIATION. p.
134
125.
Chapter Nine
CONDUCT IN TIMES OF WAR
I. Prohibition Against Waste
H. C. 202/81
TABIB et al. v. MINISTER OF DEFENCE et al.
(1982) 36(2) P. D. 622, 636
This petition concerned a decision of the respondents to acquire land belonging to the
petitioners for the purpose of building a road. It appeared that the petition contained
incorrect data about the ownership of the land and that two of the petitioners had died
before the petition was presented.
Shilo J.: Counsel for the petitioners also expressed concern about the fact
that as a result of siting the road as planned, it would become necessary
to uproot a number of citrus trees. In the course of the hearing we tried
to establish with counsel and the group of experts accompanying them
whether it was possible to choose an alternative line which would avoid
that need, but we understood that in the circumstances it was not practical.
That is a pity. Perhaps inadvertently, learned counsel for the petitioners
advanced an argument from the sphere of early Jewish international law.
There, indeed, a principle exists forbidding the destruction of fruit trees iri
the course of besieging a town in time of war (and all the more so in
peacetime). The source is Deut. 20: 19:
When thou shalt besiege a city a long time, in making war against
it to take it, thou shalt not destroy the trees thereof by wielding an
axe against them; for thou mayest eat of them but thou shalt not cut
them down, for man is the tree of the field.
The reason for this commandment is that "we should avoid cutting down
trees when besieging a city in order to subdue the inhabitants and bear
heavily on them" (Sefer haHinukh, ed. H.D. Chavel, Commandment 530).
And Maimonides in M. T Melakhim 6:7-8, notes that "when besieging
135
PART TWO: GENERAL PRINCIPLES
a city… trees bearing fruit are not to be cut down… nor water channels
blocked so that they dry up."
According to Maimonides, however, the Torah only forbade destruction
for its own sake, but the trees may be chopped down if that course is more
beneficial than leaving them standing, as when they are harmful to other
trees and the like.
In the present case, serious military considerations outweigh civilian needs,
and necessity should not be condemned. Immediately upon expropriation,
all who would thereby suffer injury were offered full monetary compensation
for their loss. There was no misrepresentation in the notice given to the
interested parties, and in fact every one of them knew in good time of the
petitioners' intention to acquire the land compulsorily so as to be able to
take lawful steps to oppose the acquisition. The acquisition itself is not
contrary to international law.
136
Part Three
SOCIAL AND ADMINISTRATIVE
REGULATION
CONTENTS
Chapter One: HOLDERS OF PUBLIC OFFICE
A. Status and Obligations
Immunity of President
Judicial Character of Public Representatives
Public Consultation Before Appointment
The Duty to Act Above Suspicion
Minor Appointees and Setting an Example
Appointment of Rabbi
Duty of Rabbi With Regard to Political Queries
"Important Personage" and Trading Agreements
9. Moreh Hora'ah
10. Authority of Rabbi to Disqualify Ritual
Slaughterer
11. The Right to Resign
l.
2.
3.
4.
5.
6.
7.
8.
141
142
145
146
148
148
149
154
154
155
159
B. Dismissal of Public Servant
1. Compulsory Dismissal
2. Grounds for Dismissal and Restrictions
160
161
C. Reinstatement of Public Servants
1. Conditions of Reinstatement
167
Chapter Two: PUBLIC AUTHORITIES
A. Principles of Action
1. The Right to be Heard
2. Arbitrary Action
3. Tolerance and Discrimination
4. Minority Representation
5. Interested Parties
6. The Obligation to Give Reasoned Decisions
7. Public Tenders
8. Public Contracts
9. Confidentiality
10. Judicial Review
l 1. Majority Decision
12. Delegation of Authority
13. Exercise of Official Powers
139
170
172
172
175
177
179
181
182
187
187
188
191
194
CONTENTS
B. The Citizen and the Authorities
I. Presumption of Innocence
2. Acquisition of Land for Public Purposes
3. Collection of Tax
194
195
197
Chapter Three: CIVIL RIGHTS
A. Protection of Human Dignity
1. Reputation and Respect
2. Oppression of the Convert
3. Imprisonment as a Means of Punishment
198
202
204
B. Freedom of Religion and Conscience
1. Exemption from Military Service
2. Recruitment of Women
204
207
C. Freedom of Expression
1. Freedom of Opinion and Expression
208
D. Rights of Aliens
I. Rights of the Gentile in Israel
209
Chapter Four: EDUCATION AND WELFARE
1.
2.
3.
4.
Duty of Father to Educate His Children
Communal Responsibility for Education
Parental Discipline
Physical Injury to Children by Parents and
Teachers
5. Raising of Public Funds for Charity
6. Entitlement of Property Owners to Charity
7. Obligation of Charity Towards One Who is Not
Careful With Funds
220
228
231
232
232
234
236
Chapter Five: TAXES
I.
2.
3.
4.
Poll Tax – Uniformity
Assessment
Double Taxation
Evasion of Tax
140
237
238
239
239
Chapter One
HOLDERS OF PUBLIC OFFICE
A. Status and Obligations
I. Immunity of President
H.C. 65 / 51
JABOTINSKY et al. v. PRESIDENT OF THE STATE OF ISRAEL
(1951) 5 P.D. 801, 807
Smoira P.: This is an application for an order nisi against the President
of the State, requiring him to appear and show cause why he should
not call upon one of the one hundred and twenty members of the First
Knesset to form a new government and, if he fails to do so, why members
should not be called upon in turn until one of them succeeds in forming
a new government that will enjoy the confidence of the Knesset. The
petition is consequent upon a vote of the Knesset of no-confidence in
the Government led by Mr. Ben-Gurion, on 14 February 1951, and the
submission to the President of the Government's resignation on the same
day …
Objection to the appearance of the Attorney-General at this stage having
been dismissed by us, he submitted the arguments that: (a) this Court
will not entertain an application against the President of the State; and
(b) this Court is not competent to hear this application.
The first argument was, in fact, that the President of the State enjoys
general immunity. The second argument was that in accordance with
existing law in this country, this Court lacks jurisdiction to deal with this
application.
141
PART THREE: SOCJAL AND ADMJNISTRATIVE REGULATION
Although in the course of his submissions the Attorney-General shifted
his main argument from immunity to want of jurisdiction, he initially
spoke at length on the first argument and evoked broad-ranging contrary
arguments from counsel for the petitioners. In my opinion, both sets of
arguments suffer from false analogies. We will not decide any constitutional
problem of the State of Israel in 1951 regarding immunity of the President
of the State by relying upon the statement of the Mishnah in Sanhedrin that
"the king may neither judge nor be judged", nor upon the incident relating
to the servant of King Jannai, cited in the Gemara to the Mishnah.
Incidentally, were we to try to resolve the problem according to these
sources, we would first have to decide whether the law concerning the
President of the State of Israel is the same as the law in regard to the kings
of the House of David who might judge and be judged, or to the kings of
Israel who might not judge nor be judged (Sanhedrin 19a) since they
did not submit to the Torah and therefore some misfortune might ensue
(Maimonides). Nor, on the other hand, will we decide the matter by basing
ourselves on verses in the Bible which speak of the princes of Israel and
the tribes (Num. 7:6-13) or the verse in Ezekiel (46: IO): "And the prince,
when they go in, shall go in the midst of them, and when they go forth,
they shall go forth together."
2. Judicial Character of Public Representatives
See:
MARCIANO
v.
ELECTIONS COMMITTEE FOR OFAKIM LOCAL COUNCIL.
p. 175.
H.C. 24/ 66
MALKA v. LEVI et al.
(1966) 20(1) P.D. 651,657
The petitioner was elected to the local council of Bet-Shemesh as a member of a
particular party but subsequently transferred his allegiance to another party. The next
day he relented, but subsequently he again joined the opposition coalition. Some time
afterwards he wrote to the chairman of the council informing him of his resignation,
and the person next on the list of candidates was invited to take his place. The petitioner
argued that he had never signed a letter of resignation, but rather, had signed a blank
sheet.for some other purpose, at the request ofa colleague, and the latter had completed
the sheet with his resignation and passed it on to the chairman.
142
HOLDERS OF PUBLIC OFFICE
Kister J.: The question facing us is whether the petitioner comes to us
with clean hands. As to that, my opinion is as follows: A person elected to
serve as a council member, and who has accepted this appointment, must
fill this public office in a trustworthy manner and act in accordance with
his conscience, fearlessly and for the benefit of local affairs. A person of
conscience, elected by some party on a list bearing its name and on the
basis of pre-election declarations, who finds after a time that his party
is acting or requires him to act in a manner that does not seem right to
him, is certainly not bound to act against his conscience. Nevertheless,
he should consider whether he still represents all or some of the people
who elected him as their representative in reliance on his declarations, and
he should certainly give serious thought to whether he ought to continue
to serve or resign. He may possibly find that he need not resign but may
continue to act in line with his ideas, especially when it is manifest that
some members of the party that chose him have split the party-line and
have adopted his approach.
The course this petitioner pursued is far from being that of a public
representative with a conscience. Not only did he waver between the
parties in a manner that cannot be satisfactorily explained as befitting
a person occupying a responsible public office, but the explanation he
gave of his shifts of position as being, according to him, the result of
threats made by members of the party by which he was chosen shows that
he himself admits that any threat is sufficient to influence his behavior: he
did not even try to protect himself by going to the police or to a lawyer.
As for his other shifts, their frequency and the way they were effected
do not indicate that they were the consequence of weighty consideration
of how he should act in public office. Although the true motives of his
frequent political wanderings were not disclosed, we were given during the
hearings some hints that speak for themselves.
I should repeat also what I have mentioned on another occasion when
dealing with the duties of a person who holds public office, that Jewish
tradition has already laid down the rule that those appointed to engage in
public purposes are like judges (see Hoshen Mishpat 37 (Rema); Terumat
haDeshen 214; Noda biYehudah, Mahadura Kamma, Hoshen Mishpat 20,
etc.).
143
PART THREE: SOCIAL AND ADMINISTRATIVE REGULATION
H.C. 312/66
SALEM v. MINISTER OF THE INTERIOR et al.
(1967) 21(1) P.D. 59. 64
In February 1965, most ofthe settlements in the Emek Lod Region elected representatives
to the local council. In one settlement no elections were held, and the respondent
appointed the petitioner as the representative for that settlement. A few months later,
following a resolution of the new council, the Minister revoked the appointment of the
petitioner and replaced him by one of the respondents.
Kister J.: The rule in respect of elected legislative and governmental bodies
is that voters have no right to require their representatives to consult with
them before taking action or to proceed according to their instructions.
If that were the practice, the stability of governmental authority would
be shaken. The law does not require an elected person to have regard
to every change in the mood of the electorate: that is a matter for his
conscience alone since he was elected for that purpose.
The approach of Jewish law to the question of publicly elected persons is
noteworthy. I have mentioned more than once-most recently in Malkha v.
Levi (see above)-that those appointed to engage in public affairs are like
judges (see Hoshen Mishpat 37). Following Rashi to Sanhedrin 23a (s.v.
yatza din emet le'amito) who says that with regard to arbitration, the
parties will abide by the decision of the arbitrators because "the losing
party thinks: 'I myself chose one of them and had he been able to find
in my favour, he would have done so'; and the arbitrators themselves
may well find in favour of both parties since they chose them", Terumat
haDeshen (344) explains that representatives of a minority of the public
are like arbitrators, and since they were elected, those who voted for
them rely on them to act honestly and fairly even when they decide in
favour of the other side. The criterion is that arbitrators should be men of
truth and not deceitful, as stated by Hazon /sh (Baba Batra 5:1):
The main aim of those choosing representatives is that the latter should
be of honest character and knowledgeable …. But that is not really like
arbitration where each side chooses its own arbitrator, since elected
individuals cannot go thoroughly into the law and act with precision
even though they possess the powers of a court.
It follows that in the case of publicly elected persons, Jewish law requires
the electorate to rely upon them to carry out their functions faithfully and
honestly. Hence there is no reason to dismiss them before expiry of the term
for which they were elected if their only fault is that they did not heed the
state of mind of that part of the public that elected them.
144
HOLDERS OF PUBLIC OFFICE
See: KATABI et al '. CHAIRMAN OF THE LOCAL COUNCIL OF KIRYAT EKRON, Part 4,
Regulation of the Courts, p. 253.
3. Public Consultation Before Appointment
F.H. 21/6-0
ABUD! v. MINISTER OF RELIGIOUS AFFAIRS et al.
(196-0) 14 P.D. 2045, 2084-2085
The High Court of Justice, sitting as a bench of three judges, held that the removal of
one member and the resignation of three other members of the Election Committee of
the Chief Rabbinical Council were of no legal effect and did not affect the competence
of the Committee.
Silberg J.: Let us finally examine the problem of the Committee from the
viewpoint of Jewish law. Indeed, the State of Israel is said to be a state of
law and not a state of the Torah, but it is difficult to divorce the law
entirely from the Torah when the appointment of rabbis is involved. I
have no doubt at all that Jewish law requires the Chief Rabbinical Council
to have an influential voice in the Election Committee, a fact which obliges
both sides to arrive at some compromise and do their utmost as a united
body to hold the elections in due and proper manner. The Talmud tells
us:
A leader is not appointed over a community without its first being
consulted, since it is written: "See, the Lord hath called Bezalel by
name" (Ex. 35:30). The Holy One Blessed be He said to Moses, "Do
you consider Bezalel worthy?" He replied: "If he is worthy in Your eyes,
he is surely worthy in my eyes." God then said to him: "Nevertheless,
go and speak to them [the people]." He went and asked Israel: "Do you
think Bezalel is worthy?" They replied: "If he is worthy in the eyes of
the Holy One Blessed be He and in your eyes, surely he is worthy in
our eyes" (Berakhot 55a).
See to what pains the Holy One Blessed be He went to ascertain the wishes
of the people of Israel.
This wonderful passage from the Talmud is quoted many times in the
Responsa literature in connection with the appointment of rabbis and
145
PART THREE: SOCIAL AND ADMINISTRATIVE REGULATION
communal leaders. There is the story of one rabbi who dominated the
community on the basis of an order of a most exalted authority and held
the office of rabbi by force and against the community's wishes. Hatam
Sofer wrote:
This rabbi, be he so lofty as the cedar and mighty as the oak, has not acted
rightly with the people by using his exalted position to dominate them.
Where is his Talmudic wisdom? Has it not been said, "A leader is
not appointed over a community without first consulting it"…. How
is a person appointed unnominated, without asking the majority of
the community what are their wishes? …. And if that is the case with a
leader of prayer who possesses no governing authority over the people,
neither to judge them nor to give them orders, … the more so with a rabbi
appointed to lead the public without consultation, with the result that
the public is forced to accept him against its will. Obviously that is not
well done (Resp. Hatam Sofer, Hoshen Mishpat 19).
Additional commentary is superfluous for it would only detract from the
value of what the Jewish Sages have said, and a fortiori regarding the
"installation of judges" who are to serve as Chief Rabbis in Israel.
The Chief Rabbinate of Israel – if it and our generation are worthy
– can serve as an educational force of the highest value in the consolidation
and renaissance of national life. Let all those involved in the matter be told:
Beware of debasing the institution, for those who oppose on each side will
have occasion to rejoice at the calamity that will follow.
4. The Duty to Act Above Suspicion
Cr.A. 884/ 80
STATE OF ISRAEL v. GROSSMAN
(1982) 36(1) P.O. 405, 412-413
The respondent, a senior official in the Bank of Israel responsible for the issue of
linked State bonds, was charged with fraud and breach of trust under sec. 284 of
the Penal Law, 1977 for acquiring certain bonds for members of his family. It was
the Bank's policy to sell this series of bonds to various public savings and pension
funds, although nothing in the pertinent regulations so restricted the issue, and the
public could not therefore be prevented from buying these bonds if they so wished.
146
HOLDERS OF PUBLIC OFFICE
The lower court acquitted the respondent on the grounds that he was not in breach of
trust. Hence this appeal.
Tirkel J.: The question which the State has repeatedly posed for our
decision in this appeal…is whether the respondent's actions, described
below, amount to a misdeed …
There are offences which have no parameters in statutory provision but
only in the observations of the judiciary, which from time to time prescribes
them according to the act committed and the person committing it. The
danger confronting the court when dealing with such offences is whether by
its intention to set bounds to distance a public servant from an offence,
it finds itself including conduct which may be faulty in point of proper
administrative procedure, but which does not amount to an offence. We
must be very careful, as we have learned, "not to make the fence more
embracing than the principle" (Bereshit Rabbah 19:3).
The respondent instructed the United Mizrahi Bank to buy in the name
of members of his family for whom he held a power of attorney, bonds
from a series which any member of the public might purchase and the sale
of which was free. Does the fact that he did so when he was a senior
official in the Bank of Israel, administering State loans, give it the taint of
an offence?
I will not conceal that I am among those who propound the view that
rules rooted in ethics and morality should gradually become a part of public
and private law; neither is it illegitimate in my eyes to employ statutory and
case law for the enforcement of ethical and moral norms. Nevertheless, it
seems to me that the act of the respondent does not lie within an area to be
forbidden by criminal sanctions. No doubt the respondent should properly
have refrained from these purchases, just as every public servant is bidden
to desist from any private involvement in matters that are in or connected
with the area of his office and employment even indirectly, if only to
avoid slanderous gossip. There might also be room to say that his action
went beyond an "aesthetic imperfection" and perhaps he was guilty of an
ethical lapse, but no more than that.
Those who stood guard over the sacred vessels in the Temple abstained
from any act – even the most legitimate – that might give rise to an
iota of suspicion that they had betrayed the confidence of the public,
in order to abide by the dictum, "You shall be clean before the Lord
and before Israel" (Num. 32:22), from which the Sages inferred that "a
person should satisfy all mankind as he should satisfy the All Present''
(Y. Shekalim 3:2: Yoma 38a). I fear that the respondent has not satisfied
mankind, but he has satisfied the All Present and should not, therefore, be
treated as a sinner.
147
PART THREE: SOCJAL AND ADMIIJSTRATIVE REGULATION
5. Minor Appointees and Setting an Example
H.C. 178/81
JAFER v. ODEH et al.
{1982) 36(1) P.D. 40, 48
The petitioner, a member of a local council, was convicted of discourteous conduct
towards a passenger he was carrying in his taxi and taking him beyond his destination,
contrary to the Traffic Regulations, 1961. He was also convicted offalse imprisonment
of the passenger. The first respondent, chairman of the Council, informed the petitioner
that his seat on the Council had become vacant because of these convictions, involving
as they did ignominious conduct. The appeal concerns the question of whether these
offences indeed involve ignominy.
Shilo J.: It is doubtful whether the public regards every person elected to a
relatively minor executive office as an example to them of elevated moral
behavior.
Our Sages distinguished between scholars who should serve as a model
to the public, and persons engaged in public affairs; they said that a
scholar whose "garment becomes stained" is liable to the death penalty
(Shabbat 114a), whilst persons occupied in public affairs should not be
appointed to administer the community unless they carry "a basket of
reptiles" on their backs so that if they become arrogant they can be told
to look behind them (Yoma 22b).
In dealing with the petitioner's offence here, we find that although he
was rightly condemned for what he did, his behaviour was essentially a
thoughtless act committed when he was momentarily excited by a dispute
on the merits of which he probably thought he was justified. It therefore
does not seem that the offences of which he was convicted are ignominious
in the sense of the relevant law.
6. Appointment of Rabbi
See:
ABUD)
v.
MINISTER OF RELIGIOUS AFFAIRS
148
et al., p. 145.
HOLDERS OF PUBLIC OFFICE
7. Duty of Rabbi With Regard to Political Queries
H.C. 291/17
BILET et al. v. GOREN et al.
(1975) 29(1) P.D. 98, 103-106
The petitioners sought to prevent the respondents (the Chief Rabbis} from changing a
previous decision of theirs, of which the National Religious Party had been informed,
making the participation of that party in the Government conditional upon a change
in the definition of "Who is a Jew''.
Kister J.: Is there anything wrong in a party consulting the rabbis? It seems
to me that there is nothing faulty in that. Every Jew of some competence
may ask himself whether some act is or is not contrary to the halakhah. If
he cannot rely on his own judgment, he should ask a scholar of authority,
even if not a publicly-appointed rabbi. Where the rabbi who is being asked
has been accepted by the public (as a neighborhood or municipal rabbi
or as a Chief Rabbi), he is obliged to deal with the question addressed
to him. In fact the meaning of "rabbi" is "teacher", a teacher of the
law in religious matters (moreh hora'ah). Every religion, it should be
remembered, has its spiritual leaders, its priests, whose task it is to teach
the members of their community the principles and rules of the faith.
If a person is denied the possibility of asking his leaders and mentors
to reply and to teach, freedom of speech as well as freedom of religion are
in fact destroyed.
From the distinction between law and religion, it follows that the answers
of the teacher (here, the rabbi) have no legal force or effect unless legal
power has been conferred upon him in a particular area. Without such
power, the consequence of the rabbi's teachings is a matter of conscience,
of morals, and the decision to submit to them or not rests with the
questioner.
The fact that the question affects not simply matters of prayer forms,
dietary laws or mourning customs, is of no consequence. The Jewish
religion, or as some call it the Torah, extends to every aspect of life,
including the political arena. It is not at all extraordinary for a Jew
to inquire of the rabbi whether he may, from the viewpoint of religion
and conscience, accept some office. The rabbi will ponder the actualities
of the situation, consider the pros and cons, before telling him how to
act. I emphasize again that such instruction has no legal force and if it
is not followed, no legal sanction exists.
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Regarding the rabbi's obligation to reply, even when publicly appointed,
we should remember that the rabbi may himself have doubts, in which event
he will put the question to another rabbi in whom he places confidence.
There is no legal directive laying down to whom he may turn. The rule is
that "it is not the position that honours the man but the man who honours
the position." Thus, some seventy years ago, a leading rabbi of Jerusalem,
R. E.D. Rabinovitz-Teomim, addressed questions to the rabbi of a small
town in Galicia, R. S.M. Hacohen (see Resp. Maharsham, 2:210).
During the period of the Sanhedrin, the situation was indeed different,
and Maimonides writes (M. T Mamrim I :4) that at that time there was no
dispute over the rule that the Supreme Court sitting in the Chamber of
Hewn Stones in Jerusalem decided all doubts.
In later generations, attempts were made to resurrect central rabbinical
institutions. In the Ottoman Empire there was the Haham Bashi (Chief
Rabbi), with a Rabbinical Council having exclusive jurisdiction in religious
matters. Alongside it, a lay council existed. This form of organisation of
the Jewish community was confirmed by the Sultan in 1865. In Palestine
there presided a Haham Bashi who was subject to the Chief Rabbi of
Constantinople (see I. Englard in 22 haPraklit (1965) 68, 71).
I cannot say what the standing of the Rabbinical Council of
Constantinople was in the rabbinical world, and whether the rabbis of
Palestine addressed their doubts to it or vice versa. From the halakhic
viewpoint its reputation depended on the personalities who constituted
it, i.e. whether all its members were superior in their learning and other
qualities to the other rabbis of their time: its royal warrant was in itself
not a decisive factor. Nevertheless, as regards the agencies of the state,
recognition of the Council was important since all religious matters were
subject to its exclusive control.
At the end of the First World War, R. Kook and other religious leaders
conceived the idea of an institution defined as A Supreme Court, a commission of great rabbis, in our holy capital
of Jerusalem, having a prescribed number of members .of renown,
among them a group of persons of authority and dignity in world
Jewry, including outstanding Torah scholars, wise and righteous and
experienced in the ways of the world (see Hazan haGe'ulah 297).
R. Uziel uses similar terms in a responsum he wrote in 1920 whilst serving as
Rabbi of Jaffa (Resp. Mishpetei Uziel, Hoshen Mishpat I) which concludes
as follows:
I hereby call upon all our Rabbis in Palestine and in the Diaspora:
"Let great and honoured Rabbis, the shepherds of the people and its
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well-wishers, join forces in the work of building our spiritual Temple,
of restoring to Jerusalem its former glory and making it the spiritual
and political centre of the Jewish people, whence the Torah will go
forth and answers be given to all questions that confront the Jewish
Settlement and call for a religious solution."
All this demonstrates the aspirations of those who conceived the idea of
the Chief Rabbinate, its composition and its tasks.
At the beginning of 1921, the Chief Rabbinate was set up and its
establishment was publicised by the Secretary of State in a public notice
dated 18 March 1921 (see N. Bentwich, legislation of Palestine, Vol. 2,
392-93); the Chief Rabbis, the Rabbinical Council and a body of Lay
Councillors were chosen thereunder, the Palestine Government according
recognition to the Council and every rabbinical court approved by it as
"the sole authorities of Jewish law." This was followed by enactments
dealing with the Chief Rabbinate.
In fact, the Chief Rabbinical Council acted inter alia as a High Court of
Appeal against judgments of the rabbinical courts until the establishment
of the Rabbinical Court of Appeal under the Dayanim Law, 1955,
composed of independent judges, with the Chief Rabbis continuing to
act as its Presidents.
There is no need here to review the statutory history regarding the Jewish
community and the rabbinate. I shall note only that no enactment details
the functions of the different kinds of rabbis – municipal, neighborhood
and congregational rabbis, members of the Rabbinical Council and the
Chief Rabbis. From time to time their powers in particular matters were
prescribed, among them powers of a legal nature (under the Dayanim
Law). This apart, mention may be made of the powers of supervising
shehitah (ritual slaughter), laid down by regulation under the Jewish
Community Rules. (It is doubtful whether these Rules are still in force in
view of an earlier judgment of this Court.) Mention may also be made of
the power to appoint judges under the Dayanim Law, 1955, candidates for
the rabbinate under the Election of Municipal Rabbis Regulations, 1966,
made by the Minister of Religious Affairs, and various other powers, that
may be defined as administrative, in the election of the Chief Rabbinical
Council.
As I said at the outset, however, the powers conferred upon the Chief
Rabbinical Council or the Chief Rabbis are not intended to affect their
status or moral authority as rabbis, teachers of the law and spiritual
leaders, since all are rabbis.
We return once more to the question of what are the conventional
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functions of a rabbi in Israel. No enactment deals with the subject and
apparently there is no need for any, since religion and religious law are not
the creation of the secular legislature and therefore one does not expect it
to intervene in the question of what the functions of religious leaders
should be in the field of religion. In fact, the area in which the rabbis operate
is widely known. They are the religious judges of the community, they
deliver sermons, answer questions addressed to them, and some on their
own initiative address themselves to matters concerning their members.
They take part in religious ceremonies and also busy themselves with the
material and spiritual needs of the community and give religious guidance
by giving classes in Torah and other subjects. They try to restore peaceful
relations and settle disputes amongst people and between spouses.
The first part of art. 83 of the Palestine Order in Council establishes the
principle of freedom of religion and conscience and the second part, the
autonomy of the religious communities, subject to the law. In the wake
of this section, the Religious Communities (Organization) Ordinance was
enacted, empowering the Palestine Government to promulgate regulations.
Among these were the Jewish Community Rules, the purpose of which
was to determine the organisation of the Yishuv (Jewish Community) as
a "religious community": legal power was given to the rabbis and the
Chief Rabbinical Council in various matters, and in those areas where no
such powers were granted the rabbis act only under their religious and
moral authority.
The Chief Rabbis also engage in these tasks and may certainly respond
to all those who address questions to them and will surely do so when the
question is of national, not merely local, dimension. Just as the individual
rabbi may be questioned, so may the group of rabbis who together
constitute the Chief Rabbinical Council, especially when the Chief Rabbis
wish to consult with it. There is no need to deal with the other functions
of the Chief Rabbinical Council or its status in point of religious authority,
since that does not arise here.
In conclusion, this Court has no reason to intervene when a person
enquires of a rabbi whether he may, from the religious-halakhic viewpoint,
accept some office, and there is nothing wrong if he chooses to ask not a
rabbinical scholar who holds no rabbinical post but a rabbi appointed
under state law. Nor is there anything wrong in the question having a
political aspect; more than that, rabbis may address themselves to the
community without any question having being asked.
Accordingly there is no justification for granting this petition.
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H.C 732/84
SABAN M.K. v. MINISTER OF RELIGIOUS AFFAIRS et al.
(1986) 40(4) P.D. 141, 153
The second respondent, R. Ovadiah Yosef, is a judge in the Supreme Rabbinical Court,
and he also serves as a member of the body known as the Council of Sages. The
petitioner argued that R. Yosef engages in widespread political activity in the framework
of his membership of this Council, and inter alia, he determines the political line
of the Shas Party. Such activity, according to the petitioner, is not in keeping
with his position as a judge. In his reply to the order nisi, R. Yosef remarks that
his activity follows naturally from his position as a religious and spiritual leader,
who advises the many people who turn to him. He also believes that the position
of a judge in a religious court (i.e. a dayan) differs from that of a secular judge, for a
dayan is also a rabbi, and the role of the rabbi, by its very nature, is to be involved in
communal life, to advise and help with advice and spiritual support all those who turn
to him.
Goldberg J.: When a dayan is appointed by virtue of the Dayanim Law, he
wears two crowns: that of the Rabbinate, and that of the judiciary of the
religious courts. A teacher of the Law and pastor with the one crown, in
the sense, "And I made known the statutes of the Lord and his Laws"
(Ex.. 18:16), and a judge "between man and his neighbour" (loc. cit.) with
the other crown. However, I do not intend to dwell on the definitions
of the tasks, but rather, on a substantive distinction. The greatest power
of the Rabbinate lies in its moral authority, and extends to those who come
to "seek the Lord", whereas the authority of the judges who hear a case
is not dependent upon the wishes of the parties, but is coerced, in the
framework of the judicial system set in place by the legislature. In this
area, the dayanim fulfill the prescript, "and they shall judge the people"
with all their views and opinions.
It is this distinction between the two roles that places a limit on the
political involvement of a dayan. A dayan – and a regular judge as
well – who involves himself in political life is not only damaging the
image of the judiciary as an independent body in the eyes of the public,
but such involvement is also contrary to the fundamental principle of the
separation of powers between the judiciary and other state authorities.
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8. "Important Personage" and Trading Agreements
See: DICKER v. MOCH et al, Part 8, Obligations, p. 646.
9. Moreh Hora'ah
H.C. 29/ 55
DAYAN v. MINISTER OF RELIGIOUS AFFAIRS eta/.
( 19S5) 9 P.D. 997, 1002-1004
Silberg J.: In these proceedings, an order nisi issued by this Court on 4 April
1955 is being contested. The question here involved, to put it briefly, is
the validity of the election of members of the Rabbinical Council, and
more particularly of the esteemed R. Nissim, one of the two Chief Rabbis
of Israel. Because of the great public importance of the question, the
Attorney-General exercised his statutory powers and appeared in court to
argue on behalf of the Government that the order be dismissed …
Likewise we reject outright and without hesitation the other submission
of counsel for the petitioner that R. Nissim was not a "Rabbi" within the
meaning of the Regulations, neither for ten years nor for a lesser period, and
he is therefore ineligible for election as Chief Rabbi. Counsel has overlooked
the broad meaning of the term hara 'ah (instruction) in the compound noun
moreh hora'ah (qualified rabbi). The term is certainly not confined to
those who decide the law regarding religious prohibitions and permissions
or to those holding an official position such as neighborhood rabbi. R.
Ishmael (ben Elisha), a leading Tannah, was "an authority in Israel"
( Gittin 58a) not only with respect to the decisions he gave in the cases
brought before him but largely in connection with his interpretations of
the halakhah, the special methods (the thirteen hermeneutical principles
and others) he developed for the study and understanding of the Torah.
It was also said of another Tannah, R. Hannina, that he became "a
religious authority" (moreh hora'ah) (Nazir 29b), as is demonstrated in
the Jerusalem Talmud (Y. Nazir 4:6 adfin. 196): "R. Elazar bar Tzadok
said 'I saw him sitting and expounding [the Torah] in Yavneh.' " Of
the Sages of the Talmud, Samuel is the only one whose title as moreh
hora'ah refers to his appointment as a judge (Ketubot 79a and Rashi ad
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/oc.). Nor is the meaning attached to horeh and hora'ah (ruling) in the
Tractate Horayot the exclusive meaning of the term. It is said of R.
Ashi and Rabina who edited and completed the Talmud that "they conclude
(authentic) teaching" (so/ hora'ah) (Baba Metzia 86a). Alfasi, Maimonides
and Rosh are known as "the three pillars of hora'ah", obviously not
because of their activities as judges nor because those who came after
them followed their decisions, but because of their great legal writings
(Hilkhot haRif, Yad haHazakah and so on-which are both hora'ah par
excellence and the "pillars of hora'ah" at the same time). Shmuel haNagid
in his Introduction to the Talmud writes that "hora 'ah is the tradition
regenerated by the scholars in the communities and schools regarding the
commandments-it is this that is called hora 'ah."
On the other hand, the same term and its various inflections are found
in some sources in a more limited and technical sense, such as "this is
the halakhah but not the practical ruling of law (en morin ken)" (Baba
Kama 30b; cf. Rashi ad loc. and following him Hoshen Mishpat 414:1
and Rema ad loc. who refer to a still more limited meaning of the term).
Another example is, "he may decide (horeh) ritual law, he may decide
(yadin) civil law" (Sanhedrin 5a; see also Kritot 13b).
We can see how extensive is the meaning of the term, and how it embraces
many connotations. R. Nissim is, on any view, one of Israel's great scholars
of the Torah, very much at home in the Talmud and the Codes, a scholar
who for decades has responded to his many inquirers, among them famous
rabbis to whom he has speedily sent responsa and opinions both on ritual
law and on civil law. He is thus moreh hora'ah not only in the State of
Israel, but throughout the Jewish world, and it is beyond all doubt that he
meets the rabbinical criteria set by the regulation-making authority.
10. Authority of Rabbi to Disqualify Ritual Slaughterer
H.C. 371/67
FOGEL v. LEVINGER et al.
(196&) 22(1) P.D. 344, 346-348, 350-351
The first respondent, the rabbi of Nehalim, declared the slaughtering of animals by the
petitioner,- the settlements shohet (ritual slaughterer), to be ritually unfit. On application
by the petitioner, the District Rabbinical Court decided that no other shohet should
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be engaged by the settlement. The first respondent persisted in declaring the animals
slaughtered by the petitioner ritually unfit. On his refusal to have the matter heard in the
rabbinical court, a "warrant of refusal" was issued against the respondent, under which
the petitioner was at liberty to embark upon proceedings in a secular court.
Kister J.: This is indeed an unusual case. A shohet may often sue his
employer in a monetary claim, but here the dispute is not between the
shohet and the settlement which at one point gave him notice of dismissal
but between the shohet as such and the local rabbi over the fitness of
the slaughtering…
For a person to act as a shohet, he must possess, in addition to knowledge
of the laws of shehitah (ritual slaughter) and suitable physical qualities
(such as good eyesight, and a steady and quick hand), the character of a
God-fearing Jew. This requirement precedes all others, since the community
relies upon him for proper slaughtering and examination of the carcass;
those who are believers are very meticulous in matters of the dietary laws,
much having been written about forbidden food, apart from the prohibition
itself. Thus Luzatto observes in his Mesi/at Yesharim, ch. 11:
He who is lenient (about forbidden food) simply destroys
himself.. .. Forbidden foods introduce real impurity into the mind and
soul….Thus every thinking Jew will regard forbidden food as poisonous
or as containing an element of poison, for if he so regards it, could he
lightly partake of it …
Accordingly, the acceptance of a shohet and his disqualification is left
exclusively to the decision of the rabbis and God-fearing inspectors, who
have authority to supervise his activities and to declare his slaughtering
unfit when they decide that he lacks any of the necessary qualities and
that no confidence is to be reposed in him.
Since the present case involves disqualification, it should be noted that
a shohet is dealt with very strictly indeed, and even insubordination or
insolence to the local supervising rabbi is a cause for disqualification, at
least temporarily, until the shohet is penitent and acts more circumspectly
in his social relations as befits a learned man, or is subjected to stricter
supervision.
As for insolence to the local rabbi, Natziv writes in Resp. Meshiv Davar,
2:8:
More than any other Jew, a shohet is warned not to make light of the
respect due to the rabbi but to stand in awe of him, thus ensuring that
he will not act improperly in slaughtering, which requires great caution.
And he returns to the same point in his very next responsum.
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In the same vein I could cite other authorities and many responsa on
the functions of the shohet, his disqualification and the like, but I shall
content myself with referring to a handful of the sources concerning the
matters that have arisen here, without going into the reasoning.
Disqualification of a shohet, especially when permanent, is deemed to be
a matter of criminal law (see e.g. Resp. Sho'el uMeshiv, 2:87), particularly
when he has young children dependent on him (Hu/lin 18a), and his
slaughtering is not to be declared unfit lightly. That is in fact the situation
in the present case.
The authorities approach the question on the basis of the following
Talmudic passage (Hullin 18a):
There was a shohet who did not present his knife for examination by
Raba ben Hinena. The latter put him under ban, removed him from
his post and declared his meat trefah (ritually unfit). Mar Zutra and
R. Ashi happened to visit Raba ben Hinena and he said to them, "Would
you look into this matter, for small children are dependent on him?" R.
Ashi inspected the knife and found it satisfactory and declared it fit.
Thereupon Mar Zutra said to him, "Are you not apprehensive about
overruling the Sage?" R. Ashi replied, "We acted as his agents."
This incident illustrates the strictness with which the acts and conduct of a
shohet are treated: nevertheless, there is a readiness to consider each case
carefully and find some exoneration by bringing it before other rabbinical
scholars for them to consider, out of a wish not to harm him at all, or to
harm him as little as possible.
Thus we have found a long series of responsa by the earlier and
later authorities addressed to rabbis, communities and ritual slaughterers,
which did not disqualify the shohet, and in particular not permanently,
except after very close enquiry (see e.g. the responsum in Resp. Sho'el
uMeshiv mentioned above). Where the shohet erred innocently and there
was reason to believe that he desired and was able to repair his ways, he was
only removed temporarily and required to do whatever might be necessary,
for instance to study anew the laws of shehitah or amend the particular
fault, or improve his behaviour generally and solemnly undertake to act in
a given manner, or to be properly supervised by another shohet…
It may be noted that the real significance of "a warrant of refusal"
is that it constitutes a declaration that the person involved has refused
to appear in court and is regarded from the viewpoint of religious law
to be in contempt of court. Various consequences ensue. According to
Resp. Bet Yaakov (1696 ed.) 33, the effect of a judge refusing to appear
is that he may no longer sit in judgment because "he that is not judged
cannot judge others" (see Sanhedrin 18b). I will not go into the question
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of when a rabbinical court will order a local rabbi to appear before it
and on his refusal issue a warrant of refusal against him. At all events,
a warrant of refusal was issued here and although an appeal is available
and there is also the Rabbinical Council with appropriate powers and
functions, the first respondent did nothing to have the warrant set aside
nor to remove the case to another rabbinical court, if that is what he
really wished, nor to have the warrant cancelled in the accepted manner.
All this apart, it should be emphasised that in spite of the Rabbinical
Court deciding that no other shohet should replace him in the settlement,
which means that the petitioner was presumed to be still fit to act, the
first respondent found it right, on his own initiative, to disqualify the
petitioner's slaughtering without obtaining a decision from this Court or
any other court or the Chief Rabbinate.
As we saw in the passage from Hullin, cited above, the rabbi who had
disqualified a shohet turned to other scholars on his own initiative for
them to consider carefully whether they could find in favour of the shohet.
On examining the many responsa, we aiso found cases where a rabbi
believed it right to disqualify a shohet, but he nevertheless applied to
other rabbis of acknowledged repute, asking how the shohet concerned
should be dealt with and whether he ought to be disqualified.
The first respondent, in his affidavit of reply, stated that upon
consideration, he had reached the conclusion that in accordance with
religious law, the petitioner's slaughtering was not ritually fit and, therefore,
consumption of the meat of the animals slaughtered by him was forbidden
to all those who came under his jurisdiction. He added that this ruling
would only be varied "if so directed by his rabbis" by virtue of the
command, "according to the law they teach you".
Although the first respondent withdrew his affidavit on being requested by
the petitioner to be cross-examined and to deliver particulars, I nevertheless
quote from it to indicate the attitude of the first respondent. It emerges from
that affidavit that although he admitted he was not the final authority
and would rely upon his rabbis, he did not say whether he had in fact
asked for their opinion or obtained from them prior approval for what he
did, either as regards his refusal or, after they had considered the matter,
as regards support of the shohet's disqualification. Apparently this was not
the case.
The first respondent claims in his affidavit – a claim that was repeated
by counsel in court – that he had only ruled on the disqualification of
the shohet's slaughtering for the people of the settlement; however, the
disqualification taints the shohet, especiaily as he was dismissed, and he
will surely find it difficult to get an appointment elsewhere …. ln general
when one scholar prohibits something, others will find it difficult to permit it.
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HOLDERS OF PUBLIC OFFICE
The authorities have advised caution in dismissing a person from a post
in case people suspect that the dismissal was due to some fault.
Here the local rabbi held explicitly that the petitioner was unfit to
act as a shohet so that as regards the injury done to the petitioner, the
disqualification extends beyond the sphere of the relationship of a rabbi
and a member of his community.
I am prepared to assume that the first respondent, as a community rabbi,
is concerned about local kashrut (observance of the dietary laws) and he
probably does not rely on the petitioner's slaughtering, but the Torah also
bids us to take into account the honour and livelihood of the shohet.
Obviously that is not to be at the expense of kashrut, but it seems to me that
there is good reason to presume that the judges of the District Rabbinical
Court…are also solicitous about kashrut and would take great care to
prevent a Jew from stumbling in matters of trefah (ritually unfit food).
It is indeed possible to dismiss a shohet without declaring his slaughtering
unfit, but to declare that a shohet's slaughtering is unfit requires a very wide
discretion.
11. The Right to Resign
H.C. 205 / 60, 210/60
ABUDI v. MINISTER OF RELIGIOUS AFFAIRS
(1960) 14 P.D. 2020. 2021 , 2023-2033
Under discussion was the validity of the dismissal of one member and the resigna1ion
of three members of the Elections Committee for the Chief Rabbinical Council, who
were appointed to their posts by the outgoing Chief Rabbinate, and the effect of such
dismissal and resignations on its ability to operate and to exist.
Silberg J.: A person appointed to a once-off public post can resign with the
consent of those who appointed him – with the resignation of three of the
members of the Elections Committee, the other members have not become
the majority of a committee, but only of a deficient, truncated committee,
which cannot fulfill the task set for the full committee until those who
appointed the resigning members appoint replacements for them.
On the other hand, I do not accept the Attorney General's argument,
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according to which the three resignations are invalid despite the fact that
they were accepted by the Chief Rabbinical Council. We have found no
basis for such a radical assumption, neither in Jewish law nor in the
Common law nor in Israeli case law.
(a) Jewish Law: The Attorney General found support for his argument
in the halakhah, from a source in Tosefta Baba Batra, to the effect that
a guardian who held the property of orphans, or who had begun to deal
with their affairs, cannot withdraw from the task (see Hoshen Mishpat,
and Rema 290:23; Maggid Mishneh to M. T. Nahalot 10:5 in the name of
Ramban and Rashba), but that in no way constitutes evidence. It is not
necessary to dwell on the point that a member of the committee is not a
"guardian", and the affairs of the committee do not constitute "orphans'
property". Even if we stretch the point and equate these two unlike things,
the three members who resigned never even began to deal with the affairs of
the committee, and they received no "property" into their hands. Moreover,
even the above laws applying to the guardian are not absolute: there is still
room for the resignation of the guardian when it is justified, e.g. "if he
leaves the city" (see Rema ad loc. and Bet Yosefto Tur ad loc. in the name
of Rashbatz), so that even a real guardian can, in certain circumstances,
be released from his task.
B. Dismissal of Public Servant
I. Compulsory Dismissal
H.C. 218/65
GABBAI v. MAYOR OF JERUSALEM
(1966) 20(1) P.D. 41, 48
The petitioner had agreed to leave his job with the Municipality on certain terms, but
subsequently argued that the provisions of the law relating to municipal employees had
not been observed.
Kister J.: In a case which dealt with the dismissal of an employee by
the Ramat Gan Municipality, I expressed the view that even without the
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Jabour law applicable in the present case, a permanent employee could not
be dismissed for a criminal act as long as he had not been informed of the
charge against him and as long as he had not been given an opportunity
to be heard on the charge. That was also the view of the Court that tried
the matter. I also expressed the view that permanent public servants of
the petitioner's kind are to be deemed "lawfully appointed as long as they
exert themselves at their work, since the public appointed them" (M. T.
Sekhirut 6:7) …
In the same case I cited Hazon Ish in dealing with the present matter,
and expressing the approach of Jewish law. I shall quote further from the
works of this outstanding scholar (Baba Kama 23:2):
When they act badly they lose their rights since the employer does not
engage them to that end. It may also be said that public administrators
are commanded to remove them for the benefit of the public and to
choose those who are worthy and upright…. An individual too can force
the public to remove them.
Although these remarks do not constitute a legal precedent, they may be
adopted with respect to public servants because of their persuasive force.
Whilst an individual cannot apply to court to compel a town council to
dismiss an employee who has "acted badly", it is nevertheless the duty of
the council to ensure that the public services for which it is responsible
are entrusted to persons who carry out their tasks faithfully.
See: A. v. ATTORNEY GENERAL. p. 167.
2. Grounds for Dismissal and Restrictions
H.C. 290/65
ALTAGAR v. MAYOR OF RAMAT GAN eta/.
(1966) 20(1) P.D. 29, 35-37, 39-40
The Municipality dismissed the petitioner from his permanent post as editor of its
magazine because of adverse conduct. The petitioner submitted that the respondents
had acted contrary to the rules of natural justice since they had not asked him to
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state his case against his "arbitrary dismissal". The respondents, on the other hand,
submitted that giving an employee the opportunity to be heard was not one of the
pre-conditions to dismissal, as set out in the Municipalities Ordinance.
Kister J.: In the long tradition of the Jewish people it has been the practice,
in accordance with Jewish law sources – the Talmud and later authorities
– not to dismiss lightly a person appointed to public office or a post in a
public institution.
Maimonides in M. T. Klei haMikdash 4:21, writes: "A person is never
removed from a position of authority among Jews unless he is corrupt."
Obviously this rule will not apply to one who has been chosen only for
a specific period and leaves when it expires. In his Responsa (Mekitzei
Nirdamim ed., 110), Maimonides starts out with the following: "What
every intelligent and learned person must know is that it is not proper to
remove a person from the office he holds on mere hearsay."
Although there are employees of public institutions who are not treated
as having a post of authority, in respect of these also, where they have
not been engaged for a particular task or a defined period or where they
may be dismissed under the terms of their employment after prior notice,
the rule or custom has taken root to dismiss them only for cause. It
should be emphasized that the petitioner is a permanent employee of
the respondent.
All Jewish communities acted in accordance with the above rule. The
responsa literature is replete with cases relating mainly to communal
employees – rabbis, ritual slaughterers, cantors and beadles, and although
it is difficult to define beadles as people possessing authority, the custom
has applied to them as well.
The halakhic sources, the Talmud and later authorities, deal with
craftsmen and other office holders appointed or engaged by the public,
such as tree planters, ritual slaughterers, scribes and elementary school
teachers: see Baba Metzia 109a and M. T. Sekhirut 10:7. Of this type of
employee, it has been said that "the community should not act inequitably
in removing without cause those it appoints" (R. I.Z. Meltzer, Even haEzel,
in the chapter dealing with Maimonides' rule as above).
For the same reason the dismissal of persons appointed for life is
questionable.
A responsum of 1913 (Resp. Tzur Ya'akov 195, by R. A.Y.H. Hurwitz)
dealt with the case of a beadle who was appointed by the wardens of
a community for one year only, but continued to serve for three more
years. Another person then tried to get the post. It was held that although
this was not a case in which the employee may not lawfully be replaced,
it is nevertheless improper to replace him. The author found fault in
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HOLDERS OF PUBLIC OFFICE
the other person who sought to oust the incumbent beadle (a form
of trespass) as well as in the community: "It is not fitting to dismiss
the first one and deprive him during his lifetime of his livelihood … without
good and sound reason."
Resp. Tzur Yaakov was written by a Polish rabbi and the responsum cited
is one of very many. In almost every collection of responsa that appeared
in Eastern Europe, where this kind of literature was widespread, such cases
abound. But it is not only in the responsa literature of European rabbis, but
also in that of Sephardi and Oriental rabbis that many similar responsa are
to be found. For example, Resp. Rav Paalim, Hoshen Mishpat 6 by R.
Hayim, rabbi of Baghdad (first printed in Jerusalem in 1905), was given in
reply to a question addressed to him from Persia. See also Resp. Bakesh
Shlomoh 20, by R. S. ibn Danan, published in Casablanca in 1931.
In the United States as well, responsa dealing with the dismissal of
employees of Jewish institutions may be found: for example, Resp. Jggrot
Moshe, Hoshen Mishpat 76, 77, by R. Feinstein, published in 1964, which
concerns teachers.
Finally, the judgments of the rabbinical courts in Israel contain cases on
the same subject.
One of these that is of interest to us is a judgment of the Haifa Rabbinical
Court dealing with the dismissal of the cleaner of a school (Rabbinical
Court Judgments, Vol. 3, 91). A comprehensive survey of the halakhah in
this field is presented in the decision.
It is said of the type of employees referred to in Baba Metzia 109 and M. T.
Sekhirut 10:7 and also in Hoshen Mishpat 306:8, that if they have acted
badly or wrongly in their work (provided it was not a single occurrence)
they may be dismissed without any forewarning …. Yet the evidence must
be put to them and they may not be dismissed if they work properly. If,
however, they were taken on for a defined period or it is local usage not
to give notice of dismissal or forewarning, that will not apply.
One of the reasons for prohibiting dismissal without grounds – as
prescribed in the halakhic literature – is to avoid the likely suspicion
that the dismissed person was at fault: see Mishnah Berurah to Orah
Hayim 53:25:73 s.v. "a hazan is not dismissed from his post…" The same
applies wherever it is not customary to make the appointment for a fixed
period, and the reason is that no one should suspect that the employee has
been found at fault.
Nevertheless, according to Jewish law, when a public servant has evidently
acted badly the community leaders are commanded to dismiss him in order
to prevent harm to the public: see Hazon Ish, Baba Kama 23:2 as cited
above. Similar observations are frequent in the halakhic literature …
As regards the taking of evidence, questions arise in Jewish law as to the
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PART THREE: SOCIAL AND ADMINISTRATIVE REGULATION
effectiveness of hearing evidence when not in the presence of the person
concerned. In Resp. Sho'el uMeshiv (Tanina ed., 2:77), R. Nathansohn
observes, with respect to a shohet being declared unfit, that to disqualify
a person permanently so that he loses his vocation – as distinct from
suspension for a few months – is like a matter of criminal law, and
there is no value generally in hearing witnesses in the absence of the party
against whom the evidence is proffered.
Here the petitioner has a single argument, i.e. that the town council
should have heard him, and in my opinion that indeed is the least that
was required. The duty to hear the party concerned is basic not only
in Jewish law but also in English law. Rema has explained the point
well in his Responsa (108):
It is therefore obvious that one cannot deal with a matter without
hearing the submissions of the defendant, for the Torah has said: 'listen
to your fellow men.' Although it is obvious, we may learn from God
who trod the path of justice and whose ways are ways of pleasantness
and whose paths are paths of peace. He began by asking Adam, 'Who
told you that you are naked?' And also of Cain He asked, 'Where is
Abel your brother?' And all this in order to hear what they had to
say. How much more so is it for the ordinary mortal. Likewise our
Sages understood, 'Let Me go down and see' as teaching judges not to
decide a case until they have heard and understood, and thence that
even where it is clear to them that the defendant is guilty, they must at
least first hear his arguments.
/1,C. 192/68
BASHKIN v. MAYOR OF TEL AVIV-YAFFOetal.
(1968) 22(2) P.D, 744, 748
The petitioner was the widow of a man who for a long time had been licensed to provide
deck-chairs along the beach. She now complained of the refusal of the Municipality to
renew the licence.
Kister J.: I would not conclude from these remarks that the Municipality
may cease granting the licence or permit without reason and give it to
another. The rule is that a local authority may not act arbitrarily. In
the Jewish tradition, there is a rule regarding employed persons which I
cited in Altagar v. Mayor of Ramat Gan [see above] that164
HOLDERS OF PUBLIC OFFICE
The community should not act inequitably in removing without cause
those it appoints (R. I.E. Meltzer, Even haEzel to M. T. Sekhirut 10:7)… .It
is not befitting to dismiss the first one and deprive him during his
lifetime of his livelihood … without a good and sound reason (Resp. Tzur
Ya'akov).
M. 2859/59. 2134/59
KABALA et al. v. BASYOK et al.
(1959-60) 21 /'.M. 75. 77. 79-80
Kister J.: The applicants are members of a workers' settlement organised
as a co-operative society.
As became clear during the hearing of the application, two groups exist
among the members of the settlement, with conflicting views about its
management. It was not clarified – and the question is not important
– whether the differences arise out of party political considerations. Apart
from differences of opinion, there appear to be mutual recriminations and
suspicion.
It was shown that in February 1959, the administrative bodies of
the settlement, i.e. the management and supervisory committees, each
comprising five members, were constituted by agreement between the two
groups. The settlement was affiliated under a control agreement to the
Labour Farmers' Cooperative.
On 17 June 1959, four of the members of the supervisory committee of
the society and two of the society's members on the said control agreement
gave notice of their resignation and also submitted an application signed
by eighty-three members of the settlement calling for elections to the
administrative and supervisory committees. I would point out that the total
number of members of the settlement is one hundred and fifty-two, and
eighty-three is therefore an absolute majority. Although I did not establish
that all the eighty-three members in fact signed, for the purposes of these
proceedings I shall assume they did so …
t think I may define the relationship that can be expected to prevail
between the majority and minority in a cooperative society… as our Sages
defined the relationship between Bet Hillel and Bet Shammai ( Yevamot 14b),
that in spite of their differences of opinion, "they showed love and friendship
to each other in order to observe 'Love ye truth and peace'" (Zech. 8:19).
It follows from the basic principles of cooperation that the majority
should not treat the minority contemptuously and, relying on their number,
165
PART THREE: SOCIAL AND ADMINISTRATIVE REGULATION
do as they wish with regard to the latter. Rather, the majority should aim
at fair relation with the minority.
In view of the above, let us see whether, according to principles of
cooperation, it may be established that when a majority of the members
are dissatisfied with a committee member they can remove him from the
committee even in the middle of his term.
A member may very well feel that he is not generally accepted, and may
himself desire to resign. On the other hand, if a member is normally elected
for a complete fiscal year, it is unfair to remove him in the middle of the
year unless he has acted in a manner that renders him unfit to continue
to serve, or unless he falls ill or the like and cannot act. If a group
proceeds otherwise and members are dismissed in the middle of their term
without weighty reason, it may lead to instability and to daily attempts at
proposing elections, and persons of good will may well hold back from
accepting office.
In addition, the removal of a member before the expiry of his term
gives rise to suspicion about him, and that is the reason why Jewish law
has stipulated that the public may not recall a person appointed for a
particular period before its expiry unless some very important ground
exists to do so (see Yoreh De'ah 257:2, glosses of Rema and Shakh ad
foe.; Orah Hayim 53:26 and commentators).
C.S.A. J_/71
A. v. ATTORNEY-GENERAL
(1971) 25(2) P.D. 365, 368-369
After being convicted in court of taking a bribe, the petitioner came before the Civil
Service Disciplinary Committee and was sentenced to dismissal with pension. The
representative of the Department where he had worked appeared before the committee
and recommended that he should not be dismissed, but should be transferred to a
different post at a lower grade, one that did not involve contact with the public.
Kister J.: I do not…overlook the gravity of bribery and the danger of an
employee taking bribes, even if he believes that he will not stray in the
slightest from his duty.
Our Sages emphasized (in explanation of the Scriptural statement that
bribery blinds) the fact that bribery renders the receiver and giver of one
mind … and therefore the receiver cannot contend that although he took a
bribe, he did not pervert the law (see Mekhilta to Parshat Mishpatim, 20,
and Ketubot 105b).
166
HOLDERS OF PUBLIC OFFICE
The danger is particularly great where the matter involves the discretion
of the employee. Here the appellant had a certain discretion. I therefore
agree that the offence must be treated with the utmost severity.
See: A. v. STATE OF ISRAEL. p. 178.
C. Reinstatement of Public Servants
1. Conditions of Reinstatement
Ch.A.A. 1/68
A. v. ATTORNEY-GENERAL
()968) 22(1) P. D. 673, 676-679
The appellant, a lawyer, was convicted offorging legal documents and circulating them
and he was sentenced to imprisonment. The District Disciplinary Tribunal suspended
him for five years from membership in the Chamber of Advocates, but the National
Disciplinary Tribunal, upon appeal, ordered his total disbarment.
Kister J.: In dealing with the question of whether the Tribunal ought to
have decided to disbar the appellant, I think it is fitting to have recourse
to the approach taken by Jewish law and the tradition of the Jewish
people regarding wrongdoers, their disqualification from public office and
the conditions for reinstating them.
Mention should also be made of the new winds blowing throughout
the world regarding the rehabilitation of people who have stumbled into
transgression, as well as the tendency to wipe the slate clean after a
prescribed period if no further offences have meanwhile been committed.
Briefly, the attitude of Jewish law is as follows:
On the one hand, every instance of falsehood or suspicion of falsehood
is treated with seriousness: the Talmud and the Shu/khan Arukh contain
167
PART THREE: SOCIAL AND ADMINISTRATIVE REGULATION
many examples where the use of a stratagem, including one for gaining a
procedural advantage, is deemed an infraction of the directive, "From a
false matter distance yourself' (Ex. 23:7) (see Shevu'ot 30b- 31a).
On the other hand, a person who commits an offence and pays the
penalty imposed on him or the damages he is ordered to pay and thereby
does his penance in full, or otherwise behaves in a manner that satisfies
the court that he has mended his ways for the future – such a person
is to be forgiven and not reminded of his earlier misdeeds; in general
he becomes fit once more to fill the office in which he served when he
erred. The rule is, " 'Lest thy brother shall be dishonoured before thine
eyes' (Deut. 25:3) – on having received flogging he is like your brother"
(Makkot 23a). As regards the penitent, it is forbidden even to remind him
of his former deeds (Baba Metzia 58b).
Furthermore, we must mention the rule that craftsmen and those holding
various public posts (the sources mention inter alia scribes who draw up
deeds) who fail even innocently in carrying out their duties "are dismissed
without warning, for they may only continue as long as they exert themselves
in their work, because they are appointed by the community" (M. T.
Sekhirut 10:7, based on Baba Metzia 109; see also Hoshen Mishpat 306).
As for reappointing them, if they were dismissed because of an offence,
their penitence is scrutinized very carefully to establish whether they have
really repented and are not deceiving the court in their wish to return
to their previous post, and whether they can be trusted for the future
(Hoshen Mishpat 34:33-34 (Rema); see also Bet Yosef to Tur, Hoshen
Mishpat 34, the main source of which is Sanhedrin 25a).
Instances may occur in which punishment and penance will not suffice
to enable a person to be restored to his position, but the examples that
I will cite from the sources demonstrate that that is so only in the most
extreme instances, either because of the nature of the evidence or because
of the post the offender held.
(a) A person who killed inadvertently and was exiled to a city of refuge
will never go back to his post "because this monstrous mishap occurred
through him" (see M. T. Sanhedrin 17:8; M. T. Roze'ah 7: 14). There is
the case, reported in Resp. Ribash 251, of the judge whose son struck
a person with fatal effect with the encouragement of his father; Ribash
directed that the judge be removed and never again appointed to public
office.
(b) A High Priest who sins is flogged and then is restored to his office
(M. T. Klei haMikdash 4:22). In contrast, the head of a Talmudic Academy
(in the sense of President of the Sanhedrin) is not restored, not even as an
ordinary member of the Sanhedrin (M. T. Sanhedrin 17:9). The reasons for
the latter ruling are: (I) that it is for his own benefit not to be restored
168
HOLDERS OF PUBLIC OFFICE
in case his colleagues despise him (Kesef Mishneh ad loc.); (2) the fear
that he may seek revenge on those who condemned him (Pnei Moshe to
Y. Sanhedrin 2:1); (3) Resp. Radbaz, 6: 2078, gives two further reasons,
i.e. the profanation involved when a person in such a prestigious position
sins, and the function of the President to guide the people in the right
way, as it is written, " 'Gather yourselves together, yea gather together'
(Zeph. 2:1) …first adorn yourself and then adorn others" (Baba Metzia 107b
– a play on the Hebrew for "gather" and "adorn" [ "be just to yourselves
before requiring it of others'). ..
(c) The priests of the High Places and of the Temple of Onias, and a
fortiori priests who served idols, were forever barred from serving in the
Temple (Menahot l09a; M.T. Bi'at haMikdash 9:13-14).
These instances are exceptional but they emphasize the rule that the door
is not to be bolted in the face of those who repent sincerely and honestly.
Indeed in the absence of any weighty reason to the contrary, restoration to
their previous way of life, their occupation and post should be facilitated
for the penitent.
I should observe that disqualification for five years, like the suspension
of the appellant here by the District Disciplinary Tribunal, is also to be
found in Jewish law, as in the case brought before Rosh (Resp. Rosh 58:4)
concerning a cantor/slaughterer who had committed perjury and was
suspended for such a period.
See: A.
V.
ATTORNEY GENERAL. p. 167.
169
Chapter Two
PUBLIC AUTHORITIES
A. Principles of Action
l. The Right to be Heard
See: BERMAN et al. v. MINISTER OF THE INTERIOR, Part 4, Regulation of the Courts, p.
307.
See: Al TAGAR v. MAYOR OF RAMAT GAN et a/., p. 161.
C.A. 413/80
A.
V.
B.
(19Sl) 35(3) AD. 57, 88-89
The question arising in this appeal was whether a husband has any standing in law in
an application brought by his wife ro terminate a pregnancy.
Elon J.: The firm rule, rooted in the decisions of this Court, is that –
… an administrative body-and even a purely administrative body (not
quasi-judicial) – will not be permitted to inflict upon the citizen any
injury to his person, property, occupation, status or the like unless he is
given a fair opportunity to be heard regarding the prospective injury. The
scope of this obligation and the mode of the opportunity will obviously
depend on the actual circumstances of the matter at hand (per Silberg
J. in H.C. 3/58 Berman v. Minister of the Interior (1958) 14 P.D. 1508).
The right of a person to be heard before any decision is taken that might
injure him is already to be found in Scripture: "Hear the causes between
your brethren and judge them righteously" (Deut. I: 16) and its roots go
back to the dawn of humanity:
170
Chapter One
HOLDERS OF PUBLIC OFFICE
A. Status and Obligations
I. Immunity of President
H.C. 65 / 51
JABOTINSKY et al. v. PRESIDENT OF THE STATE OF ISRAEL
(1951) 5 P.D. 801, 807
Smoira P.: This is an application for an order nisi against the President
of the State, requiring him to appear and show cause why he should
not call upon one of the one hundred and twenty members of the First
Knesset to form a new government and, if he fails to do so, why members
should not be called upon in turn until one of them succeeds in forming
a new government that will enjoy the confidence of the Knesset. The
petition is consequent upon a vote of the Knesset of no-confidence in
the Government led by Mr. Ben-Gurion, on 14 February 1951, and the
submission to the President of the Government's resignation on the same
day …
Objection to the appearance of the Attorney-General at this stage having
been dismissed by us, he submitted the arguments that: (a) this Court
will not entertain an application against the President of the State; and
(b) this Court is not competent to hear this application.
The first argument was, in fact, that the President of the State enjoys
general immunity. The second argument was that in accordance with
existing law in this country, this Court lacks jurisdiction to deal with this
application.
141
PART THREE: SOCJAL AND ADMJNISTRATIVE REGULATION
Although in the course of his submissions the Attorney-General shifted
his main argument from immunity to want of jurisdiction, he initially
spoke at length on the first argument and evoked broad-ranging contrary
arguments from counsel for the petitioners. In my opinion, both sets of
arguments suffer from false analogies. We will not decide any constitutional
problem of the State of Israel in 1951 regarding immunity of the President
of the State by relying upon the statement of the Mishnah in Sanhedrin that
"the king may neither judge nor be judged", nor upon the incident relating
to the servant of King Jannai, cited in the Gemara to the Mishnah.
Incidentally, were we to try to resolve the problem according to these
sources, we would first have to decide whether the law concerning the
President of the State of Israel is the same as the law in regard to the kings
of the House of David who might judge and be judged, or to the kings of
Israel who might not judge nor be judged (Sanhedrin 19a) since they
did not submit to the Torah and therefore some misfortune might ensue
(Maimonides). Nor, on the other hand, will we decide the matter by basing
ourselves on verses in the Bible which speak of the princes of Israel and
the tribes (Num. 7:6-13) or the verse in Ezekiel (46: IO): "And the prince,
when they go in, shall go in the midst of them, and when they go forth,
they shall go forth together."
2. Judicial Character of Public Representatives
See:
MARCIANO
v.
ELECTIONS COMMITTEE FOR OFAKIM LOCAL COUNCIL.
p. 175.
H.C. 24/ 66
MALKA v. LEVI et al.
(1966) 20(1) P.D. 651,657
The petitioner was elected to the local council of Bet-Shemesh as a member of a
particular party but subsequently transferred his allegiance to another party. The next
day he relented, but subsequently he again joined the opposition coalition. Some time
afterwards he wrote to the chairman of the council informing him of his resignation,
and the person next on the list of candidates was invited to take his place. The petitioner
argued that he had never signed a letter of resignation, but rather, had signed a blank
sheet.for some other purpose, at the request ofa colleague, and the latter had completed
the sheet with his resignation and passed it on to the chairman.
142
HOLDERS OF PUBLIC OFFICE
Kister J.: The question facing us is whether the petitioner comes to us
with clean hands. As to that, my opinion is as follows: A person elected to
serve as a council member, and who has accepted this appointment, must
fill this public office in a trustworthy manner and act in accordance with
his conscience, fearlessly and for the benefit of local affairs. A person of
conscience, elected by some party on a list bearing its name and on the
basis of pre-election declarations, who finds after a time that his party
is acting or requires him to act in a manner that does not seem right to
him, is certainly not bound to act against his conscience. Nevertheless,
he should consider whether he still represents all or some of the people
who elected him as their representative in reliance on his declarations, and
he should certainly give serious thought to whether he ought to continue
to serve or resign. He may possibly find that he need not resign but may
continue to act in line with his ideas, especially when it is manifest that
some members of the party that chose him have split the party-line and
have adopted his approach.
The course this petitioner pursued is far from being that of a public
representative with a conscience. Not only did he waver between the
parties in a manner that cannot be satisfactorily explained as befitting
a person occupying a responsible public office, but the explanation he
gave of his shifts of position as being, according to him, the result of
threats made by members of the party by which he was chosen shows that
he himself admits that any threat is sufficient to influence his behavior: he
did not even try to protect himself by going to the police or to a lawyer.
As for his other shifts, their frequency and the way they were effected
do not indicate that they were the consequence of weighty consideration
of how he should act in public office. Although the true motives of his
frequent political wanderings were not disclosed, we were given during the
hearings some hints that speak for themselves.
I should repeat also what I have mentioned on another occasion when
dealing with the duties of a person who holds public office, that Jewish
tradition has already laid down the rule that those appointed to engage in
public purposes are like judges (see Hoshen Mishpat 37 (Rema); Terumat
haDeshen 214; Noda biYehudah, Mahadura Kamma, Hoshen Mishpat 20,
etc.).
143
PART THREE: SOCIAL AND ADMINISTRATIVE REGULATION
H.C. 312/66
SALEM v. MINISTER OF THE INTERIOR et al.
(1967) 21(1) P.D. 59. 64
In February 1965, most ofthe settlements in the Emek Lod Region elected representatives
to the local council. In one settlement no elections were held, and the respondent
appointed the petitioner as the representative for that settlement. A few months later,
following a resolution of the new council, the Minister revoked the appointment of the
petitioner and replaced him by one of the respondents.
Kister J.: The rule in respect of elected legislative and governmental bodies
is that voters have no right to require their representatives to consult with
them before taking action or to proceed according to their instructions.
If that were the practice, the stability of governmental authority would
be shaken. The law does not require an elected person to have regard
to every change in the mood of the electorate: that is a matter for his
conscience alone since he was elected for that purpose.
The approach of Jewish law to the question of publicly elected persons is
noteworthy. I have mentioned more than once-most recently in Malkha v.
Levi (see above)-that those appointed to engage in public affairs are like
judges (see Hoshen Mishpat 37). Following Rashi to Sanhedrin 23a (s.v.
yatza din emet le'amito) who says that with regard to arbitration, the
parties will abide by the decision of the arbitrators because "the losing
party thinks: 'I myself chose one of them and had he been able to find
in my favour, he would have done so'; and the arbitrators themselves
may well find in favour of both parties since they chose them", Terumat
haDeshen (344) explains that representatives of a minority of the public
are like arbitrators, and since they were elected, those who voted for
them rely on them to act honestly and fairly even when they decide in
favour of the other side. The criterion is that arbitrators should be men of
truth and not deceitful, as stated by Hazon /sh (Baba Batra 5:1):
The main aim of those choosing representatives is that the latter should
be of honest character and knowledgeable …. But that is not really like
arbitration where each side chooses its own arbitrator, since elected
individuals cannot go thoroughly into the law and act with precision
even though they possess the powers of a court.
It follows that in the case of publicly elected persons, Jewish law requires
the electorate to rely upon them to carry out their functions faithfully and
honestly. Hence there is no reason to dismiss them before expiry of the term
for which they were elected if their only fault is that they did not heed the
state of mind of that part of the public that elected them.
144
HOLDERS OF PUBLIC OFFICE
See: KATABI et al '. CHAIRMAN OF THE LOCAL COUNCIL OF KIRYAT EKRON, Part 4,
Regulation of the Courts, p. 253.
3. Public Consultation Before Appointment
F.H. 21/6-0
ABUD! v. MINISTER OF RELIGIOUS AFFAIRS et al.
(196-0) 14 P.D. 2045, 2084-2085
The High Court of Justice, sitting as a bench of three judges, held that the removal of
one member and the resignation of three other members of the Election Committee of
the Chief Rabbinical Council were of no legal effect and did not affect the competence
of the Committee.
Silberg J.: Let us finally examine the problem of the Committee from the
viewpoint of Jewish law. Indeed, the State of Israel is said to be a state of
law and not a state of the Torah, but it is difficult to divorce the law
entirely from the Torah when the appointment of rabbis is involved. I
have no doubt at all that Jewish law requires the Chief Rabbinical Council
to have an influential voice in the Election Committee, a fact which obliges
both sides to arrive at some compromise and do their utmost as a united
body to hold the elections in due and proper manner. The Talmud tells
us:
A leader is not appointed over a community without its first being
consulted, since it is written: "See, the Lord hath called Bezalel by
name" (Ex. 35:30). The Holy One Blessed be He said to Moses, "Do
you consider Bezalel worthy?" He replied: "If he is worthy in Your eyes,
he is surely worthy in my eyes." God then said to him: "Nevertheless,
go and speak to them [the people]." He went and asked Israel: "Do you
think Bezalel is worthy?" They replied: "If he is worthy in the eyes of
the Holy One Blessed be He and in your eyes, surely he is worthy in
our eyes" (Berakhot 55a).
See to what pains the Holy One Blessed be He went to ascertain the wishes
of the people of Israel.
This wonderful passage from the Talmud is quoted many times in the
Responsa literature in connection with the appointment of rabbis and
145
PART THREE: SOCIAL AND ADMINISTRATIVE REGULATION
communal leaders. There is the story of one rabbi who dominated the
community on the basis of an order of a most exalted authority and held
the office of rabbi by force and against the community's wishes. Hatam
Sofer wrote:
This rabbi, be he so lofty as the cedar and mighty as the oak, has not acted
rightly with the people by using his exalted position to dominate them.
Where is his Talmudic wisdom? Has it not been said, "A leader is
not appointed over a community without first consulting it"…. How
is a person appointed unnominated, without asking the majority of
the community what are their wishes? …. And if that is the case with a
leader of prayer who possesses no governing authority over the people,
neither to judge them nor to give them orders, … the more so with a rabbi
appointed to lead the public without consultation, with the result that
the public is forced to accept him against its will. Obviously that is not
well done (Resp. Hatam Sofer, Hoshen Mishpat 19).
Additional commentary is superfluous for it would only detract from the
value of what the Jewish Sages have said, and a fortiori regarding the
"installation of judges" who are to serve as Chief Rabbis in Israel.
The Chief Rabbinate of Israel – if it and our generation are worthy
– can serve as an educational force of the highest value in the consolidation
and renaissance of national life. Let all those involved in the matter be told:
Beware of debasing the institution, for those who oppose on each side will
have occasion to rejoice at the calamity that will follow.
4. The Duty to Act Above Suspicion
Cr.A. 884/ 80
STATE OF ISRAEL v. GROSSMAN
(1982) 36(1) P.O. 405, 412-413
The respondent, a senior official in the Bank of Israel responsible for the issue of
linked State bonds, was charged with fraud and breach of trust under sec. 284 of
the Penal Law, 1977 for acquiring certain bonds for members of his family. It was
the Bank's policy to sell this series of bonds to various public savings and pension
funds, although nothing in the pertinent regulations so restricted the issue, and the
public could not therefore be prevented from buying these bonds if they so wished.
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The lower court acquitted the respondent on the grounds that he was not in breach of
trust. Hence this appeal.
Tirkel J.: The question which the State has repeatedly posed for our
decision in this appeal…is whether the respondent's actions, described
below, amount to a misdeed …
There are offences which have no parameters in statutory provision but
only in the observations of the judiciary, which from time to time prescribes
them according to the act committed and the person committing it. The
danger confronting the court when dealing with such offences is whether by
its intention to set bounds to distance a public servant from an offence,
it finds itself including conduct which may be faulty in point of proper
administrative procedure, but which does not amount to an offence. We
must be very careful, as we have learned, "not to make the fence more
embracing than the principle" (Bereshit Rabbah 19:3).
The respondent instructed the United Mizrahi Bank to buy in the name
of members of his family for whom he held a power of attorney, bonds
from a series which any member of the public might purchase and the sale
of which was free. Does the fact that he did so when he was a senior
official in the Bank of Israel, administering State loans, give it the taint of
an offence?
I will not conceal that I am among those who propound the view that
rules rooted in ethics and morality should gradually become a part of public
and private law; neither is it illegitimate in my eyes to employ statutory and
case law for the enforcement of ethical and moral norms. Nevertheless, it
seems to me that the act of the respondent does not lie within an area to be
forbidden by criminal sanctions. No doubt the respondent should properly
have refrained from these purchases, just as every public servant is bidden
to desist from any private involvement in matters that are in or connected
with the area of his office and employment even indirectly, if only to
avoid slanderous gossip. There might also be room to say that his action
went beyond an "aesthetic imperfection" and perhaps he was guilty of an
ethical lapse, but no more than that.
Those who stood guard over the sacred vessels in the Temple abstained
from any act – even the most legitimate – that might give rise to an
iota of suspicion that they had betrayed the confidence of the public,
in order to abide by the dictum, "You shall be clean before the Lord
and before Israel" (Num. 32:22), from which the Sages inferred that "a
person should satisfy all mankind as he should satisfy the All Present''
(Y. Shekalim 3:2: Yoma 38a). I fear that the respondent has not satisfied
mankind, but he has satisfied the All Present and should not, therefore, be
treated as a sinner.
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5. Minor Appointees and Setting an Example
H.C. 178/81
JAFER v. ODEH et al.
{1982) 36(1) P.D. 40, 48
The petitioner, a member of a local council, was convicted of discourteous conduct
towards a passenger he was carrying in his taxi and taking him beyond his destination,
contrary to the Traffic Regulations, 1961. He was also convicted offalse imprisonment
of the passenger. The first respondent, chairman of the Council, informed the petitioner
that his seat on the Council had become vacant because of these convictions, involving
as they did ignominious conduct. The appeal concerns the question of whether these
offences indeed involve ignominy.
Shilo J.: It is doubtful whether the public regards every person elected to a
relatively minor executive office as an example to them of elevated moral
behavior.
Our Sages distinguished between scholars who should serve as a model
to the public, and persons engaged in public affairs; they said that a
scholar whose "garment becomes stained" is liable to the death penalty
(Shabbat 114a), whilst persons occupied in public affairs should not be
appointed to administer the community unless they carry "a basket of
reptiles" on their backs so that if they become arrogant they can be told
to look behind them (Yoma 22b).
In dealing with the petitioner's offence here, we find that although he
was rightly condemned for what he did, his behaviour was essentially a
thoughtless act committed when he was momentarily excited by a dispute
on the merits of which he probably thought he was justified. It therefore
does not seem that the offences of which he was convicted are ignominious
in the sense of the relevant law.
6. Appointment of Rabbi
See:
ABUD)
v.
MINISTER OF RELIGIOUS AFFAIRS
148
et al., p. 145.
HOLDERS OF PUBLIC OFFICE
7. Duty of Rabbi With Regard to Political Queries
H.C. 291/17
BILET et al. v. GOREN et al.
(1975) 29(1) P.D. 98, 103-106
The petitioners sought to prevent the respondents (the Chief Rabbis} from changing a
previous decision of theirs, of which the National Religious Party had been informed,
making the participation of that party in the Government conditional upon a change
in the definition of "Who is a Jew''.
Kister J.: Is there anything wrong in a party consulting the rabbis? It seems
to me that there is nothing faulty in that. Every Jew of some competence
may ask himself whether some act is or is not contrary to the halakhah. If
he cannot rely on his own judgment, he should ask a scholar of authority,
even if not a publicly-appointed rabbi. Where the rabbi who is being asked
has been accepted by the public (as a neighborhood or municipal rabbi
or as a Chief Rabbi), he is obliged to deal with the question addressed
to him. In fact the meaning of "rabbi" is "teacher", a teacher of the
law in religious matters (moreh hora'ah). Every religion, it should be
remembered, has its spiritual leaders, its priests, whose task it is to teach
the members of their community the principles and rules of the faith.
If a person is denied the possibility of asking his leaders and mentors
to reply and to teach, freedom of speech as well as freedom of religion are
in fact destroyed.
From the distinction between law and religion, it follows that the answers
of the teacher (here, the rabbi) have no legal force or effect unless legal
power has been conferred upon him in a particular area. Without such
power, the consequence of the rabbi's teachings is a matter of conscience,
of morals, and the decision to submit to them or not rests with the
questioner.
The fact that the question affects not simply matters of prayer forms,
dietary laws or mourning customs, is of no consequence. The Jewish
religion, or as some call it the Torah, extends to every aspect of life,
including the political arena. It is not at all extraordinary for a Jew
to inquire of the rabbi whether he may, from the viewpoint of religion
and conscience, accept some office. The rabbi will ponder the actualities
of the situation, consider the pros and cons, before telling him how to
act. I emphasize again that such instruction has no legal force and if it
is not followed, no legal sanction exists.
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Regarding the rabbi's obligation to reply, even when publicly appointed,
we should remember that the rabbi may himself have doubts, in which event
he will put the question to another rabbi in whom he places confidence.
There is no legal directive laying down to whom he may turn. The rule is
that "it is not the position that honours the man but the man who honours
the position." Thus, some seventy years ago, a leading rabbi of Jerusalem,
R. E.D. Rabinovitz-Teomim, addressed questions to the rabbi of a small
town in Galicia, R. S.M. Hacohen (see Resp. Maharsham, 2:210).
During the period of the Sanhedrin, the situation was indeed different,
and Maimonides writes (M. T Mamrim I :4) that at that time there was no
dispute over the rule that the Supreme Court sitting in the Chamber of
Hewn Stones in Jerusalem decided all doubts.
In later generations, attempts were made to resurrect central rabbinical
institutions. In the Ottoman Empire there was the Haham Bashi (Chief
Rabbi), with a Rabbinical Council having exclusive jurisdiction in religious
matters. Alongside it, a lay council existed. This form of organisation of
the Jewish community was confirmed by the Sultan in 1865. In Palestine
there presided a Haham Bashi who was subject to the Chief Rabbi of
Constantinople (see I. Englard in 22 haPraklit (1965) 68, 71).
I cannot say what the standing of the Rabbinical Council of
Constantinople was in the rabbinical world, and whether the rabbis of
Palestine addressed their doubts to it or vice versa. From the halakhic
viewpoint its reputation depended on the personalities who constituted
it, i.e. whether all its members were superior in their learning and other
qualities to the other rabbis of their time: its royal warrant was in itself
not a decisive factor. Nevertheless, as regards the agencies of the state,
recognition of the Council was important since all religious matters were
subject to its exclusive control.
At the end of the First World War, R. Kook and other religious leaders
conceived the idea of an institution defined as A Supreme Court, a commission of great rabbis, in our holy capital
of Jerusalem, having a prescribed number of members .of renown,
among them a group of persons of authority and dignity in world
Jewry, including outstanding Torah scholars, wise and righteous and
experienced in the ways of the world (see Hazan haGe'ulah 297).
R. Uziel uses similar terms in a responsum he wrote in 1920 whilst serving as
Rabbi of Jaffa (Resp. Mishpetei Uziel, Hoshen Mishpat I) which concludes
as follows:
I hereby call upon all our Rabbis in Palestine and in the Diaspora:
"Let great and honoured Rabbis, the shepherds of the people and its
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HOLDERS OF PUBLIC OFFICE
well-wishers, join forces in the work of building our spiritual Temple,
of restoring to Jerusalem its former glory and making it the spiritual
and political centre of the Jewish people, whence the Torah will go
forth and answers be given to all questions that confront the Jewish
Settlement and call for a religious solution."
All this demonstrates the aspirations of those who conceived the idea of
the Chief Rabbinate, its composition and its tasks.
At the beginning of 1921, the Chief Rabbinate was set up and its
establishment was publicised by the Secretary of State in a public notice
dated 18 March 1921 (see N. Bentwich, legislation of Palestine, Vol. 2,
392-93); the Chief Rabbis, the Rabbinical Council and a body of Lay
Councillors were chosen thereunder, the Palestine Government according
recognition to the Council and every rabbinical court approved by it as
"the sole authorities of Jewish law." This was followed by enactments
dealing with the Chief Rabbinate.
In fact, the Chief Rabbinical Council acted inter alia as a High Court of
Appeal against judgments of the rabbinical courts until the establishment
of the Rabbinical Court of Appeal under the Dayanim Law, 1955,
composed of independent judges, with the Chief Rabbis continuing to
act as its Presidents.
There is no need here to review the statutory history regarding the Jewish
community and the rabbinate. I shall note only that no enactment details
the functions of the different kinds of rabbis – municipal, neighborhood
and congregational rabbis, members of the Rabbinical Council and the
Chief Rabbis. From time to time their powers in particular matters were
prescribed, among them powers of a legal nature (under the Dayanim
Law). This apart, mention may be made of the powers of supervising
shehitah (ritual slaughter), laid down by regulation under the Jewish
Community Rules. (It is doubtful whether these Rules are still in force in
view of an earlier judgment of this Court.) Mention may also be made of
the power to appoint judges under the Dayanim Law, 1955, candidates for
the rabbinate under the Election of Municipal Rabbis Regulations, 1966,
made by the Minister of Religious Affairs, and various other powers, that
may be defined as administrative, in the election of the Chief Rabbinical
Council.
As I said at the outset, however, the powers conferred upon the Chief
Rabbinical Council or the Chief Rabbis are not intended to affect their
status or moral authority as rabbis, teachers of the law and spiritual
leaders, since all are rabbis.
We return once more to the question of what are the conventional
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functions of a rabbi in Israel. No enactment deals with the subject and
apparently there is no need for any, since religion and religious law are not
the creation of the secular legislature and therefore one does not expect it
to intervene in the question of what the functions of religious leaders
should be in the field of religion. In fact, the area in which the rabbis operate
is widely known. They are the religious judges of the community, they
deliver sermons, answer questions addressed to them, and some on their
own initiative address themselves to matters concerning their members.
They take part in religious ceremonies and also busy themselves with the
material and spiritual needs of the community and give religious guidance
by giving classes in Torah and other subjects. They try to restore peaceful
relations and settle disputes amongst people and between spouses.
The first part of art. 83 of the Palestine Order in Council establishes the
principle of freedom of religion and conscience and the second part, the
autonomy of the religious communities, subject to the law. In the wake
of this section, the Religious Communities (Organization) Ordinance was
enacted, empowering the Palestine Government to promulgate regulations.
Among these were the Jewish Community Rules, the purpose of which
was to determine the organisation of the Yishuv (Jewish Community) as
a "religious community": legal power was given to the rabbis and the
Chief Rabbinical Council in various matters, and in those areas where no
such powers were granted the rabbis act only under their religious and
moral authority.
The Chief Rabbis also engage in these tasks and may certainly respond
to all those who address questions to them and will surely do so when the
question is of national, not merely local, dimension. Just as the individual
rabbi may be questioned, so may the group of rabbis who together
constitute the Chief Rabbinical Council, especially when the Chief Rabbis
wish to consult with it. There is no need to deal with the other functions
of the Chief Rabbinical Council or its status in point of religious authority,
since that does not arise here.
In conclusion, this Court has no reason to intervene when a person
enquires of a rabbi whether he may, from the religious-halakhic viewpoint,
accept some office, and there is nothing wrong if he chooses to ask not a
rabbinical scholar who holds no rabbinical post but a rabbi appointed
under state law. Nor is there anything wrong in the question having a
political aspect; more than that, rabbis may address themselves to the
community without any question having being asked.
Accordingly there is no justification for granting this petition.
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H.C 732/84
SABAN M.K. v. MINISTER OF RELIGIOUS AFFAIRS et al.
(1986) 40(4) P.D. 141, 153
The second respondent, R. Ovadiah Yosef, is a judge in the Supreme Rabbinical Court,
and he also serves as a member of the body known as the Council of Sages. The
petitioner argued that R. Yosef engages in widespread political activity in the framework
of his membership of this Council, and inter alia, he determines the political line
of the Shas Party. Such activity, according to the petitioner, is not in keeping
with his position as a judge. In his reply to the order nisi, R. Yosef remarks that
his activity follows naturally from his position as a religious and spiritual leader,
who advises the many people who turn to him. He also believes that the position
of a judge in a religious court (i.e. a dayan) differs from that of a secular judge, for a
dayan is also a rabbi, and the role of the rabbi, by its very nature, is to be involved in
communal life, to advise and help with advice and spiritual support all those who turn
to him.
Goldberg J.: When a dayan is appointed by virtue of the Dayanim Law, he
wears two crowns: that of the Rabbinate, and that of the judiciary of the
religious courts. A teacher of the Law and pastor with the one crown, in
the sense, "And I made known the statutes of the Lord and his Laws"
(Ex.. 18:16), and a judge "between man and his neighbour" (loc. cit.) with
the other crown. However, I do not intend to dwell on the definitions
of the tasks, but rather, on a substantive distinction. The greatest power
of the Rabbinate lies in its moral authority, and extends to those who come
to "seek the Lord", whereas the authority of the judges who hear a case
is not dependent upon the wishes of the parties, but is coerced, in the
framework of the judicial system set in place by the legislature. In this
area, the dayanim fulfill the prescript, "and they shall judge the people"
with all their views and opinions.
It is this distinction between the two roles that places a limit on the
political involvement of a dayan. A dayan – and a regular judge as
well – who involves himself in political life is not only damaging the
image of the judiciary as an independent body in the eyes of the public,
but such involvement is also contrary to the fundamental principle of the
separation of powers between the judiciary and other state authorities.
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8. "Important Personage" and Trading Agreements
See: DICKER v. MOCH et al, Part 8, Obligations, p. 646.
9. Moreh Hora'ah
H.C. 29/ 55
DAYAN v. MINISTER OF RELIGIOUS AFFAIRS eta/.
( 19S5) 9 P.D. 997, 1002-1004
Silberg J.: In these proceedings, an order nisi issued by this Court on 4 April
1955 is being contested. The question here involved, to put it briefly, is
the validity of the election of members of the Rabbinical Council, and
more particularly of the esteemed R. Nissim, one of the two Chief Rabbis
of Israel. Because of the great public importance of the question, the
Attorney-General exercised his statutory powers and appeared in court to
argue on behalf of the Government that the order be dismissed …
Likewise we reject outright and without hesitation the other submission
of counsel for the petitioner that R. Nissim was not a "Rabbi" within the
meaning of the Regulations, neither for ten years nor for a lesser period, and
he is therefore ineligible for election as Chief Rabbi. Counsel has overlooked
the broad meaning of the term hara 'ah (instruction) in the compound noun
moreh hora'ah (qualified rabbi). The term is certainly not confined to
those who decide the law regarding religious prohibitions and permissions
or to those holding an official position such as neighborhood rabbi. R.
Ishmael (ben Elisha), a leading Tannah, was "an authority in Israel"
( Gittin 58a) not only with respect to the decisions he gave in the cases
brought before him but largely in connection with his interpretations of
the halakhah, the special methods (the thirteen hermeneutical principles
and others) he developed for the study and understanding of the Torah.
It was also said of another Tannah, R. Hannina, that he became "a
religious authority" (moreh hora'ah) (Nazir 29b), as is demonstrated in
the Jerusalem Talmud (Y. Nazir 4:6 adfin. 196): "R. Elazar bar Tzadok
said 'I saw him sitting and expounding [the Torah] in Yavneh.' " Of
the Sages of the Talmud, Samuel is the only one whose title as moreh
hora'ah refers to his appointment as a judge (Ketubot 79a and Rashi ad
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/oc.). Nor is the meaning attached to horeh and hora'ah (ruling) in the
Tractate Horayot the exclusive meaning of the term. It is said of R.
Ashi and Rabina who edited and completed the Talmud that "they conclude
(authentic) teaching" (so/ hora'ah) (Baba Metzia 86a). Alfasi, Maimonides
and Rosh are known as "the three pillars of hora'ah", obviously not
because of their activities as judges nor because those who came after
them followed their decisions, but because of their great legal writings
(Hilkhot haRif, Yad haHazakah and so on-which are both hora'ah par
excellence and the "pillars of hora'ah" at the same time). Shmuel haNagid
in his Introduction to the Talmud writes that "hora 'ah is the tradition
regenerated by the scholars in the communities and schools regarding the
commandments-it is this that is called hora 'ah."
On the other hand, the same term and its various inflections are found
in some sources in a more limited and technical sense, such as "this is
the halakhah but not the practical ruling of law (en morin ken)" (Baba
Kama 30b; cf. Rashi ad loc. and following him Hoshen Mishpat 414:1
and Rema ad loc. who refer to a still more limited meaning of the term).
Another example is, "he may decide (horeh) ritual law, he may decide
(yadin) civil law" (Sanhedrin 5a; see also Kritot 13b).
We can see how extensive is the meaning of the term, and how it embraces
many connotations. R. Nissim is, on any view, one of Israel's great scholars
of the Torah, very much at home in the Talmud and the Codes, a scholar
who for decades has responded to his many inquirers, among them famous
rabbis to whom he has speedily sent responsa and opinions both on ritual
law and on civil law. He is thus moreh hora'ah not only in the State of
Israel, but throughout the Jewish world, and it is beyond all doubt that he
meets the rabbinical criteria set by the regulation-making authority.
10. Authority of Rabbi to Disqualify Ritual Slaughterer
H.C. 371/67
FOGEL v. LEVINGER et al.
(196&) 22(1) P.D. 344, 346-348, 350-351
The first respondent, the rabbi of Nehalim, declared the slaughtering of animals by the
petitioner,- the settlements shohet (ritual slaughterer), to be ritually unfit. On application
by the petitioner, the District Rabbinical Court decided that no other shohet should
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PART THREE: SOCIAL AND ADMINISTRATIVE REGULATION
be engaged by the settlement. The first respondent persisted in declaring the animals
slaughtered by the petitioner ritually unfit. On his refusal to have the matter heard in the
rabbinical court, a "warrant of refusal" was issued against the respondent, under which
the petitioner was at liberty to embark upon proceedings in a secular court.
Kister J.: This is indeed an unusual case. A shohet may often sue his
employer in a monetary claim, but here the dispute is not between the
shohet and the settlement which at one point gave him notice of dismissal
but between the shohet as such and the local rabbi over the fitness of
the slaughtering…
For a person to act as a shohet, he must possess, in addition to knowledge
of the laws of shehitah (ritual slaughter) and suitable physical qualities
(such as good eyesight, and a steady and quick hand), the character of a
God-fearing Jew. This requirement precedes all others, since the community
relies upon him for proper slaughtering and examination of the carcass;
those who are believers are very meticulous in matters of the dietary laws,
much having been written about forbidden food, apart from the prohibition
itself. Thus Luzatto observes in his Mesi/at Yesharim, ch. 11:
He who is lenient (about forbidden food) simply destroys
himself.. .. Forbidden foods introduce real impurity into the mind and
soul….Thus every thinking Jew will regard forbidden food as poisonous
or as containing an element of poison, for if he so regards it, could he
lightly partake of it …
Accordingly, the acceptance of a shohet and his disqualification is left
exclusively to the decision of the rabbis and God-fearing inspectors, who
have authority to supervise his activities and to declare his slaughtering
unfit when they decide that he lacks any of the necessary qualities and
that no confidence is to be reposed in him.
Since the present case involves disqualification, it should be noted that
a shohet is dealt with very strictly indeed, and even insubordination or
insolence to the local supervising rabbi is a cause for disqualification, at
least temporarily, until the shohet is penitent and acts more circumspectly
in his social relations as befits a learned man, or is subjected to stricter
supervision.
As for insolence to the local rabbi, Natziv writes in Resp. Meshiv Davar,
2:8:
More than any other Jew, a shohet is warned not to make light of the
respect due to the rabbi but to stand in awe of him, thus ensuring that
he will not act improperly in slaughtering, which requires great caution.
And he returns to the same point in his very next responsum.
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In the same vein I could cite other authorities and many responsa on
the functions of the shohet, his disqualification and the like, but I shall
content myself with referring to a handful of the sources concerning the
matters that have arisen here, without going into the reasoning.
Disqualification of a shohet, especially when permanent, is deemed to be
a matter of criminal law (see e.g. Resp. Sho'el uMeshiv, 2:87), particularly
when he has young children dependent on him (Hu/lin 18a), and his
slaughtering is not to be declared unfit lightly. That is in fact the situation
in the present case.
The authorities approach the question on the basis of the following
Talmudic passage (Hullin 18a):
There was a shohet who did not present his knife for examination by
Raba ben Hinena. The latter put him under ban, removed him from
his post and declared his meat trefah (ritually unfit). Mar Zutra and
R. Ashi happened to visit Raba ben Hinena and he said to them, "Would
you look into this matter, for small children are dependent on him?" R.
Ashi inspected the knife and found it satisfactory and declared it fit.
Thereupon Mar Zutra said to him, "Are you not apprehensive about
overruling the Sage?" R. Ashi replied, "We acted as his agents."
This incident illustrates the strictness with which the acts and conduct of a
shohet are treated: nevertheless, there is a readiness to consider each case
carefully and find some exoneration by bringing it before other rabbinical
scholars for them to consider, out of a wish not to harm him at all, or to
harm him as little as possible.
Thus we have found a long series of responsa by the earlier and
later authorities addressed to rabbis, communities and ritual slaughterers,
which did not disqualify the shohet, and in particular not permanently,
except after very close enquiry (see e.g. the responsum in Resp. Sho'el
uMeshiv mentioned above). Where the shohet erred innocently and there
was reason to believe that he desired and was able to repair his ways, he was
only removed temporarily and required to do whatever might be necessary,
for instance to study anew the laws of shehitah or amend the particular
fault, or improve his behaviour generally and solemnly undertake to act in
a given manner, or to be properly supervised by another shohet…
It may be noted that the real significance of "a warrant of refusal"
is that it constitutes a declaration that the person involved has refused
to appear in court and is regarded from the viewpoint of religious law
to be in contempt of court. Various consequences ensue. According to
Resp. Bet Yaakov (1696 ed.) 33, the effect of a judge refusing to appear
is that he may no longer sit in judgment because "he that is not judged
cannot judge others" (see Sanhedrin 18b). I will not go into the question
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of when a rabbinical court will order a local rabbi to appear before it
and on his refusal issue a warrant of refusal against him. At all events,
a warrant of refusal was issued here and although an appeal is available
and there is also the Rabbinical Council with appropriate powers and
functions, the first respondent did nothing to have the warrant set aside
nor to remove the case to another rabbinical court, if that is what he
really wished, nor to have the warrant cancelled in the accepted manner.
All this apart, it should be emphasised that in spite of the Rabbinical
Court deciding that no other shohet should replace him in the settlement,
which means that the petitioner was presumed to be still fit to act, the
first respondent found it right, on his own initiative, to disqualify the
petitioner's slaughtering without obtaining a decision from this Court or
any other court or the Chief Rabbinate.
As we saw in the passage from Hullin, cited above, the rabbi who had
disqualified a shohet turned to other scholars on his own initiative for
them to consider carefully whether they could find in favour of the shohet.
On examining the many responsa, we aiso found cases where a rabbi
believed it right to disqualify a shohet, but he nevertheless applied to
other rabbis of acknowledged repute, asking how the shohet concerned
should be dealt with and whether he ought to be disqualified.
The first respondent, in his affidavit of reply, stated that upon
consideration, he had reached the conclusion that in accordance with
religious law, the petitioner's slaughtering was not ritually fit and, therefore,
consumption of the meat of the animals slaughtered by him was forbidden
to all those who came under his jurisdiction. He added that this ruling
would only be varied "if so directed by his rabbis" by virtue of the
command, "according to the law they teach you".
Although the first respondent withdrew his affidavit on being requested by
the petitioner to be cross-examined and to deliver particulars, I nevertheless
quote from it to indicate the attitude of the first respondent. It emerges from
that affidavit that although he admitted he was not the final authority
and would rely upon his rabbis, he did not say whether he had in fact
asked for their opinion or obtained from them prior approval for what he
did, either as regards his refusal or, after they had considered the matter,
as regards support of the shohet's disqualification. Apparently this was not
the case.
The first respondent claims in his affidavit – a claim that was repeated
by counsel in court – that he had only ruled on the disqualification of
the shohet's slaughtering for the people of the settlement; however, the
disqualification taints the shohet, especiaily as he was dismissed, and he
will surely find it difficult to get an appointment elsewhere …. ln general
when one scholar prohibits something, others will find it difficult to permit it.
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The authorities have advised caution in dismissing a person from a post
in case people suspect that the dismissal was due to some fault.
Here the local rabbi held explicitly that the petitioner was unfit to
act as a shohet so that as regards the injury done to the petitioner, the
disqualification extends beyond the sphere of the relationship of a rabbi
and a member of his community.
I am prepared to assume that the first respondent, as a community rabbi,
is concerned about local kashrut (observance of the dietary laws) and he
probably does not rely on the petitioner's slaughtering, but the Torah also
bids us to take into account the honour and livelihood of the shohet.
Obviously that is not to be at the expense of kashrut, but it seems to me that
there is good reason to presume that the judges of the District Rabbinical
Court…are also solicitous about kashrut and would take great care to
prevent a Jew from stumbling in matters of trefah (ritually unfit food).
It is indeed possible to dismiss a shohet without declaring his slaughtering
unfit, but to declare that a shohet's slaughtering is unfit requires a very wide
discretion.
11. The Right to Resign
H.C. 205 / 60, 210/60
ABUDI v. MINISTER OF RELIGIOUS AFFAIRS
(1960) 14 P.D. 2020. 2021 , 2023-2033
Under discussion was the validity of the dismissal of one member and the resigna1ion
of three members of the Elections Committee for the Chief Rabbinical Council, who
were appointed to their posts by the outgoing Chief Rabbinate, and the effect of such
dismissal and resignations on its ability to operate and to exist.
Silberg J.: A person appointed to a once-off public post can resign with the
consent of those who appointed him – with the resignation of three of the
members of the Elections Committee, the other members have not become
the majority of a committee, but only of a deficient, truncated committee,
which cannot fulfill the task set for the full committee until those who
appointed the resigning members appoint replacements for them.
On the other hand, I do not accept the Attorney General's argument,
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PART THREE: SOCIAL AND ADMINISTRATIVE REGULATION
according to which the three resignations are invalid despite the fact that
they were accepted by the Chief Rabbinical Council. We have found no
basis for such a radical assumption, neither in Jewish law nor in the
Common law nor in Israeli case law.
(a) Jewish Law: The Attorney General found support for his argument
in the halakhah, from a source in Tosefta Baba Batra, to the effect that
a guardian who held the property of orphans, or who had begun to deal
with their affairs, cannot withdraw from the task (see Hoshen Mishpat,
and Rema 290:23; Maggid Mishneh to M. T. Nahalot 10:5 in the name of
Ramban and Rashba), but that in no way constitutes evidence. It is not
necessary to dwell on the point that a member of the committee is not a
"guardian", and the affairs of the committee do not constitute "orphans'
property". Even if we stretch the point and equate these two unlike things,
the three members who resigned never even began to deal with the affairs of
the committee, and they received no "property" into their hands. Moreover,
even the above laws applying to the guardian are not absolute: there is still
room for the resignation of the guardian when it is justified, e.g. "if he
leaves the city" (see Rema ad loc. and Bet Yosefto Tur ad loc. in the name
of Rashbatz), so that even a real guardian can, in certain circumstances,
be released from his task.
B. Dismissal of Public Servant
I. Compulsory Dismissal
H.C. 218/65
GABBAI v. MAYOR OF JERUSALEM
(1966) 20(1) P.D. 41, 48
The petitioner had agreed to leave his job with the Municipality on certain terms, but
subsequently argued that the provisions of the law relating to municipal employees had
not been observed.
Kister J.: In a case which dealt with the dismissal of an employee by
the Ramat Gan Municipality, I expressed the view that even without the
160
HOLDERS OF PUBLIC OFFICE
Jabour law applicable in the present case, a permanent employee could not
be dismissed for a criminal act as long as he had not been informed of the
charge against him and as long as he had not been given an opportunity
to be heard on the charge. That was also the view of the Court that tried
the matter. I also expressed the view that permanent public servants of
the petitioner's kind are to be deemed "lawfully appointed as long as they
exert themselves at their work, since the public appointed them" (M. T.
Sekhirut 6:7) …
In the same case I cited Hazon Ish in dealing with the present matter,
and expressing the approach of Jewish law. I shall quote further from the
works of this outstanding scholar (Baba Kama 23:2):
When they act badly they lose their rights since the employer does not
engage them to that end. It may also be said that public administrators
are commanded to remove them for the benefit of the public and to
choose those who are worthy and upright…. An individual too can force
the public to remove them.
Although these remarks do not constitute a legal precedent, they may be
adopted with respect to public servants because of their persuasive force.
Whilst an individual cannot apply to court to compel a town council to
dismiss an employee who has "acted badly", it is nevertheless the duty of
the council to ensure that the public services for which it is responsible
are entrusted to persons who carry out their tasks faithfully.
See: A. v. ATTORNEY GENERAL. p. 167.
2. Grounds for Dismissal and Restrictions
H.C. 290/65
ALTAGAR v. MAYOR OF RAMAT GAN eta/.
(1966) 20(1) P.D. 29, 35-37, 39-40
The Municipality dismissed the petitioner from his permanent post as editor of its
magazine because of adverse conduct. The petitioner submitted that the respondents
had acted contrary to the rules of natural justice since they had not asked him to
161
PART THREE: SOCIAL AND ADMINISTRATIVE REGULATION
state his case against his "arbitrary dismissal". The respondents, on the other hand,
submitted that giving an employee the opportunity to be heard was not one of the
pre-conditions to dismissal, as set out in the Municipalities Ordinance.
Kister J.: In the long tradition of the Jewish people it has been the practice,
in accordance with Jewish law sources – the Talmud and later authorities
– not to dismiss lightly a person appointed to public office or a post in a
public institution.
Maimonides in M. T. Klei haMikdash 4:21, writes: "A person is never
removed from a position of authority among Jews unless he is corrupt."
Obviously this rule will not apply to one who has been chosen only for
a specific period and leaves when it expires. In his Responsa (Mekitzei
Nirdamim ed., 110), Maimonides starts out with the following: "What
every intelligent and learned person must know is that it is not proper to
remove a person from the office he holds on mere hearsay."
Although there are employees of public institutions who are not treated
as having a post of authority, in respect of these also, where they have
not been engaged for a particular task or a defined period or where they
may be dismissed under the terms of their employment after prior notice,
the rule or custom has taken root to dismiss them only for cause. It
should be emphasized that the petitioner is a permanent employee of
the respondent.
All Jewish communities acted in accordance with the above rule. The
responsa literature is replete with cases relating mainly to communal
employees – rabbis, ritual slaughterers, cantors and beadles, and although
it is difficult to define beadles as people possessing authority, the custom
has applied to them as well.
The halakhic sources, the Talmud and later authorities, deal with
craftsmen and other office holders appointed or engaged by the public,
such as tree planters, ritual slaughterers, scribes and elementary school
teachers: see Baba Metzia 109a and M. T. Sekhirut 10:7. Of this type of
employee, it has been said that "the community should not act inequitably
in removing without cause those it appoints" (R. I.Z. Meltzer, Even haEzel,
in the chapter dealing with Maimonides' rule as above).
For the same reason the dismissal of persons appointed for life is
questionable.
A responsum of 1913 (Resp. Tzur Ya'akov 195, by R. A.Y.H. Hurwitz)
dealt with the case of a beadle who was appointed by the wardens of
a community for one year only, but continued to serve for three more
years. Another person then tried to get the post. It was held that although
this was not a case in which the employee may not lawfully be replaced,
it is nevertheless improper to replace him. The author found fault in
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HOLDERS OF PUBLIC OFFICE
the other person who sought to oust the incumbent beadle (a form
of trespass) as well as in the community: "It is not fitting to dismiss
the first one and deprive him during his lifetime of his livelihood … without
good and sound reason."
Resp. Tzur Yaakov was written by a Polish rabbi and the responsum cited
is one of very many. In almost every collection of responsa that appeared
in Eastern Europe, where this kind of literature was widespread, such cases
abound. But it is not only in the responsa literature of European rabbis, but
also in that of Sephardi and Oriental rabbis that many similar responsa are
to be found. For example, Resp. Rav Paalim, Hoshen Mishpat 6 by R.
Hayim, rabbi of Baghdad (first printed in Jerusalem in 1905), was given in
reply to a question addressed to him from Persia. See also Resp. Bakesh
Shlomoh 20, by R. S. ibn Danan, published in Casablanca in 1931.
In the United States as well, responsa dealing with the dismissal of
employees of Jewish institutions may be found: for example, Resp. Jggrot
Moshe, Hoshen Mishpat 76, 77, by R. Feinstein, published in 1964, which
concerns teachers.
Finally, the judgments of the rabbinical courts in Israel contain cases on
the same subject.
One of these that is of interest to us is a judgment of the Haifa Rabbinical
Court dealing with the dismissal of the cleaner of a school (Rabbinical
Court Judgments, Vol. 3, 91). A comprehensive survey of the halakhah in
this field is presented in the decision.
It is said of the type of employees referred to in Baba Metzia 109 and M. T.
Sekhirut 10:7 and also in Hoshen Mishpat 306:8, that if they have acted
badly or wrongly in their work (provided it was not a single occurrence)
they may be dismissed without any forewarning …. Yet the evidence must
be put to them and they may not be dismissed if they work properly. If,
however, they were taken on for a defined period or it is local usage not
to give notice of dismissal or forewarning, that will not apply.
One of the reasons for prohibiting dismissal without grounds – as
prescribed in the halakhic literature – is to avoid the likely suspicion
that the dismissed person was at fault: see Mishnah Berurah to Orah
Hayim 53:25:73 s.v. "a hazan is not dismissed from his post…" The same
applies wherever it is not customary to make the appointment for a fixed
period, and the reason is that no one should suspect that the employee has
been found at fault.
Nevertheless, according to Jewish law, when a public servant has evidently
acted badly the community leaders are commanded to dismiss him in order
to prevent harm to the public: see Hazon Ish, Baba Kama 23:2 as cited
above. Similar observations are frequent in the halakhic literature …
As regards the taking of evidence, questions arise in Jewish law as to the
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PART THREE: SOCIAL AND ADMINISTRATIVE REGULATION
effectiveness of hearing evidence when not in the presence of the person
concerned. In Resp. Sho'el uMeshiv (Tanina ed., 2:77), R. Nathansohn
observes, with respect to a shohet being declared unfit, that to disqualify
a person permanently so that he loses his vocation – as distinct from
suspension for a few months – is like a matter of criminal law, and
there is no value generally in hearing witnesses in the absence of the party
against whom the evidence is proffered.
Here the petitioner has a single argument, i.e. that the town council
should have heard him, and in my opinion that indeed is the least that
was required. The duty to hear the party concerned is basic not only
in Jewish law but also in English law. Rema has explained the point
well in his Responsa (108):
It is therefore obvious that one cannot deal with a matter without
hearing the submissions of the defendant, for the Torah has said: 'listen
to your fellow men.' Although it is obvious, we may learn from God
who trod the path of justice and whose ways are ways of pleasantness
and whose paths are paths of peace. He began by asking Adam, 'Who
told you that you are naked?' And also of Cain He asked, 'Where is
Abel your brother?' And all this in order to hear what they had to
say. How much more so is it for the ordinary mortal. Likewise our
Sages understood, 'Let Me go down and see' as teaching judges not to
decide a case until they have heard and understood, and thence that
even where it is clear to them that the defendant is guilty, they must at
least first hear his arguments.
/1,C. 192/68
BASHKIN v. MAYOR OF TEL AVIV-YAFFOetal.
(1968) 22(2) P.D, 744, 748
The petitioner was the widow of a man who for a long time had been licensed to provide
deck-chairs along the beach. She now complained of the refusal of the Municipality to
renew the licence.
Kister J.: I would not conclude from these remarks that the Municipality
may cease granting the licence or permit without reason and give it to
another. The rule is that a local authority may not act arbitrarily. In
the Jewish tradition, there is a rule regarding employed persons which I
cited in Altagar v. Mayor of Ramat Gan [see above] that164
HOLDERS OF PUBLIC OFFICE
The community should not act inequitably in removing without cause
those it appoints (R. I.E. Meltzer, Even haEzel to M. T. Sekhirut 10:7)… .It
is not befitting to dismiss the first one and deprive him during his
lifetime of his livelihood … without a good and sound reason (Resp. Tzur
Ya'akov).
M. 2859/59. 2134/59
KABALA et al. v. BASYOK et al.
(1959-60) 21 /'.M. 75. 77. 79-80
Kister J.: The applicants are members of a workers' settlement organised
as a co-operative society.
As became clear during the hearing of the application, two groups exist
among the members of the settlement, with conflicting views about its
management. It was not clarified – and the question is not important
– whether the differences arise out of party political considerations. Apart
from differences of opinion, there appear to be mutual recriminations and
suspicion.
It was shown that in February 1959, the administrative bodies of
the settlement, i.e. the management and supervisory committees, each
comprising five members, were constituted by agreement between the two
groups. The settlement was affiliated under a control agreement to the
Labour Farmers' Cooperative.
On 17 June 1959, four of the members of the supervisory committee of
the society and two of the society's members on the said control agreement
gave notice of their resignation and also submitted an application signed
by eighty-three members of the settlement calling for elections to the
administrative and supervisory committees. I would point out that the total
number of members of the settlement is one hundred and fifty-two, and
eighty-three is therefore an absolute majority. Although I did not establish
that all the eighty-three members in fact signed, for the purposes of these
proceedings I shall assume they did so …
t think I may define the relationship that can be expected to prevail
between the majority and minority in a cooperative society… as our Sages
defined the relationship between Bet Hillel and Bet Shammai ( Yevamot 14b),
that in spite of their differences of opinion, "they showed love and friendship
to each other in order to observe 'Love ye truth and peace'" (Zech. 8:19).
It follows from the basic principles of cooperation that the majority
should not treat the minority contemptuously and, relying on their number,
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PART THREE: SOCIAL AND ADMINISTRATIVE REGULATION
do as they wish with regard to the latter. Rather, the majority should aim
at fair relation with the minority.
In view of the above, let us see whether, according to principles of
cooperation, it may be established that when a majority of the members
are dissatisfied with a committee member they can remove him from the
committee even in the middle of his term.
A member may very well feel that he is not generally accepted, and may
himself desire to resign. On the other hand, if a member is normally elected
for a complete fiscal year, it is unfair to remove him in the middle of the
year unless he has acted in a manner that renders him unfit to continue
to serve, or unless he falls ill or the like and cannot act. If a group
proceeds otherwise and members are dismissed in the middle of their term
without weighty reason, it may lead to instability and to daily attempts at
proposing elections, and persons of good will may well hold back from
accepting office.
In addition, the removal of a member before the expiry of his term
gives rise to suspicion about him, and that is the reason why Jewish law
has stipulated that the public may not recall a person appointed for a
particular period before its expiry unless some very important ground
exists to do so (see Yoreh De'ah 257:2, glosses of Rema and Shakh ad
foe.; Orah Hayim 53:26 and commentators).
C.S.A. J_/71
A. v. ATTORNEY-GENERAL
(1971) 25(2) P.D. 365, 368-369
After being convicted in court of taking a bribe, the petitioner came before the Civil
Service Disciplinary Committee and was sentenced to dismissal with pension. The
representative of the Department where he had worked appeared before the committee
and recommended that he should not be dismissed, but should be transferred to a
different post at a lower grade, one that did not involve contact with the public.
Kister J.: I do not…overlook the gravity of bribery and the danger of an
employee taking bribes, even if he believes that he will not stray in the
slightest from his duty.
Our Sages emphasized (in explanation of the Scriptural statement that
bribery blinds) the fact that bribery renders the receiver and giver of one
mind … and therefore the receiver cannot contend that although he took a
bribe, he did not pervert the law (see Mekhilta to Parshat Mishpatim, 20,
and Ketubot 105b).
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HOLDERS OF PUBLIC OFFICE
The danger is particularly great where the matter involves the discretion
of the employee. Here the appellant had a certain discretion. I therefore
agree that the offence must be treated with the utmost severity.
See: A. v. STATE OF ISRAEL. p. 178.
C. Reinstatement of Public Servants
1. Conditions of Reinstatement
Ch.A.A. 1/68
A. v. ATTORNEY-GENERAL
()968) 22(1) P. D. 673, 676-679
The appellant, a lawyer, was convicted offorging legal documents and circulating them
and he was sentenced to imprisonment. The District Disciplinary Tribunal suspended
him for five years from membership in the Chamber of Advocates, but the National
Disciplinary Tribunal, upon appeal, ordered his total disbarment.
Kister J.: In dealing with the question of whether the Tribunal ought to
have decided to disbar the appellant, I think it is fitting to have recourse
to the approach taken by Jewish law and the tradition of the Jewish
people regarding wrongdoers, their disqualification from public office and
the conditions for reinstating them.
Mention should also be made of the new winds blowing throughout
the world regarding the rehabilitation of people who have stumbled into
transgression, as well as the tendency to wipe the slate clean after a
prescribed period if no further offences have meanwhile been committed.
Briefly, the attitude of Jewish law is as follows:
On the one hand, every instance of falsehood or suspicion of falsehood
is treated with seriousness: the Talmud and the Shu/khan Arukh contain
167
PART THREE: SOCIAL AND ADMINISTRATIVE REGULATION
many examples where the use of a stratagem, including one for gaining a
procedural advantage, is deemed an infraction of the directive, "From a
false matter distance yourself' (Ex. 23:7) (see Shevu'ot 30b- 31a).
On the other hand, a person who commits an offence and pays the
penalty imposed on him or the damages he is ordered to pay and thereby
does his penance in full, or otherwise behaves in a manner that satisfies
the court that he has mended his ways for the future – such a person
is to be forgiven and not reminded of his earlier misdeeds; in general
he becomes fit once more to fill the office in which he served when he
erred. The rule is, " 'Lest thy brother shall be dishonoured before thine
eyes' (Deut. 25:3) – on having received flogging he is like your brother"
(Makkot 23a). As regards the penitent, it is forbidden even to remind him
of his former deeds (Baba Metzia 58b).
Furthermore, we must mention the rule that craftsmen and those holding
various public posts (the sources mention inter alia scribes who draw up
deeds) who fail even innocently in carrying out their duties "are dismissed
without warning, for they may only continue as long as they exert themselves
in their work, because they are appointed by the community" (M. T.
Sekhirut 10:7, based on Baba Metzia 109; see also Hoshen Mishpat 306).
As for reappointing them, if they were dismissed because of an offence,
their penitence is scrutinized very carefully to establish whether they have
really repented and are not deceiving the court in their wish to return
to their previous post, and whether they can be trusted for the future
(Hoshen Mishpat 34:33-34 (Rema); see also Bet Yosef to Tur, Hoshen
Mishpat 34, the main source of which is Sanhedrin 25a).
Instances may occur in which punishment and penance will not suffice
to enable a person to be restored to his position, but the examples that
I will cite from the sources demonstrate that that is so only in the most
extreme instances, either because of the nature of the evidence or because
of the post the offender held.
(a) A person who killed inadvertently and was exiled to a city of refuge
will never go back to his post "because this monstrous mishap occurred
through him" (see M. T. Sanhedrin 17:8; M. T. Roze'ah 7: 14). There is
the case, reported in Resp. Ribash 251, of the judge whose son struck
a person with fatal effect with the encouragement of his father; Ribash
directed that the judge be removed and never again appointed to public
office.
(b) A High Priest who sins is flogged and then is restored to his office
(M. T. Klei haMikdash 4:22). In contrast, the head of a Talmudic Academy
(in the sense of President of the Sanhedrin) is not restored, not even as an
ordinary member of the Sanhedrin (M. T. Sanhedrin 17:9). The reasons for
the latter ruling are: (I) that it is for his own benefit not to be restored
168
HOLDERS OF PUBLIC OFFICE
in case his colleagues despise him (Kesef Mishneh ad loc.); (2) the fear
that he may seek revenge on those who condemned him (Pnei Moshe to
Y. Sanhedrin 2:1); (3) Resp. Radbaz, 6: 2078, gives two further reasons,
i.e. the profanation involved when a person in such a prestigious position
sins, and the function of the President to guide the people in the right
way, as it is written, " 'Gather yourselves together, yea gather together'
(Zeph. 2:1) …first adorn yourself and then adorn others" (Baba Metzia 107b
– a play on the Hebrew for "gather" and "adorn" [ "be just to yourselves
before requiring it of others'). ..
(c) The priests of the High Places and of the Temple of Onias, and a
fortiori priests who served idols, were forever barred from serving in the
Temple (Menahot l09a; M.T. Bi'at haMikdash 9:13-14).
These instances are exceptional but they emphasize the rule that the door
is not to be bolted in the face of those who repent sincerely and honestly.
Indeed in the absence of any weighty reason to the contrary, restoration to
their previous way of life, their occupation and post should be facilitated
for the penitent.
I should observe that disqualification for five years, like the suspension
of the appellant here by the District Disciplinary Tribunal, is also to be
found in Jewish law, as in the case brought before Rosh (Resp. Rosh 58:4)
concerning a cantor/slaughterer who had committed perjury and was
suspended for such a period.
See: A.
V.
ATTORNEY GENERAL. p. 167.
169
Chapter Two
PUBLIC AUTHORITIES
A. Principles of Action
l. The Right to be Heard
See: BERMAN et al. v. MINISTER OF THE INTERIOR, Part 4, Regulation of the Courts, p.
307.
See: Al TAGAR v. MAYOR OF RAMAT GAN et a/., p. 161.
C.A. 413/80
A.
V.
B.
(19Sl) 35(3) AD. 57, 88-89
The question arising in this appeal was whether a husband has any standing in law in
an application brought by his wife ro terminate a pregnancy.
Elon J.: The firm rule, rooted in the decisions of this Court, is that –
… an administrative body-and even a purely administrative body (not
quasi-judicial) – will not be permitted to inflict upon the citizen any
injury to his person, property, occupation, status or the like unless he is
given a fair opportunity to be heard regarding the prospective injury. The
scope of this obligation and the mode of the opportunity will obviously
depend on the actual circumstances of the matter at hand (per Silberg
J. in H.C. 3/58 Berman v. Minister of the Interior (1958) 14 P.D. 1508).
The right of a person to be heard before any decision is taken that might
injure him is already to be found in Scripture: "Hear the causes between
your brethren and judge them righteously" (Deut. I: 16) and its roots go
back to the dawn of humanity:
170
HOLDERS OF PUBLIC OFFICE
in case his colleagues despise him (Kesef Mishneh ad Joe.); (2) the fear
that he may seek revenge on those who condemned him (Pnei Moshe to
Y. Sanhedrin 2:1); (3) Resp. Radbaz, 6: 2078, gives two further reasons,
i.e. the profanation involved when a person in such a prestigious position
sins, and the function of the President to guide the people in the right
way, as it is written, " 'Gather yourselves together, yea gather together'
(Zeph. 2: l)…first adorn yourself and then adorn others" (Baba Metzia 107b
~ a play on the Hebrew for "gather" and "adorn" [ "be just to yourselves
before requiring it of others'). ..
(c) The priests of the High Places and of the Temple of Onias, and a
fortiori priests who served idols, were forever barred from serving in the
Temple (Menahot 109a; M.T. Bi'at haMikdash 9:13-14).
These instances are exceptional but they emphasize the rule that the door
is not to be bolted in the face of those who repent sincerely and honestly.
Indeed in the absence of any weighty reason to the contrary, restoration to
their previous way of life, their occupation and post should be facilitated
for the penitent.
I should observe that disqualification for five years, like the suspension
of the appellant here by the District Disciplinary Tribunal, is also to be
found in Jewish law, as in the case brought before Rosh (Resp. Rosh 58:4)
concerning a cantor/slaughterer who had committed perjury and was
suspended for such a period.
See: A. v. ATTORNEY GENERAL, p. 167.
169
Chapter Two
PUBLIC AUTHORITIES
A. Principles of Action
1. The Right to be Heard
See:
BERMAN
et al.
v. MINISTER OF THE INTERIOR,
Part 4, Regulation of the Courts, p.
307.
See:
ALTAGAR
V.
MAYOR OF RAMAT GAN
eta/., p. 161.
C.A. 413/80
A. v. B.
(1981) 35(3) P.D. l7, 88-89
The question arising in this appeal was whether a husband has any standing in law in
an application brought by his wife to terminate a pregnancy.
Elon J.: The firm rule, rooted in the decisions of this Court, is that –
… an administrative body-and even a purely administrative body (not
quasi-judicial) – will not be permitted to inflict upon the citizen any
injury to his person, property, occupation, status or the like unless he is
given a fair opportunity to be heard regarding the prospective injury. The
scope of this obligation and the mode of the opportunity will obviously
depend on the actual circumstances of the matter at hand (per Silberg
J. in H. C. 3/ 58 Berman v. Minister of the Interior (1958) 14 P.D. 1508).
The right of a person to be heard before any decision is taken that might
injure him is already to be found in Scripture: "Hear the causes between
your brethren and judge them righteously" (Deut. 1:16) and its roots go
back to the dawn of humanity:
170
PUBLIC AUTHORITIES
He began with Adam, asking him "Who told you that you were naked?"
and continued with Cain, "Where is Abel your brother?", in order to hear
what they had to say. How much more is that so for the ordinary
human. And that is how the Sages explained, "I shall go down and
see," to teach judges not to give judgment until they have heard the
facts and arguments and understood them (Resp. Rema 108).
This Court has also held that while the right of a litigant to be heard in
judicial proceedings is absolute, the obligation of an administrative agency
to give any person liable to be harmed by what it does an opportunity to be
heard, its scope and its form, depend upon the circumstances of the case.
Such scope and form are determined by finding the proper balance between
the right to be heard and the effective functioning of the administrative
body so as not to frustrate its labours.
These rules and principles are commonly accepted by us when we are faced
with the possibility of affecting the material rights of property, occupation or
other financial benefit of a person, and a fortiori when a decision may affect
the lot of an embryo, to whom the parents are profoundly and inherently
attached. Every human being feels this attachment and no more apt or
incisive expression of it is to be found than in the words of the rabbis:
"There are three partners in man, the Holy One Blessed be He, the
father and the mother" (Kiddushin 30b and Niddah 31a). It is well-known
that in Jewish law, parents have never been vested with any "material"
right, even as regards their born children, and the relationship between
parents and children is "a natural bond in which the usual concepts of
legal ownership are on the one hand pale and scanty and on the other
hand touch our sensibilities in practice" ( C.A. 488/77 A. v. Attorney
General (1978) 32(3) P.D. 421, 429-430). Thus the partnership is one
of attachment – the profound, natural bond of parents with the fate
of the embryo they have created. It exists even when the parents are
unmarried and a fortiori when they are wed and are building a home
for their family. When the question arises of terminating a pregnancy,
each of the parents possesses the fundamental right, grounded in natural
elementary justice, to have his or her views heard and heart-felt wishes
listened to before any decision is taken on termination of pregnancy and
abortion of the child. As I have said, the existence of the right to be heard
depends on the circumstances. Where, for example, the husband is an
alcoholic and incapable of considered and understanding consultation or
where, because of the urgency of the case, it is impossible to summon the
husband and the like, the committee may in general come to a decision
regarding termination of pregnancy without first hearing him. But these
are exceptional cases which circumstances may render necessary. They
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do not derogate from the rule that a duty exists to hear the husband
before taking so fateful and far-reaching a decision.
2. Arbitrary Action
See: BASHKIN V. MAYOR OF TEL AVIV-YAFFO, P- 164.
3. Tolerance and Discrimination
H.C. 175/71
ABU GOSH MUSIC FESTIVAL v. MINISTER OF EDUCATION et al.
(1971) 25(2) f.J). 821,827, 830-831
An application by the petitioner to the Ministry of Education for a grant was refused on
the grounds that it was not the Ministry's function to assist an institution the purpose
of which was to perform church music.
Cohn J.: For my part I would note, parenthetically, only one thing: that
discrimination regarding the allocation of financial assistance from the
state treasury between the culture and religious art of a majority and that
of a minority not only arouses the most mournful of associations and
memories of the times and the places where the Jewish religion was and still
is subject to discrimination, but it is also wholly contrary to the principles
of Judaism befitting the State of Israel. ''What is hateful to you, do not
to your neighbour. That is the whole Torah, for the rest…go and learn
it" (Shabbat 31a). And Ben Azai said, "This is the chronicle of mankind
-a leading principle follows" (Sifra, Kedoshim 40).
Kister J.: The basis for the prohibition against religious discrimination lies
in two principles – religious tolerance and religious equality. Although the
term "tolerance" is more embracing than the term ''patience" [sovlanut and
savlanut in Hebrew], it possesses also metes and bounds. The principle of
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toleration demands that the citizen and society should not only tolerate
the existence of every faith even though they do not believe in its tenets,
but they must treat that faith with courtesy and respect, without contempt
and without hurting the feelings of its members. Those who belong to a
given religion may not be discriminated against in comparison with other
religions, and no person may be prevented from abiding by the dictates
of his religion, either directly or indirectly, by tendering it impossible for
members to engage in religious services. The very expressions, "Honour
your fellow man" or "love mankind" are devoid of all meaning if they are
not manifested in a practical way. I would conclude my remarks by referring
to the leading principle known to us from the earliest of times: "What is
hateful to you, do not unto your neighbour." What would be hateful
to you, if it harmed you by way of your religion or your opinions, do not
do to those of another religion or opinion.
This principle is couched in negative terms, i.e. to abstain from doing
harm, and it is not always fully achieved. Nevertheless, in modern society
where the means and capacity without which the citizen cannot obtain all
his religious requirements nor give his children a religious education are
concentrated in the hands of the State, a positive duty lies with the State
to meet these needs.
If, therefore, it is impossible to observe religious precepts or to obtain
religious education for the children of one's community without active
assistance from the State, one may expect of the State to do all it can for
the citizen in this regard.
The principle of equality demands that if the State spends money out of
its budget, i.e. from the pockets of taxpayers, to assist in the maintenance
of one religion, its ritual and the education of its children, then every other
religion is entitled to expect similar assistance when necessary and when
within the capacity of the State.
Accordingly, where it is a matter of music necessary for maintaining the
ritual of one religion, and the State allots money for this purpose for some
other religion, it must not withhold similar assistance from the institutions
of the former … when their own means are insufficient.
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II. C. 392/72
BERGER v. HAIFA DISTRICT PLANNING COMMISSION et al.
(1973) 27(2) P.D. 764, 770-771
This was a petition asking that a change in municipal building plans entailing compulsory
acquisition of property belonging to the petitioner be declared null and void.
Berenson J.: Finally, I think that it is not superfluous on this occasion
to speak my mind about the attitude which we should necessarily expect
of each of us towards strangers who live in our midst.. .. From earliest
times, when the Jewish nation dwelt in its own land and on its own soil,
it knew the soul of the sojourner and acted towards him with justice
and in equity. The Torah commanded us, "One law shall be to him
that is homeborn and unto the stranger that sojourneth among you"
(Ex. 12:49); "Ye shall have one manner of law, as well as for the stranger
as for the homeborn" (Lev. 24:22). "Judge righteously between a man and
his brother and the stranger that is with him" (Deut. 1:16). In a number
of places the Torah enjoins us not to cheat the stranger, not to put
pressure on him, not to oppress him and not to pervert justice in his
regard: in all these matters he is compared to the orphan and widow,
the poor person who is in need of understanding and compassion from
his neighbour. "Ye know the heart of a stranger for ye were strangers
in the land of Egypt" (Ex. 23:9). Not without cause did S.D. Luzatto
write in his Mehkerei ha Yahadut (Vol. I, Part 1 Yesodei ha Torah, p. 32):
"Whilst Israel is a chosen people and even though it has been kept apart
from idolatrous peoples, the Torah has never distinguished between Jew
and non-Jew in any matter in which true justice and equity are required
of each man to his neighbour." And Maimonides has said:
Let no man say one thing and mean another but be undissembling
and sincere. It is forbidden to deceive one's fellow man, even a nonJew… and even one word of deception.. .is forbidden, but (one should)
speak truthfully and honestly and with a mind free of all evil and
mischief (M. T De'ot 2:6).
When we were exiled and removed from our land, we became the victims
of the nations of the world among whom we dwelt. In all generations
we tasted the bitter taste of persecution, oppression and discrimination
simply because we were Jews whose religion was different from that of
any other nation. Having learned from this wretched and bitter experience,
that has penetrated deep into our awareness and our national and human
consciousness, it is to be expected that we should not follow the aberrant
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ways of the gentiles. With the renewal of our independence in the
State of Israel we must carefully preserve ourselves from any suspicion
of discrimination or dubious practices towards any law-abiding non-Jew
found among us, who wishes to live with us in his own way, according
to his own religion and faith. The hatred of the stranger is a double
curse: it destroys the divine image of the one who hates and causes evil to
the one who is hated without any wrong on his part. We must display a
tolerant and humane attitude towards all those created in God's image,
and observe the great principle of equality of the rights and duties of all
mankind.
4. Minority Representation
H.C. 311/65
MARCIANO v. ELECTIONS COMMITTEE OF OFAKIM
(1965) 19(3) P.D. 393, 396-397
The Minister of the Interior, by virtue of his authority in that capacity, appointed a
nine-member Election Committee for the local council of Ofakim. The petitioner, who
was one of the members, claimed that four of them belonged to Mapai,four to Mafdal
and one to Herut. He complained that when the committee appointed a chairman for
each ofsix polling station committees, it overlooked the Alignment party and appointed
four Majda/ party members and two Herut members. According to the petitioner, this
was contrary to the principle of "suitable representation" which the law requires to
be observed when appointing chairmen of polling station committees as well.
Kister J.: I agree with my learned friend Sussman J. and would only add
the following to what he has said:
It is true that the law enables the Election Committee to appoint chairmen
of polling station committees by a majority resolution, and does not
prescribe any test for such appointments. This does not, however, mean
that the Committee may act arbitrarily. The rule has already been laid down
in the tradition of Jewish law that those appointed to occupy themselves
with public requirements are like judges (see Hoshen Mishpat 37:22;
Terumat haDeshen 214; Noda biYehudah, Hoshen Mishpat 20). One of
the consequences is that such appointees, when they come to appoint the
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chairmen of the polling station committees, would be required to treat
each citizen equally and are forbidden to deprive any citizen or group
of citizens of his or its rights in reliance on the power of a majority.
Although there are public posts which are given only to those who enjoy the
confidence of the majority to carry out its policy when what is involved
is the execution of policy, here the task is to supervise that the elections
are conducted in a fair manner, and for that a candidate need not be of the
party in the majority; indeed, it is very possible that it would be better for
him to be of the minority.
In the absence of any statutory provision the Elections Committee may
choose the chairman of the polling station committees according to any
objective test from among the polling committees, and may itself lay down
the test.
Generally, the right test is to choose the most fitting person but I
understand that regarding the post in question there are, even in a small
settlement, many capable of filling it, whilst on the other hand any attempt
at deciding who is most fitting is likely to lead to disputes, a course that is
undesirable.
The halakhic literature gives thought to this aspect of the problem as
well. R. Menahem Me'iri's Bet haBehirah to Sanhedrin 17a states that "a
person should always be take care not to create envy among members.
Even a communal leader or prophet who guides the people at the will
of the Blessed One needs to act with care in appointing administrators
so as not to create envy among the different families."
I cannot say which test should be adopted – that of seniority of age
from among the members of the polling station committees or party
representation, roughly in accordance with local membership, or perhaps
some other test found to be appropriate, provided it does not negate
without just cause the right of appointment of a minority, which in the
present case is a minority constituting a considerable percentage of the
population.
The very banding together of several parties to deny appointments to the
minority is contrary to a fundamental rule of the Torah, "And thou shalt
love thy neighbour as thyself' which, put in a negative and prohibitive
form is, "What is hateful to you, do not to your neighbour", regarding
which Hillel said: "That is the entire Torah – the rest is commentary, go
and learn it" (Shabbat 31a). Certainly no party among the majority would
find such a banding together fair and valid had it been directed against
itself and denied its members the right to fill some post as in the present
case.
This principle enunciated by Hillel…entered into the Common law
of England according to Lord Atkin in his judgment in Donoghue v.
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Stevenson [1932] A. C. 562, 579, as a basic principle in a certain area of
tort law. We may surely use it also in other areas.
In the relationship between those who hold different views on the
halakhah, the Talmud (Yevamot 14b) says regarding Bet Shammai and
Bet Hillel that "they showed love and friendship to one another, thus
observing Scripture, 'Love ye truth and peace'" (Zech. 8:19). Ritba explains
this statement and concludes " … neither did anything hateful to the other".
5. Interested Parties
See:
KATABI
et al v.
CHAIRMAN OF THE LOCAL COUNCIL OF KIRYAT EKRON
et al, Part
4, Regulation of the Courts, p. 253.
H.C. 291/72
RUBINSTEIN et al. v. CHIEF RABBINATE COUNCIL ELECTION COMMITTEE
(1972) 26(2) P.D. 273. 279-280
The petitioners, who were members of the Haifa Religious Council, pleaded that the
Election Committee set up under sec. 4(a) of the Chief Rabbinical Council (Elections)
Law, 1972. had not included in the list of local rabbis a number who should have been
included, and contained rabbis nor suicable for inclusion.
Cohn J.: With regard to the composition of the Appeals Committee, I
find it difficult to understand the intention of the legislature. The Minister
of Religious Affairs knows better than anyone that the Chief Rabbis
can be candidates for re-election to that exalted office. How did he
come to appoint them to hear appeals as a result of which their voters
are determined or varied? I will not spend time on the great principle
amongst the rules of natural justice that no man may be a judge of his
own case. I am, however, astonished that the enactor of the Regulations,
prescribing the procedure for elections to the Chief Rabbinical Council,
has overlooked the rule of Jewish law that no judge may hear any matter
in respect of which he possesses some benefit (Hoshen Mishpat 7:12). The
Sages of the Talmud went so far as to disqualify a judge who had some
interest in a matter simply as a citizen or inhabitant: where a Torah scroll
is stolen in some town, the local judges may not hear the matter; similarly
where one person tells another to distribute some money to the inhabitants
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of a town and the money was found to have been stolen, the local judges
may not try the culprit (Baba Batra 43a). Rosh holds that where a person
has evaded paying tax, those of the local judges who themselves are
tax-payers may not try him: "Obviously he should not appear before them
for how can they try him, having a part in the claim" (Resp. Rosh 58:7).
The interest that every citizen has in the payment of tax by another or
in the integrity of public property is only a distant and indirect interest,
and presumably a judge will know how to differentiate entirely between
his own personal interest and the public interest in which he has a part.
Here, however, what is involved is not such a distant and indirect matter.
An objection presented to the Appeals Committee may directly affect
the success or failure of an immediate personal interest of members of
the committee themselves. The fact that Chief Rabbis are concerned in
the matter and they are, Heaven forbid, not to be suspected of perversion
of the law, whatever the matter, is not relevant: they are disqualified by
law, which prohibits any favour being shown.
C.S.A. 2/ 73
A. v. STATE OF ISRAEL
(1974) 28(1) P.D. 365. 370
The appellant was found guilty by a Civil Service Disciplinary Tribunal of disciplinary
offences of a sexual nature, and was immediately dismissed. His submission was that
there was no evidence 10 corroborate that of the complainant.
Kister J.: A properly ordered civil service in a democratic state requires
that a senior official concerned with the acceptance and dismissal of
other officials should exclude from his considerations and activities every
personal or private motivation and not exploit others for his own needs
and concerns. In general, caution is required in a person's relationship
with those who may be dependent or think themselves dependent on him.
In the present matter, it is apposite to quote the observations of R. Yonah
Girondi, a contemporary of Nahmanides, in his Sha'arei Teshuvah (3:60):
One person should not subjugate another. Iffear of him or embarrassment
prevent the other from withstanding what he says, he should not order
the other to do anything, small or large, unless he concurs and it
is for his benefit, even if to heat a kettle of water or go on some
trivial errand.
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A senior official may, and even must, demand that the staff carry out
their duties, but no more.
6. The Obligation to Give Reasoned Decisions
H.C. 142/70
SHAPIRA v. JERUSALEM DISTRICT COMMITTEE OF THE ISRAEL BAR
ASSOCIATION
(1971) 25(1) P.D. 325, 333-335
The Jerusalem District Committee of the Israel Bar Association – the respondent
– heard the petitioner's complaint against a particular lawyer and decided to dismiss
it. In reply to the petitioner's demand that he be sent the reasons for its decision, the
respondent's secretary wrote that "every member of the committee voted as he did for
reasons and considerations which he believed to be correct" and that "in the opinion
of the committee, it does not need to give reasoned decisions. "
Kister J.: As to the obligation to give reasoned decisions …. This obligation
is well-known in Jewish law with respect to the religious courts (which, in
general, are collegiate bodies).
The laws relating to reasoning are based mainly on Sanhedrin 31 b, dealing
with two litigants, one of whom wished to be heard before the Supreme
Rabbinical Court, and one who opted for the local court: according to
the Talmud, [a litigant] is obligated to appear locally, "and if the litigant
says: Write down the grounds on which you made your decision and give
them to me, they must write them down and give him the document."
We also find in Baba Metzia 69a a story of two people at a hearing before
R. Papa, who said that "in such a case it is certainly necessary to inform
him [of the grounds of my verdicts]."
The obligation to give a reasoned judgment and the conditions of such
an obligation are set down by Maimonides, M. T. Sanhedrin 6:6, and in
Tur and Shu/han Arukh, Hoshen Mishpat 14:4 and glosses.
This is not the place to detail all that the halakhah has to say on the
obligation to give reasoned decisions, and it is sufficient if I mention the
reasons for this obligation and how it should be fulfilled:
The reasons for the existence of the obligation are as follows:
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(a) To ensure the possibility of review by a higher court or even by
another body which will then be able to decide whether or not there has
been an error in the decision;
(b) The principle guiding all men, and in particular, a person fulfilling
a public role, "and you shall be clear before the Lord and before Israel"
(Num. 32:22).
In view of these considerations and the language of the Talmud, the
Sages instructed that where the parties have agreed to the jurisdiction of
a particular body, then in general, there is no obligation to give reasons
unless there is some basis for suspecting that there has been a mistake.
Similarly, the decisors distinguish between the obligation to give reasons
orally, so that the parties should know, and the obligation to write a
reasoned judgment: the former obligation is the wider.
Regarding written reasons which are not necessarily intended to explain
to the litigants the grounds for the decision, but rather, to allow for review,
we find in Nimukei Yosef to Baba Metzia (40a in Dappei haRif):
One does not write: For these reasons, and from this evidence [from the
halakhic literature], but one writes that A argued thus and B replied
thus and from their arguments [it emerges that] A was right, and in the
Court of the Assembly they will know the reasons.
Rema, too, ruled thus in Hoshen Mishpat 14:4, and Serna ad Joe. in
subsec. 26 explains: "For every competent court which hears the arguments
will know how to rule on them, for there is one Torah for all."
R. Yair Bachrach, in Resp. Havot Yair (addenda), expressed surprise
at the words of Rema and said that a description of the arguments, or
in modern legal terms, the facts as presented, are insufficient…proper
reasoning is necessary, i.e. judicial grounds for the decision.
It seems to me that all of these considerations are applicable today.
Today, too, the authorities (and not only the courts) who deal with a
citizen's rights are required to "be clear… ": it is not enough that justice is
done, but justice must also be seen to be done. The consideration that, from
a practical point of view, it is difficult to subject any decision to review if
the grounds for it are not known is also valid. Since the same considerations
apply today, if the dispute between the Sages on the extent of the obligation
to give reasoned judgments is translated into modern terms, we may say
that in order to subject any decision to review, it is sufficient that the
decision-making body gives the applicant a recital of the facts on which the
decision is based, so that the body before which the matter is brought for
review can determine whether or not the first body was mistaken. This is
the minimum demand with respect to reasoning, and it is to be expected
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that the body will note down, if only briefly, its juridical reasons as well.
Indeed, Chap. 11: 104 of the Rabbinical Courts Procedure Regulations,
I 959, states:
Every decision must contain, apart from the ruling on the subject of the
case:
(a) a brief summary of the litigants' arguments;
(b) a determination of the material facts; and
(c) the reasons for the decision.
Counsel for the respondent argued that the petitioner did not prove that
an obligation exists on the part of the respondent to provide him with a
copy of the minutes. This approach is wrong. When the argument forms
the basis of the decision, then… the petitioner is entitled to see it or receive
a copy, on the basis of the dictum, "and you shall be clear…". Likewise,
refusal to show the minutes is like refusal to provide the reasoning to
which the petitioner is entitled, and if the respondent argues that there is
cause to conceal the minutes, he must prove it.
7. Public Tenders
H.C. 632/81, 19/82
MIGDAH LTD. v. MINISTER OF HEALTH et al.
(1982) 36(2) P.D. 673, 688
The petitioning company participated in a tender published by the third respondent,
which set out dates ofdelivery of items ordered. In the course ofdealing with the tender,
the appropriate committee changed these dates. The company asked that consideration
of the tender be cancelled because of its defective nature or alternatively that its own
bid be accepted in full.
Elon J.: It is rather impertinent of the petitioner to ask us to cancel
the tender with regard to all who responded to it – as it were, "if I
do not succeed, neither may you" – because of a misdeed committed
in the negotiations conducted with it. Of such a case, the Talmud says,
"First adorn yourself and then adorn others" (Baba Metzia 107b), and as
the old adage has it, when one says to another, "take the splinter from
between your teeth" the other may reply "take the beam from between
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PART THREE: SOCIAL AND ADMINISTRATIVE REGULATION
your eyes" (Baba Barra 15b and Rashi ad foe.). As regards the question
before us, it has long been settled that "anyone who seeks to set aside the
offer made by a competitor in a tender because of defects he has found
therein or omissions which he claims it shows, must first of all demonstrate
that he himself was meticulous with regard to the terms of the tender and
abided by them zealously. Otherwise his own offer is disqualified and he
has no standing to claim that the other offer be set aside."
8. Public Contracts
H. C. 376/81
LUGASI et al. v. MINISTER OF COMMUNICATIONS et al.
(1982) 36(2) P.D. 449, 465-470
The petitioners attacked the policy of the respondents regarding the implementation
of a plan for developing the telephone system where they resided, with respect to its
ramifications upon priorities for installing telephones.
Elon J.: According to the plain meaning of sec. 6l(b) of the Contracts
(General Part) Law, 1972, the provisions of secs. 12 and 39 regarding
negotiation and performance in good faith are equally applicable to
obligations in the area of administrative law, even where these do not arise
from a contract … .Indeed, as my learned friend Shamgar J. pointed out, the
duty of a public agency to act in good faith preceded the provisions of the said
Law: the genesis of that duty lay in judicial law-making. With the enactment
of the Contracts (General Part) Law, however, it was reborn as an act
of the legislature, which has ever since been its source. To some degree
we witness a similar development as regards good faith in contract law,
since prior to the coming into effect of the Contracts (General Part) Law,
judgments of this Court spoke of "one of the rules accepted as a universal
principle of the law of contracts, … that the parties must act in good faith in
performing a contract. According to the Sages the first question asked of a
party who appears in court is 'Did you negotiate bonafide?' "(C.A. 242/70
Misheo/ haKrach Ltd. v. Grovner (1970) 24(2) P.D. 692, 702). Moreover,
the principle of acting in good faith, both for the individual and the public,
is based on the ancient precept, "And thou shalt do what is right and
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good" (Deut. 6:18), by virtue of which the principle of good faith became
crystallized in the Israeli legal system in the provisions of the above Law.
In C.A. 148/88 Roth v. Yeshufeh (1979) 33(1) P.D 617, it was said that
the term "good faith," according to its Jewish sources and in modern
phraseology, is synonymous with "honesty of purpose" (yosher lev) which
"constitutes a substantive part of the supreme principle in the halakhah,
which found expression in the phrase 'and thou shalt do what is right
and good'. This supreme principle served the Sages as a guide, a 'royal
directive' throughout the halakhah." That is the significance of acting in
good faith both in contract law and in administrative law. The meaning of
this general and universal guiding concept cannot be defined in advance
– as is also the case with similar general terms like "justice", "public
welfare" and the like – and it gains content in the course of judgment in
one matter or another. "The manner of employing the principle of good
faith should be determined with the utmost caution, not by laying down
generalised rules in advance, but from case to case, until in due course
perhaps a number of directives and rules as to its use are precipitated.
If that does not occur, the stability of the law is threatened and no one
– not even the pure of heart ~ will know honestly what it involves
and how far it reaches" (ibid.). Some assistance in understanding the
concept may be derived from the incisive language used by Nahmanides
in the thirteenth century in defining the nature of conduct which does
not reflect the right and good. Whoever behaves according to the formal
and technical sense of the laws of the Torah, who is particular about what
is expressly stated but not about what is not mentioned but implied by
the general spirit of the particular passage, such a person, in the words of
Nahmanides, is "a scoundrel within the limits of the Torah" (Commentary
to Lev. 19:2). Thus a person displaying a lack of good faith in performing
his contractual obligations is a "scoundrel within the limits of the contract",
and similarly, lack of good faith on the part of a public authority renders
it a "scoundrel within the limits of public service."
Whereas the requirement of bona fide conduct is the same – as provided
in sec. 6l(b) of the Contracts (General Part) Law – both in the area
of contract law and in the area of administrative law, its content and
ambit is not necessarily identical in these two different legal spheres.
Everything depends upon the subject matter and the circumstances. There
are also two modes of carrying out an obligation that derives from
contract. "In some cases lack of good faith amounts only to conduct not
in accordance with the quality of piety, having no legal repercussions and
not being a matter for the court. In other cases lack of good faith goes
so far that it is necessary to seize upon the perpetrator and oppose him,
to frustrate his counsel and nullify his evil thought, as the circumstances of
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PART THREE: SOCIAL AND ADMINISTRATIVE REGULATION
the case may require by analogy" (Roth v. Yeshufeh, see above). The same
applies in ma/a.fide conduct in the area of administrative law. Furthermore,
sec. 6I(b), which applies the requirement of good faith to all legal acts
and obligations, incorporates an important basic limitation: "as far as
appropriate and mutatis mutandis." The underlying reason for this derives
from the nature and range of administrative law in contrast to private law,
a difference that emanates from the varying character of these two bodies
of law.
We may therefore dwell upon a number of rules of Jewish publicadministrative law. Administrative law underwent considerable creative
development in Jewish law with the rise in power and status of Jewish
communities since the tenth century. These communities in various parts
of the Diaspora enjoyed wide internal judicial autonomy, and by virtue of
the extensive activity of the leadership in various public and administrative
matters evolved a long series of administrative law principles. This internal
autonomy was granted not only to individual communities but to groups of
communities that were to be found in many areas … (M. Elon, Jewish law,
2nd ed. 131, 547 ff., 558 ff.; M. Elon, "Authority and Power in the Jewish
Community" in In Memoriam of Yitzhak Ber, 241 ff.: M. Elon, "Public
Authority and Administrative Law" in Principles of Jewish law (1975)
646).
Jewish law in general requires a formal act of acquisition (kinyan) to
render a legal transaction valid (see Elon, Jewish law, 476). From the
thirteenth century onward we find the legal principle that every legal
transaction effected by the community is valid even without such formal
act (Resp. Maharam miRotenburg cited in Mordehai to Baba Metzia, 457458). This new rule was applicable to different types of legal transactions,
such as master-servant relations, surety, gift and others to which the
community was a party (see e.g. Resp. Maharam Ben Barukh, Prague ed.,
38; Resp. Ribash 476; Hoshen Mishpat 163: 6 (Rema), 204:9; Resp. Mayim
Amukim, part containing Resp. haRa'anah, 63). The rule prescribed and
adopted was that "it is a common usage that what community leaders
agree to do is fully valid without kinyan" (Resp. Rosh, 6:19 and 21). With
regard to some other fundamental requirements of property law, too, the
rules prescribed by Jewish law in respect of public agencies were different.
Thus, full effect was given to their act which involved a sale or purchase
of something that was not yet in existence, and as opposed to private law
under which a conditional clause (asmakhta) constituted an impediment
to acquisition, in matters in which the public was involved it did not
(Resp. Mayim Amukim Zoe. cit.; Resp. Mabit, Part 3, 228; see also Elon,
"Law of Obligations" and "Contract", Principles of Jewish law, 241-56).
Moreover, a greater measure of seriousness, rectitude and fairness was
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required of a public agency in carrying out its obligations than was required
of the individual acting in some area of private law. For this reason,
when a representative of a public agency admitted that a particular citizen
was exempt from some tax, the admission was binding and of full legal
validity. In the case of an individual, an admission has no force unless it is
made before two witnesses specifically asked to act as such. This is because
of the presumption that an admission made only between the two persons
involved lacks the firm resolve that is necessary; hence the person making
the admission may say to the other that he was only jesting (Sanhedrin 29a).
An admission by a public agency, on the other hand, is treated differently,
"since it is not the manner of the public to 'jest' "(Resp. Ribash, 476 and
following him Rema to Hoshen Mishpat 81:1).
In the two following matters, clear expression is given to this principle.
In the first, Rashbash was asked whether a community whose practice
it was to sell certain rights for one year but in the given case sold it
for four years could rescind the transaction before the time had expired
because the consideration was thought to be inadequate for what they had
in mind to finance out of the proceeds. In Talmudic law, a sale at less than
the normal price is called ona'ah or hona'ah (overreaching), and where
the price is one sixth less than the normal price, the vendor may rescind
(Baba Metzia 49b). It was also argued that the sale of the rights had been
effected without an act of acquisition and was therefore invalid because
the subject matter was non-existent. Rashbash rejected the argument of
the community and denied them rescission:
A sale by a community even without kinyan of a non-existent thing is
fully valid …. And if it was the practice to sell for one year but it was
sold for four years, the sale is not to be cancelled …. This is no ground
for setting the transaction aside unless the treasurers alone sold, and not
in public, for only then can the public rescind the transaction since it
was not effected in the customary manner. If, however, the transaction
was effected publicly, it is not to be set aside and it stands; nor is there
any over-reaching here. Observe how all holy communities act in such
matters. They never rescind because a non-existent thing is involved
nor by reason of over- reaching… .It is a disgrace for a community to
say that it erred … (Resp. Rashbash, 566).
Secondly, there are the illuminating observations of Ra'anah, in a
responsum we have already mentioned (Resp. Mayim Amukim as above).
The leaders of a certain community came to an agreement with a person
regarding the amount of tax payable by him on the estate he had inherited
from his father. The community wanted to abrogate the agreement and
argued inter a/ia that a mistake had occurred in the valuation of the
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PART THRFF: SOCIAL AND ADMINISTRATIVE REGULATION
estate and that it should be re-valued. The person involved opposed
this and claimed that he had already been released from payment under
the agreed compromise. Ra'anah dealt first with the duty of the court to
take the utmost care not to deprive the public of funds: "Where the case
involves the right of the public, the trial judge must examine the matter as
thoroughly as he can to find, if possible, some argument which tends to
be in favour of the community."
Nevertheless Ra'anah rejected the plea of the public authority in the
instance before him:
Since they so valued it, even if it turns out that he had inherited
more, he pays only on the valued amount, for they made the valuation.
And although community leaders appear to be only agents of the
community, and where an agent makes a mistake his agency ceases
– since he may be told, 'I sent you to improve my position, not to
impair it' (Ketubot 99b) .. .in any event Maharam has already written
in a responsum that whatever the leaders of a community do … cannot
be set aside, even though an error sufficient for that has occurred.
We may thus infer for the case before us, that anything done by
the heads of a community in the affairs that have been delegated to
them endures, and the community cannot go back on it, even when it
is apparent that the leader made a mistake.
A public authority that has assumed an obligation is thus bound to abide
by it with greater rectitude and fairness, beyond the strict law binding on an
individual in the same circumstances under private law. On the other hand,
there are instances where an individual must display greater rectitude and
fairness in his legal relations with another individual than is demanded of
a public authority. For instance, when no obligation was undertaken by
the public authority, and the question involves some public right, such as
public property or funds, this right must be zealously safeguarded from
any adverse influence, even more than in the instance of the right of an
individual under private law. And that is also a leading rule in Jewish
law as we learn from the remarks of Ra'anah on the subject.
We may illustrate this additional rule from the subject of the present
petition. In Jewish law, a duty exists in special circumstances to act beyond
the strict letter of the law in order to fulfill a religious duty, even when
exempt in point of law (see e.g. Baba Metzia 83a; Baba Kama 55b- 56a).
This duty obtains in the relations between individuals but not in respect
of a public authority, the reason being that the individual is commanded
in certain circumstances to observe the general directive, "Be liberal with
what is yours and give it to him" (Hullin 134a). It is otherwise with a
public authority: when exempt in point of law, it may not make any
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PUBLIC AUTHORITIES
equitable payment to an individual out of public funds. To do so would be
to prefer the individual at the expense of the rights of the many, for a
public authority is a trustee of the moneys and rights of the general public
and it may not act in this manner. The rule is, "Be liberal with what is yours
and give it to him", i.e. with what is "yours" but not out of the funds of
the public.
9. Confidentiality
H.C. 264/70
MIZRAHI v. APPOINTMENTS COMMITTEE TO THE SUPREME RABBINICAL
COURT et al.
(1970) 24(2) P.D. 335, 339
The petitioner sought an order to the Appointments Committee to accept a proposal
that he be appointed as a member of the Supreme Rabbinical Court and to annul a
proposal for the appointment of a certain other rabbi.
Kister J.: One may expect from or require members not to "leak information"
or, in simple language, not to "bear tales and reveal secrets" (Prov. 13: 11).
This applies particularly to a committee for the appointment of judges. It
should be pointed out that in the case of deliberations in camera of public
committees, Hafetz Hayim said in Hilkhot Lashon Hara (2:11) that it is
absolutely forbidden for a member of a committee to disclose what view
he or any other member took.
10. Judicial Review
H.C. 302/72, 306/72
ABU HILU et al. v. STATE OF ISRAEL et al.
(1973) 27(2) P.D. 169, 184
The petitioners sought an order prohibiting the respondents to prevent the petitioners
from returning and resettling in the Gaza Strip from which they had been removed by
the Army.
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Kister J.: How far may this Court interfere in the acts, including
the legislative acts, effected by the Army Commander in Administered
Territories?
There is no need to embark upon an exhaustive inquiry, and I shall content
myself with dealing with the points that actually arise in these proceedings.
In the nature of things, there are matters in which our intervention is very
limited or even impossible. Thus, for example, the Court will not interfere
with the foreign policy of the State and will not give directions regarding
the manner of conducting war. Jewish law, it may be noted, contains
a provision that the king may only engage in an "optional" war with
the concurrence of the Sanhedrin (Great Court), but need not obtain
such approval for a "compulsory" war, one instance of which is "to save
Israel from an enemy" (see M. T Melakhim 5: 1-2; for the sources and
interpretation of these rules, sec S. Aricli, The Law of War 96, 170; E.
Waldenberg, The Law of the State, Vol. 2, parts 4 and 5).
For similar reasons the Court will not hasten to intervene in the acts of
a military commander, or his agents, which are intended for the defence of
territory under his control. The facts, as well as the affidavits of the
parties, are set out in the judgment of my learned friend Landau J.,
and he concludes that there is no reason to interfere with the discretion of
the Military Commander. I concur in that.
11. Majority Decision
H.c. 205/60, 2!0/60
ABUD! v. MINISTER OF RELIGIOUS AFFAIRS et al.
(1960) 14 P.D. 2020, 2042-2044
H. Cohn J.: There is no dispute amongst the Sages that in the act of judging,
the [decision of] the majority of judges or arbitrators is not followed unless
they were all present at the hearing; even if one out of ten, or one out of
one hundred was missing, the "whole package has come apart", for "the
majority is not followed unless those in favour outweighed those against,
or those against outnumbered those in favour, when they have all discussed
(negotiated), but when a minority was not present, it is not so. It is said
that if that one missing person had been present, he might have raised
a point contrary to the decision of the majority, and the majority may
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PUBLIC AUTHORITIES
have conceded … and this applies both to a ruling and to a compromise, and
there is no majority unless it is a majority of the whole that has engaged
in negotiation, but a majority which is set apart from the whole and
which judges or assesses or executes for itself without negotiations with
the whole or not in the presence of the whole has not done anything"
(Resp. Ritba 85; and Resp. Rashba, cited in Bet Yosef, Tur, Hoshen
Mishpat 13:9). The k:arned Attorney-General argued that the Election
Committee fulfills quasi-judicial functions, and its members may not,
therefore, resign. I do not accept that argument, for if I were to hold
that this is a quasi-judicial body, I too would rule that there can be a
majority decision only when all members are present and participate in
the discussion. But the characteristic of a judicial or quasi-judicial act is
judgment between litigants and not, as the Attorney-General would have
it, independent use of discretion. The use of discretion is common to both
judicial and administrative acts, and the discretion required for an act
of electing is not greater – neither in extent, nor independence, nor in
nature – than that required in an administrative act in which the rights
of others are involved.
There is another reason for the said rule applying to judicial acts. The
right of the person being judged is to be judged by each and everyone of
the members of the competent body, and not just by the majority: "By
the implications of the text, 'Thou shalt not follow a majority for evil',
I infer that I may follow them for good; if so, why is it said to 'incline
after the majority'? To teach that the majority to 'incline after' for good
[i.e., for a favourable decision] is not the one to 'incline after' for evil [i.e.,
for an unfavourable decision] since for good, a majority of one suffices… "
(M. Sanhedrin 2:1).
In our sources, too, this applies not only to judicial acts, but also to
quasi-judicial acts and acts which benefit one person and cause loss to
another, such as the imposition of taxes and other compulsory payments
(Resp. Maharik, Root 1) in which a majority has no significance unless all
members were present. Regulations which had been made by the majority
of the community other than in the presence of the whole were only ratified
in places where such a custom had taken hold (Resp. Mabit 1:264).
Even though I know of no precedent for selecting the Chief Rabbi
by a majority of electors when not all are present, the question in fact
arose, and caused a great debate, with respect to renewal of the traditional
"authorization" (smikha) of dayanim (religious court judges) in the first
half of the sixteenth century. The Rabbis of Safed acted according to what
Rambam had written in his Commentary to M. Sanhedrin, to the effect that
the Sages of Israel may "authorize" dayanim, even though they themselves
had not been "authorized". The Rabbis of Safed "authorized" the greatest
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PART THREE: SOCIAL AND ADMINISTRATIVE REGULATION
man amongst them, R. Jacob Berav. When the deed of authorization
was sent to the Rabbis of Jerusalem for their endorsement, and so that
they, too, could be "authorized" by the newly "authorized" dayan, the
messengers were chased away by the greatest of the Jerusalem Rabbis,
R. Levi b. Raviv, who argued that not only were there no grounds for
revival of the traditional authorization, but also that the decision of the
Rabbis of Safed was invalid, for even though they constituted the majority
of Rabbis in Israel, that majority decided as it did when not in the presence
of all the Rabbis: even though a majority decision is equivalent to a
unanimous decision, that is only so when it is a majority of the whole. In
the words of R. Levi b. Raviv:
It is a positive scriptural commandment to incline after the majority, as
long as the majority decides after discussions amongst the whole … but
when the majority agrees without such discussion, there is no agreement,
because it is possible that had the majority heard the arguments of the
minority, they might have conceded, and changed their opinion… and in
the present matter, in order for a majority decision to have been taken,
we ought to have all sat together, discussing the law face-to-face, or
at least, in writing … and because neither the one nor the other was done,
their "authorization" cannot be called "authorization" by the majority.
Those words, and many many more, were published by R. Levi b. Raviv in a
monograph, and in response, R. Ya'akov Berav wrote his own monograph.
Thus, monographs from each side were exchanged three times, and as
their number increased, so did their tone and the mutual recriminations
contained therein …. R. Levi b. Raviv wrote that the Rabbis of Jerusalem
were few in number, but great in quality, and what value was there in a
majority of Rabbis if the good Rabbis were not amongst them?! R. Levi
also accused the Sages of Safed of impugning the honour of the Sages
of Jerusalem, and of lack of good manners, for if they had been polite,
how could it have occurred to them to confront the Jerusalem Rabbis
with afait accompli? I mention these accusations only to show that for this,
too, there is a precedent, and this should not detract from the greatness
of either of the Rabbis. On the matter at hand, it is noteworthy that
in his critical scholia on R. Levi b. Raviv, R. Ya'akov Berav ruled that
a matter such as the "authorization" of Rabbis does not require discussion
or an inquiry, but only agreement as to the person to be "authorized",
and to this end, a majority of the whole is not necessary; even a majority
which does not constitute the whole is competent to act. Added weight
attaches to this ruling in view of the fact that R. Ya'akov Berav's pupil, R.
Yosef Karo, received "authorization" from his master when the latter was
forced to flee from the authorities to Damascus.
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PUBLIC AUTHORITIES
It was later ruled that in non-judicial matters, when it was necessary
"to make a fence in spiritual matters, where the generation is lax in the
observance of the Torah, and it is vital to erect protective barriers … there is
unanimous agreement that the majority which is not part of the whole has
the power to do and amend whatever they deem necessary for public order
(Resp. Maharik 180) and I dare to think that from the point of view
of the litigants before us, this definition holds good for the purpose of
electing the Chief Rabbinical Council: This is a spiritual matter, and this
is a generation lax in observance of the Torah, and if such a majority
decision is not valid, nothing will be done and nothing will be enacted.
It is also settled law that when there is a regulation which the majority
follows, as in the case with respect to the regulations concerning the
Elections Committee, "Whatever the majority decides, even though it be
not from the whole, will be valid and hold good" (Resp. Rashdam, Yoreh
De'ah 151). And in another responsum, support can be found for the view
that when something has been agreed, and later some of those who made
the decision resign or leave, the decision remains valid, and whatever is
done later is valid, even though some are missing (Resp. Mabit, Yoreh
De 'ah I 51 ). And in fact, there is no other possibility, for were this not so,
the community would never decide anything if individuals had the power
to rescind the agreement (Resp. Rosh. 6:5)
12. Delegation of Authority
H.C. 380/74
SALAMAN v. NATIONAL LABOUR COURT et al.
(1976) 30{1) P.D. 495,496, 501
The issue in this petition was whether the dismissal of the petitioner was politically
motivated and therefore unlawful.
Berinson J.: Counsel for the petitioner sought to invalidate an arbitration
award on several grounds: the arbitration was held not before the pertinent
committee but before only two of its members; neither the committee nor
the arbitrators were disposed to listen to the submissions of the petitioner;
the matter had not been brought before the central review committee; the
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PART THREE: SOCIAL AND ADMINISTRATIVE REGULATION
award had not been signed by all members; all that existed was a letter
from the secretariat of the committee concerned with dismissals; and a
copy of that letter had been sent to the petitioner but the award was
not properly signed.
The petitioner brought no evidence concerning the division of functions
amongst the various subordinate bodies of the central review committee,
the rules of procedure or the form of award. It is reasonable to assume
that not everything needs to be brought to the attention of the plenary
committee for consideration and decision. The committee is a large body,
comprising a large number of members. The secretariat is also a large body
and sufficiently representative. Accordingly, only matters of fundamental
importance or of a very general nature are brought before the committee
for decision in the sense of Jethro's advice to Moses that "every great
matter they shall bring unto thee, but every small matter they shall judge
themselves" (Ex. 18:22).
H.C. 702/79
GOLDBERG v. MAYOR OF RAMAT HASHARON et al.
(1980) 34(4) P.D. 85, 88, 89-90
The petitioner challenged the delegation of certain powers by the Mayor of Ramal
Hasharon and sought inter alia to have such delegation annulled.
Elon J,: An important rule is that discretionary powers must be exercised
by the person vested with the discretion and may not be delegated to
another person unless he is expressly authorised to do so …
It should be pointed out that this rule can already be found in ancient
Jewish administrative law. Such law underwent great creative development
with the rise of the Jewish community, beginning in the tenth century.
The Jewish community in the different centers of the Diaspora enjoyed
extensive internal and judicial autonomy, and because of the widespread
activity of the communal leaders in a variety of public and administrative
areas, a long series of administrative law princlples was developed (see M.
Elon, Jewish Law, Part 1, 547; vol. 2, 558; Elon, "Public Authority and
Administrative Law" in The Principles of Jewish Law (1975) 645).
In one of his responsa, Ribash dealt with the delegation of powers of
municipal administration, similar to the present case (Resp. Ribash 228).
A particular community in Catalonia had enacted a regulation empowering
three of its leaders (called "trustees") together with the local bet din (Jewish
court) to choose a group of thirty persons for supervising different
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PUBLIC AUTHORITIES
communal matters, concerned largely with the distribution of the burden
of tax and its collection. "The trustees and the bet din deliberated on
the choice of the thirty persons and since they could not agree upon
the selection, they left it to two individuals to decide." A section of the
community opposed this delegation of powers, arguing that "the trustees
and the bet din have no power to appoint any one to make the selection
since they themselves were the ones empowered and authorised to do so
and therefore, even if they did appoint the two, the selection was of no
effect."
In a lengthy and detailed answer dealing with agency law and the
delegation of powers, Ribash accepted the view of the opposition and
concluded:
Although in general an agent may appoint another as his agent where
it may be assumed that the principal will not mind, in the present case
it appears that the trustees and the bet din, who are the agents of the
community for selecting the thirty appointees, cannot appoint others in
their place to make the selection, since that was not expressly provided
in the regulation.
In such a matter people are particular. The affairs of the community
depend upon the selection of the thirty appointees and those who are fit
to choose them must exercise great caution and give much thought in
choosing persons who are wise and discerning and acquainted with the
affairs of the community, its laws, customs and regulations, persons who
love righteousness and pursue peace and towards whom the majority of
the community are well disposed. There is no doubt that people are
very concerned as to who will make the choice …. Since the community
is concerned that the persons making the choice should be persons of
importance and prominence, it is not the community's intention that
they should be able to appoint others in their place, even if those others
are as wise and discerning as they themselves.
Furthermore, even if the community did not insist on this point, they
could nevertheless not appoint others in their place since they were not
given express power to do so. The authority of the trustees and bet
din to choose the thirty appointees is given orally, and oral matters
are not passed on to an agent …. This is not a case of handing over
an article but rather, a matter of words, and in the very carrying out
of his agency the agent acts as agent but cannot leave it to another
agent.
For these reasons, the first selectors cannot appoint others in their
place unless expressly authorised to do so, for only then, as it were, will
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PART THREE: SOCIAL AND ADMINISTRATIVE REGULATION
the community itself have chosen the two (see also Arukh haShulhan,
Hoshen Mishpat 182:8; Elon, "Public Authority," etc. ubi supra, 648-49).
The functions and authority which a person chosen by the community
receives under law, and which involve deliberation and thought, must be
exercised by him personally unless he is expressly authorised to delegate
such functions and authority.
13. Exercise of Official Powers
See: A.
V.
STATE OF ISRAEL, p.
178.
B. The Citizen and the Authorities
1. Presumption of Innocence
H.C. 94/62
GOLD v. MINISTER OF THE INTERIOR
(1962) 16 P.D. 1846, 1851-1852
On arrival in Israel the petitioner expressed his desire to seule here, and also made it
known that he had received a passport in the U.S.A. on a false declaration that he had
lost his old passport. The respondent refused to give him a new immigrants certificate,
believing honestly – on the basis of material that included an indictment, a summons
to trial and a sworn affidavit from the American police – that the petitioner had a
criminal past that might endanger the public welfare.
Cohn J.: A person has the basic right to be presumed innocent not only so
that he will not be punished without trial, but also so that his honour and
good name and all his other personal and material rights will not be
prejudiced by reason of any criminal act so long as he has not stood
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PUBLIC AUTHORITIES
trial. Moreover, this basic right, like most basic rights of the individual, is
given and stands not merely so that he may defend himself in court but
rather, for his protection against the administrative authorities …
So that no suspicion arises in the mind of any person (particularly the
respondent) that we are bound only to the English legal tradition and the
ethics of modem nations in order to prescribe such fundamental concepts,
let me say that it is a positive commandment to judge our neighbours in
righteousness (Lev. 19:15). This was understood and explained by Rashi
thus: "Scripture is not speaking of litigation between individuals, but of
an instance where you observe your neighbour doing something which
may be either sinful or right, in which event consider it right and do not
suspect that he is committing a wrong" (Rashi to Shevu'ot 30a). The just
manner in which an administrative authority is commanded to act raises
the presumption that the person is innocent; only when no reasonable
doubt exists of his guilt, because he has been found guilty after a properly
conducted trial, will this presumption no longer be available to him (see
Shabbat 127b and Berakhot 31b; Hafetz Hayim, Positive Precepts, 3).
2. Acquisition of Land for Public Purposes
H. C. 326/65
SARVI et al. v. ISRAEL LANDS AUTHORITY
(1966) 20(2) P.D. 490,499
Kister J.:The principle that the state must pay compensation for confiscating
private property has crystallized and is recognized in many legal systems, as
may be seen from the recent English decision in Burmah Oil Co. Ltd. v.
Lord Advocate [1965], A. C. 75, 152. This principle, I may point out, has
long been recognized in Jewish law. Maimonides puts it in the following
manner:
(The King) takes fields, olive trees and orchards for his vassals when they
go to war and they are spread out over such places, and can only sustain
themselves therefrom, and he makes payment (M. T. Melakhim 4:6).
In view of this fundamental principle, the State must ensure that the
petitioners, whom it placed in the Jamosin quarter after having been
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PART THREE: SOCIAL AND ADMINISTRATIVE REGULATION
evacuated from Yaffo during the war, are compensated. In its … notice [to
them, the Lands Authority] even prescribed the manner for compensating
the petitioners so that they would receive alternative housing should it
desire to make other use of the area in which they now dwell. The evacuees
were assured that the matter would be arranged by mutual agreement, but
since no such arrangement has been agreed upon, a decision on the matter
must inevitably be left to a suitable judicial body.
The State thought that it would discharge its duty by means of an
agreement with a particular housing company to which it had transferred
its rights in the land on which the petitioners dwelt, to the effect that the
company would provide alternative housing to all those who desired it in
the buildings that it was to erect in that area.
C.A. 216/ 66
TEL AVIV-YAFFO MUNICIPALITY v. ABU DAYAH
(1966) 20(4) P.D. 522, 525. 546
Agranat P.: On 25 January 1966, the respondent applied to the Tel Aviv
District Court asking for an assessment of the compensation due to him
in respect of his rights in Block 6638, Plot 43, on its expropriation by the
appellant, in accordance with the Land (Acquisition for Public Purposes)
Ordinance, 1943 …
And finally, Jewish law also recognizes that there is no expropriation
without payment. In Sarvi v. Israel Lands Authority (see H.C. 326/65
above) my learned friend Kister J. cited Maimonides regarding the rights
of the king to make expropriations for army requirements during wartime.
He has also drawn my attention – as regards the expropriation of
land for public purposes such as roads, by public authorities – to the
rule summed up by Hazon Ish to Baba Batra 4:16, which states inter
alia:
In any event the individual should not suffer any financial loss, but the
public must make good his loss since the individual is not required to
provide for public purposes out of what is his … but only needs to give
his share with the public.
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PUBLIC AUTHORITIES
3. Collection of Tax
C.A. 65/76
HEVRAT HAGIVAH HA'ADUMAH 5000 LTD. v. MUNICIPALITY OF RISHON
LEZION
(1976) 30(3) P.D. 818. 819,823
Cohn J.: The respondent Municipality demanded from the appellant
company the payment of IL54,555 as its share of the costs of the highway
which the Municipality intends to construct. Having received no response,
the respondent commenced summary proceedings in the District Court.
The appellant asked for leave to defend, pleading not only that summary
proceedings were not the proper form of trial but also that the Municipality
is not entitled to claim either at all or at the present stage. The learned
Registrar dismissed both pleas and awarded the respondent the amount
it claimed with interest and costs. The appellant then appealed to this
Court…
The by-law that empowers a Municipality to levy participation money
for expenses that have not been made and for works that have not been
executed but merely because a resolution was once adopted to carry out the
works in question, is invalid not only because it has no basis in the law
and lacks authority but also because it contains an element of robbery and
is unreasonable. The element of robbery arises from the fact that where
a person borrows something without the knowledge of the owner, he is
called a robber (Baba Batra 28a) and the same applies where one forcibly
takes "a deposit" for nothing tangible, even when restitution is provided
for. Maimonides permits a king to hew down trees and destroy houses
and a fortiori to levy taxation for building roads or bridges. But all this
will obtain where "the fame of a king has spread"; "where it has not, he
is like a violent robber, acting like a lawless band of armed highwaymen:
such a king and his vassals are in all respects robbers" (M. T. Gezelah 5:18).
A king's fame spreads when he acts and issues decrees "with the consent of
the local population." Likewise one may say that the fame of a municipality
spreads when it imposes taxation and raises money either with consent of
the legislature or with the consent of those who pay the taxes. In the
absence of express and unambiguous consent, a demand for payment
by way of a deposit amounts to "state robbery" by virtue of which money
may not be extracted from its owners.
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CIVIL RIGHTS
A. Protection of Human Dignity
1. Reputation and Respect
FH. 9/77
ISRAEL ELECTRICITY CO. LTD. et al. v. HA'ARETZ NEWSPAPER LTD. et al.
(1978) 32()) P.D. )37, 343, 344
This hearing concerned the dismissal of the claim of the Israel Electricity Company for
damages for libel.
Landau D.P.: The Basic Law: Civil Rights Bill of 1973 states in sec. 3
that "every person is entitled to legal protection of his life, his person,
his soul, his honour and his reputation" and this right may not, so it
seems, be limited by any law. This formulation, which gives reputation
equal standing with the right to life, recalls the words of our ancestors;
"Whosoever shames his friend in public, it is as if he spills blood."
Today, this is called "character assassination". (On the rules in Jewish law
which stress the important position of a person's honour in the system of
juridical values meriting protection, see Rakover, "Protection of a Person's
Honour", Research and Surveys in Jewish Law no. 54, published by the
Ministry of Justice.)
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PUBLIC AUTHORITIES
3. Collection of Tax
C.A. 65/76
HEVRAT HAGIVAH HA'ADUMAH 5000 LTD. v . MUNICIPALITY OF RISHON
LEZION
(1976) 30(3) P.D. 8l8, 819, 823
Cohn J.: The respondent Municipality demanded from the appellant
company the payment of IL54,555 as its share of the costs of the highway
which the Municipality intends to construct. Having received no response,
the respondent commenced summary proceedings in the District Court.
The appellant asked for leave to defend, pleading not only that summary
proceedings were not the proper form of trial but also that the Municipality
is not entitled to claim either at all or at the present stage. The learned
Registrar dismissed both pleas and awarded the respondent the amount
it claimed with interest and costs. The appellant then appealed to this
Court…
The by-law that empowers a Municipality to levy participation money
for expenses that have not been made and for works that have not been
executed but merely because a resolution was once adopted to carry out the
works in question, is invalid not only because it has no basis in the law
and lacks authority but also because it contains an element of robbery and
is unreasonable. The element of robbery arises from the fact that where
a person borrows something without the knowledge of the owner, he is
called a robber (Baba Batra 28a) and the same applies where one forcibly
takes "a deposit" for nothing tangible, even when restitution is provided
for. Maimonides permits a king to hew down trees and destroy houses
and a fortiori to levy taxation for building roads or bridges. But all this
will obtain where "the fame of a king has spread"; "where it has not, he
is like a violent robber, acting like a lawless band of armed highwaymen:
such a king and his vassals are in all respects robbers" (MT. Gezelah 5: 18).
A king's fame spreads when he acts and issues decrees "with the consent of
the local population." Likewise one may say that the fame of a municipality
spreads when it imposes taxation and raises money either with consent of
the legislature or with the consent of those who pay the taxes. In the
absence of express and unambiguous consent, a demand for payment
by way of a deposit amounts to "state robbery" by virtue of which money
may not be extracted from its owners.
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CIVIL RIG HTS
A. Protection of Human Dignity
l. Reputation and Respect
F.H. 9/17
ISRAEL ELECTRICITY CO. LTD. eta/. v. HA'ARETZ NEWSPAPER LTD. eta/.
(1978) 32(3) P.D. 337,343, J«
This hearing concerned the dismissal of the claim of the Israel Electricity Company for
damages for libel.
Landau D.P.: The Basic Law: Civil Rights Bill of 1973 states in sec. 3
that "every person is entitled to legal protection of his life, his person,
his soul, his honour and his reputation" and this right may not, so it
seems, be limited by any law. This formulation, which gives reputation
equal standing with the right to life, recalls the words of our ancestors;
"Whosoever shames his friend in public, it is as if he spills blood."
Today, this is called "character assassination". (On the rules in Jewish law
which stress the important position of a person's honour in the system of
juridical values meriting protection, see Rakover, "Protection of a Person's
Honour", Research and Surveys in Jewish Law no. 54, published by the
Ministry of Justice.)
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H.C. 355/79, 370/79, 373/79, 391/79
KATLAN et al. v. THE PRISON SERVICE et al.
(1980) 34(3) P.D. 294, 305-307
These proceedings turned on the question of whether the Prison Service and the
Governor of Ram/ah Prison may order the administration of an enema without the
consent of the prisoners concerned in order to discover drugs which prisoners had
swallowed. The drugs had been smuggled into the prison for personal use and as a
means of acquiring influence and status.
Cohn D.P.: The reasonableness of a regulation – and even more so of an
administrative directive – is determined by the good standards accepted
by the majority of people in a democratic society and state of law, and
there is none better and more accepted than basic respect for humans. A
free and civilised society is distinguished from a barbaric and oppressive
society by the degree to which it treats a human being as a human being.
Lofty classic expression was given to this by the Mishnah:
Therefore Adam was created alone, to teach you that whosoever destroys
a single soul – Scripture ascribes to him as though he had destroyed an
entire world, and whosoever preserves a single soul ~ Scripture ascribes
to him as though he had preserved an entire world; and for the sake of
peace among mankind let no man say to his fellow man "My father
is greater than your father"…. Therefore every single person must say,
"The world was created for my sake" (M. Sanhedrin 4:5).
Just as a person must (note, not "may") say, "The world was created
for my sake", so must every other person say that the world was no less
created for his sake. This is what Hillel meant when he said that the
whole Torah is exhausted in the great rule that every one is entitled to be
treated according to your own honour, as you would wish to be treated
(Shabbat 31a). However, it is not only because we have been commanded
from ancient times to respect man (or in modern terms, because respect
for man is an outstanding element of the Jewish heritage) but also because
zealous respect for a person is a precondition for ensuring his rights
and other freedoms, that this is a good standard by which to measure
reasonableness as aforesaid.
My learned friend Barak J. in his wisdom cited many impressive passages
from English and American legal literature to show that in the view of the
leading judges and legal philosophers of the gentile world as well, the
safeguarding of a man's honour is preferable to the satisfaction of the
legitimate requirements of the rule of law and order. I have said to myself
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PART THREE: SOCIAL AND ADMINISTRATIVE REGULATION
that we do not live by these authorities alone. Let me try to quarry from
our own deep sources the sayings of our Sages to illuminate the matter
and gladden hearts.
The duty to abide not merely by the commandments of the Written
law but also by those of the Oral law derives from the verse: "According
to the law which they shall teach thee and according to the judgment
which they shall tell thee thou shalt do; thou shalt not turn aside from
what they tell thee to the right or to the left" (Deut. 17: 11). On the
basis of this verse, it was decided that whoever transgresses what the
Sages have declared and does not follow their directives transgresses
a negative commandment, since it says, "Thou shall not turn aside" (M. T.
Mamrim I :2). The Sages also prescribed the eminent principle, "Great is
human dignity since it overrides a negative commandment of the Torah"
(Berakhot 19b). Rab bar Sheva explained this principle to R. Kahana as
referring to the negative commandment not to turn aside, i.e. that human
dignity over-rides all rabbinical prescripts and interdicts which we are
required to observe by virtue of the negative commandment not to turn
aside, as opposed to the prescripts and interdicts of the Torah which
do not yield to human dignity. This rule at once met with criticism in
the light of the verse "There is no wisdom or understanding or counsel
against the Lord" (Prov. 21 :30). If it is a Divine commandment that
imposes upon us the duty to obey the prescripts of the rabbis, how can the
rabbis release us from this duty for the sake of human dignity, or at all?
The problem is resolved in the language of the Gemara: "All the ordinances
of the rabbis are based on the prohibition of 'thou shalt not turn aside'
but for the sake of human dignity the rabbis allow the act" (ibid.). In
other words, the rabbis who imposed the prohibition may remove it later
for the sake of human dignity.
The distinction between the Written law which does not yield to human
dignity and the Oral law which does so yield directly affects the matter
before us. If we "translate" the Written law into legal terms as meaning
primary legislation, and the decrees of the scribes as being secondary
legislation, we may say that even human dignity cannot prevail over primary
legislation, whereas secondary legislation must yield to human dignity. That
is what we have said: If it is possible to contemplate an infraction of human
dignity by forcible penetration of the individual's inner parts, that could
only be permissible under primary legislation; so long as it is not so
permissible, or so long as no genuine implementation of any such legislation
demands an act that violates human dignity, such dignity is immune from
any licence to violate. If the analogy is untenable, this is only because
the Written law is presumed to be eternal and immutable whereas primary
legislation is, after all, a human act, variable and repealable at the wish of
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the legislature; and in this respect the Oral law of the rabbis is similar to the
primary legislation of our own times. That may also suggest to the primary
legislature that just as the rabbis were bold enough to waive all prohibitions
instituted by them where necessary to preserve human dignity, it should be
cautious in sacrificing human dignity on the altar of any other requirement
whatsoever.
The concept of "human dignity" is not expressly defined, but one may
infer from all the cases in which the sources speak of it that violation of
such dignity consists of any act that brings scorn, shame or embarrassment
to a person. Thus, to strip the clothes off someone in a public place was
deemed an infraction of human dignity (Menahot 37b), as was preventing
a person from attending to his bodily needs (Eruvin 41b). A corpse
that has begun to smell offensively may be removed on the Sabbath
from the place where it is lying on account of human dignity (M. T.
Shabbat 26:23 based on Shabbat 94b). And although it is forbidden on
the Sabbath to move the lightest of stones, especially from one domain
to another, it is permissible to carry them up to the roof (for cleaning one's
private parts) on grounds of human dignity (Shabbat 8la-b). (Let no one
wonder that small stones were used for this purpose, since they were only
as large as a nut, according to R. Meir, or an egg, according to R. Yehudah,
and R. Yohanan forbade the use of chipped stones (shards) for cleansing
oneself because of the danger of cuts) …
On the other hand, the halakhah is that one must do everything to
prevent another from committing a prohibited act, even if his honour is
affected: if one sees a person dressed in a garment of a mixture of wool and
linen, which is an offence under the Torah (Deut. 22: 11 ), one must tear it
from his body even in public and "even if he was his teacher who taught him
wisdom, since human dignity does not displace the prohibition of an express
negative commandment of the Torah" (M. T. Ki/aim 10:29). This will only
apply to a transgression manifest to all and where there is no doubt as
to the commission of the offence and the identity of the offender…since
it is equally forbidden to touch a person merely suspected of a wrong
(Menahot 37b). That is the situation in the case before us: even were
it permitted to prevent the commission of a wrongful act by removing
drugs from the body of a person, when it is clearly and demonstrably
known that the drugs are in his body, there is no authority to penetrate his
body merely to search, to establish whether an offence has been committed
or not. The act of preventing the commission of an offence is intended to
prevent the continuance of an ongoing offence the commission of which has
already begun, and not to prevent an offence the commission of which is
only suspected.
To conclude, human dignity is supreme since it prevails over the
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prohibition of introducing drugs into prison, if that can only be enforced
by a violation of the body of a person and his dignity.
2. Oppression of the Convert
H.C 230/ 86
MILLER v. MINISTER OF THE INTERIOR et al.
(1986) 40(4) P.D. 436, 447-448
The petition turned on the decision of the first respondent to insert the word "converted"
next to the word "Jew" in the nationality rubric of the petitioner's identity card.
The petitioner underwent conversion in the United States, and received a conversion
certificate from the United States Reform Movement. Because those registering marriage
and divorce in Israel attribute great .significance to the item ofnationality in the identity
card, the respondents believed that they had the authority not to register a sensitive
item such as religion and nationality in a way that may mislead another authority and
thus cause grave harm to the public.
Elon J.: My colleague, Shamgar P., explained clearly that under the
Population Registry Law, 1965, a registration clerk is not empowered to
add the word "convert" in parentheses after the word "Jewish". I am of
the same view, and would just like to add, that this parenthetical addition,
which "complements" or "describes" every case of conversion, played no
part in the halakhah. I quote from what I have said previously: "The
Jewish people does not 'make souls' in order to bring members of other
nations within its ranks" (Micah 4:5; M. T. Melakhim 8:10). And later, at
p. 300:
A Gentile who joins the Jewish people becomes one of the members
of that people, with all the rights and obligations: "Ye shall have one
statute, both for the stranger and for him that is born in the land"
(Num. 9:4); "Let not the foreigner who has joined himself to the Lord
say: The Lord will surely separate me from his people …for My House
shall be called a House of Prayer for all peoples" (ls. 56:3-7). That
applies not only to the future, but also to the past. Thus Rambam
replied to R. Ovadiah the Righteous Proselyte:
Therefore, every one, to the end of all generations, who becomes
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a proselyte, and whoever declares the name of God as One, as 1t 1s
written in the Torah, is a disciple of Abraham, our father … and they are
all children of his household … and there is no difference at all between
us and you…. Let not your genealogy be deprecated in your own sight…if
we are descended from Abraham, Isaac and Jacob, you are descended
from The One by whose word the world was created (Resp. Rambam,
Freiman ed., 369).
Apparently, there is no person with respect to whom the Torah cautioned
more – in thirty-six places (Baba Kamma 59b; Resp. Rambam (Blau) 448)
– than it did against oppression of the convert, whether by word, by deed,
or by way of halakhic-legal registrations and determinations. Two factors
were at work here: the first – the nation's historical memory: "And you
shall love the stranger, for you were strangers in the Land of Egypt"
(Deut. 10:9), and also, in the said responsum of Rambam to R. Ovadiah,
we find:
For the Torah was given both to us and to the proselytes, as it is said: As
for the congregation, one statute there is for you and for the proselyte,
an eternal law for your generations, for you and for the proselyte
before the Lord; one law and judgment shall be for you and for the
proselyte. Know thou that our fathers who came out of Egypt were,
the majority of them, idolators. In Egypt they intermingled with the
Gentiles and learned their ways, until the Holy One, Blessed be He,
sent Moses, peace be upon him, the teacher of all prophets, and set us
apart from the other peoples and brought us under the wings of the
Shekhina [Divine Presence] for us and for all the proselytes, and gave
us all one Law (Resp. Rambam 293).
The second factor is the special sensitivity of a person who has left
his social and spiritual world, the world in which he was born and
raised, in which he was educated and worked, and has gone over to
become part of a different and special spiritual world and social milieu,
and has assumed their laws and way of life: "And a stranger thou shalt
not oppress; for ye know the heart of a stranger" (Ex. 23:9). One does
not remind a convert of his former status and deeds, and his honour
should not be held lightly (Mekhilta Mishpatim 18; Baba Metzia 59b;
M. T. De'ot 6:4; Se/er haHinnukh, Commandment 431, etc.). And we have
also learnt: "The proselyte is dear, for in every place he is described as
an Israelite" … and "he will be called by the name of Jacob – these are
the righteous proselytes" (Mekhilta /oc. cit.). And so ruled one of the later
halakhic authorities: "Every person who treats the proselyte in a manner
different from his treatment of an Israelite – transgresses this positive
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PART THREE: SOCIAL AND ADMINISTRATIVE REGULATION
commandment, as it is written: He shall be as a citizen amongst you,
and you shall love him as yourself' (Commentary of R. Jeruham Fischel
Perla to Sefer haMitzvot of R. Sa'adia Gaon, Positive Commandment
no. 82). And there is no doubt that in adding the word "converted" in
parentheses – an addition which is not found beside the "ordinary" Jew
– we are acting in a way that is different from the way in which we
act towards any other Jew, and we are therefore warned not to act thus
and not to add [this word].
3. Imprisonment as a Means of Punishment
See:
STATE OF ISRAEL v. SEGAL
et al, Part 6, Penal Law, p. 491.
B. Freedom of Religion and Conscience
I. Exemption from Military Service
H.C. 734/ 83
SHINE et al. v. MINISTER OF DEFENCE et al.
(1984) 38(3) P.D. 393, 403-405
The appellant served a sentence for non-compliance with a call-up to reserve duty on
grounds ofconscience. During his imprisonment he received another call-up that was due
to commence a few days after his release from prison, with which he again refused to
comply for reasons of conscience. He argued that the relevant army regulations were
invalid since they were discriminatory; that his second call-up did not serve a military
purpose but was intended to penalise him for his previous refusal; that the required
forty-two days' prior notice had not been given to him, and that his imprisonment was
illegal and should have been counted as part of his reserve duty.
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Elon J.: It is right that we should examine the position of Jewish law on
this matter, if only briefly. The grounds afforded by one legal system are
naturally not identical with those of another system, especially on this matter
in which philosophy and law come together, and most especially in the
case of a system such as Jewish Jaw with its outlook, in which law and
morals are intricately combined. In principle, Jewish law, even in earliest
times, treated the present subject as part of a group of matters relating to
the release from the duty of army service. These matters are dealt with
in Deut. 20:1-9 and in particular in verses 5-8:
5. And the officers shall speak unto the people, saying: What man is
there that hath built a new house and hath not dedicated it? Let him go
and return to his house, lest he die in battle and another man dedicate
it. And what man is there that hath planted a vineyard and hath not
used the fruit thereof?
6. Let him go and return unto his house, lest he die in battle and
another man use the fruit thereof.
These two verses establish that in certain circumstances economic
considerations afford exemption from army service. The next verse refers
to the family aspect:
7. And what man is there that hath betrothed a wife and hath not
taken her? Let him go and return unto his house, lest he die in battle
and another man take her.
The verse that follows approaches the present case:
8. And the officers shall speak further unto the people and they
shall say: What man is there that is fearful and fainthearted? Let him
go and return unto his house, lest his brethren 's heart melt as his
heart.
We learn from other sources of how these exemptive grounds were applied
in practice. Thus God says to Gideon (J. 7:3):
Now therefore make proclamation in the ears of the people, saying
"Whosoever is fearful and trembling, let him return and depart early
Mount Gilead." And there returned of the people twenty and two
thousand and there remained ten thousand.
The substance of these verses is repeated in I Mace. 3:55:
As the law commands, he ordered back to their homes those who were
building their houses or were newly wed or who were planting vineyards
or who were fainthearted.
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The Sages add various details and other grounds for exemption from
army service but this is not the place to enlarge on these (see M.
Sotah 8:2-7; T. Sotah 7:18-24; Sifre, Deut. 192-197; M.T. Melakhim 7;
Sefer haHinnukh 502; S. Arielli, The Law of War (1972) 35-36, 52-90;
S. Goren, The Law of the Sabbath and the Festivals (1982) 369-379).
For release on medical grounds, see Sifre loc. cit., 190.) Let us look at
certain observations on release from army service of those who are "fearful
and fainthearted":
R. Akiva says "fearful and fainthearted" is to be understood literally:
he who is unable to stand in the ranks of battle and see a drawn sword
(M. Sotah 8:5).
A similar definition is to be found in a Beraita (Sotah 44b):
The Rabbis taught: If he heard the sound of trumpets and was terrorstricken, or the crash of shields and was terror-stricken, or beheld the
brandishing of swords and urine discharged itself upon his knees, he
returns home.
According to these definitions, the "fearful and fainthearted" are those
who fear the panic of battle. A further definition is given by R. Akiva in
T. Sotah 7:24:
R. Akiva said: Why does the Torah add "fainthearted" to "fearful''?
Even the bravest of men and the strongest of them who feels merciful is
to return home.
According to this interesting definition, "the fearful" is one whose fear
overcomes him, while "the fainthearted" is one who, while not fearful of
battle, is filled with feelings of mercy, even for the enemy, so that he
becomes incapable of waging battle and there is a risk that others will be
similarly affected.
Another explanation is cited in the Mishnah in the name of R. Jose
the Galilean: "Fearful and fainthearted" alludes to one who is afraid of
the transgressions he has committed, and for this reason his conscience
troubles him and he may become indecisive and affect others with lack of
resolve. The Mishnah concludes with the following:
To what does all the foregoing apply? To an optional war, but in war
commanded by the Torah [ such as in the conquest of the Land of Israel
(Rashi ad foe.), or in defence against an invading enemy, according to
M.T. Melakhim 5:1] all go forth, even a bridegroom from his chamber
and a bride from her canopy.
Such are the main views of Jewish law on the matter, which in essence
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is similar to release from army service on grounds of conscience. These
grounds are general and universal, based on the nature of man and his
attitude to violence and war. They are not selective and particular to
circumstances of time and place, or based on social-ideological perceptions.
Those general, universal grounds are only applicable, however, in the case
of optional wars; they do not apply in times of emergency, when the
war is a war commanded by the Torah.
For all these reasons we decided, on the date of the hearing, to dismiss
the petition.
2. Recruitment of Women
H.C. 456/71
BARAZHANI v. MINISTER OF JUSTICE et al
(1972) 26(2) P.D. 543, 549
The Exemptions Committee operating by virtue of the Defence Service (Exemption)
Regulations 1952 discussed the case of the petitioner, who asked for an exemption
from military service for reasons of religious conscience, and it decided that "there is
nothing to prevent her from serving in the Army."
Kister J.: Indeed, the trend or tendency in a democratic state is to recognize
the citizen's freedom of religion and conscience, and not to force a citizen
to violate a prohibition applying to him by virtue of his religion, or
to act contrary to his conscience. Not in every single case, however, will
the citizen be able to rely on the principle of freedom of religion and
conscience. With respect to military service, a male resident of Israel who
belongs to a religious grouping that prohibits military service will not
be able to request an exemption from such service, and this is also the
case with respect to a person who claims that military service violates
his conscience.
With respect to women, on the other hand, the law does recognize
such an exemption, and it is the task of the Exemptions Committee to
determine whether, on the evidence, the person requesting the exemption
is religiously observant, and whether, according to the laws of her religion,
she is prohibited from serving in the Army.
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PART THREE: SOCIAL AND ADMINISTRATIVE REGULATION
What is at issue here are civil rights which are recognized the world
over, and the Committee must therefore act only after careful thought and
refrain from laying down criteria or means of proof that will render the
law devoid of all meaning.
Indeed, in view of the above, it might have been sufficient to mention
the prohibition issued by the Chief Rabbinate, but I felt it necessary to
discuss the nature of the prohibition and the degree of gravity attached
to it in order to understand that for a person who believes and who feels
himself to be bound by the edicts of the Rabbis, the prohibition is no light
matter. Noteworthy here is one of the sources for the prohibition on real
military service for women. Nazir 59a states:
R. Eliezer b. Jacob says: How do we know that a woman should not
go to war bearing arms? Scripture says, "A woman shall not wear that
which pertaineth unto a man" (Deut. 22:5).
Similar statements are to be found in Sifre Ki Tetze, 226.
In the wake of these statements, the rule was laid down in M. T. A vodah
Zarah 12:10:
A woman shall not array herself in men's raiment, such as putting on a
hat or headdress or wearing armour and so forth …
We find words to the same effect in Yoreh De'ah 182:5.
C. Freedom of Expression
I. Freedom of Opinion and Expression
See:
NEIMAN
Y.
CHAIRMAN OF CENTRAL ELECTIONS COMMITTEE.
208
p. 209.
CIVIL RIGHTS
D. Rights of Aliens
I. Rights of the Gentile in Israel
H.C. 200/83
WATA'AD etal. v. MINISTER OF FINANCE etal
(1984)38(3) P.D. 113, 119
This petition challenged the validity of certain regulations governing financial grants
to students in theological seminaries, on the ground that they discriminated against
non-Jews, there being no such institutions in the country for Mos/ems or Christians.
Tirkel J.: In considering the question of whether these regulations are
discriminatory, we would do well to go back to first principles.
The principle of equality and the prohibition against discrimination,
embodied in the commandment, "Ye shall have one manner of law, as
well for the stranger as for the home-born" (Lev. 24:22), which the Sages
took to mean "a law that is equal for you all" (Ketubot 33a; Baba
Kama 83b), have been enshrined in Jewish law ever since the Jews became
a nation. When we returned to our land and declared the independence of
our State, after thousands of years of exile during which our people were
the victims of hostile discrimination amongst the nations, our Declaration
of Independence explicitly ensured complete equality of social and political
rights to all inhabitants, irrespective of religion, race or sex. Accordingly
we, more than any other people, are commanded to examine meticulously
the least manifestation, open or disguised, of wrongful discrimination, in
case we are guilty of that from which we ourselves suffered.
El.A. 2/84, 3/ 84
NEIMAN et al. v. CHAIRMAN OF CENTRAL ELECTIONS COMMITTEE OF THE
ELEVENTH KNESSET
(1985) 39(2) P.D. 22j, 293-302, 318
This appeal concerned the decision of the Central Elections Committee to reject
applications by two party lists to take part in elections to the Eleventh Knesset
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PART THREE: SOCIAL AND ADMINISTRATIVE REGULATION
Elon J.: My colleagues have expounded at length the views of lawyers
and legal thinkers in other legal systems and in other countries regarding
freedom of expression and freedom of thought. The different views are
not always consistent and often they are contradictory. Enquiry into
this subject is very important because it can broaden one's horizons and
deepen the study of this matter which is common to all enlightened and
progressive legal systems. In this context I would note that in a study of this
kind one must always bear in mind the political background and the legal
framework in which the views are expressed, for they may differ from those
in Israel. Since, however, the various approaches to the subject…have been
considered well by my colleagues, I am released from the duty of going over
them again. Here, too, it is fitting that we find sustenance in the principles
of the Jewish tradition…
Before I proceed along this course, one preliminary observation. It is
well-known that Jewish thought over the ages – including the halakhic
system, as we shall see – is full of varying perceptions and conflicting
approaches. No litigant finds it difficult to extract from the recesses of
the sources some support for his own arguments and views …. This applies
to each and every issue, including that of freedom of expression. Certainly
it goes without saying that these approaches and perceptions taken together
have contributed to the deepening and enriching of Jewish thought. Those,
however, who seek understanding must distinguish between that which
was of temporary significance and that which is of continuing importance,
between the expression of a generally accepted opinion as against something
exceptional….From this vast and abundant storehouse, the inquirer must
draw liberally that which his time and place require …. This reality and the
need so to distinguish are of substantive importance in Jewish thought
and in the world of halakhah itself – as they are by their nature in every
system of thought.. .. There are many facets to the matter but the present
is not the occasion to expand (and see R. Kook, Eder haYakar (1967)
13-28; M.R. Konvitz, ed., Judaism and Human Rights (1972) 11)…
The prophets of Israel and their prophecies have served and still serve
as archetypes of indignant and uncompromising critics of governmental
authority that wrongfully exploits its might and force and acts corruptly
towards the public or the individual. They protest against the exploitation
of the poor and the oppression of the widow, against the violation of
public and private rights, against deviations from the essential spirit of
the Torah and the halakhah. The struggle of Israel's prophets, their
watchfulness, even when they encountered violent and virulent opposition,
have served as an unfailing inspiration for the struggle for freedom
of thought and expression…. Anyone familiar with political science and
democratic thinking is well-acquainted with all this.
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There is, I think, no more striking and thorough-going expression of
freedom of thought and the importance of every point of view, even that
of the individual, than the principle laid down by the Sages regarding the
dispute between the schools of Hillel and Shammai: "The utterances of
both are the words of the living God" (Eruvin 13b; Y. Berakhot 1:4; Y.
Yevamot 1:6). For practical purposes, the binding norm of the ha/akhah lies
with the school of Hillel, "because they were felicitous and patient" (Rashi to
Eruvin 13b), but the views of their rivals remain legitimate and substantive
in the world of the halakhah. This kind of approach is characteristic.
Even after the Sanhedrin, the highest national court, had decided against
him, the "rebellious elder" could continue to adhere to his views and
teach them as before so long as he did not give any practical decision
accordingly (M. Sanhedrin 11:2; Sanhedrin 86b). Furthermore, there is
always the possibility that a minority view might in time prevail and
become accepted in practice. "R. Yehudah said, the words of the individual
among the many were recorded in case their time would come and they
would be relied on" (T. Eduyot l:4; M. Eduyot l:5); "Even though the view
of the individual may not have been accepted at first and the majority
may have disagreed, if later on the majority comes around to that view, it
would become the halakhah. The whole Torah was thus given to Moses,
affording the possibility of various rulings, and when asked how could a
matter be determined, his reply was that the majority is to be followed,
since all utterances are the words of the living God" (Commentary of R.
Shimshon miShantz ad. loc.). The words of Akavia b. Mehalalel, who
differed from his contemporaries, still reverberate. He testified to four
matters. The rabbis said to him, "Akavia, withdraw these four things
and we will make you President of the Sanhedrin." His answer was: "It
is better for me to be called a fool all my days than become for one
hour a wicked man and have people say that I withdrew my opinions
in order to obtain office" (M. Eduyot 5:6; see also M. Elon, Jewish Law,
870-78).
Pluralism is not a negative phenomenon or a defect: it is of the essence
of the halakhah. "It is not a question of inconstancy or deficiency to
say, Heaven forbid, that the Torah was thereby made into two Tarot.
On the contrary, that is the way of the Torah, the utterances of both
are the words of the living God" (Hayim b. Betzalel, Mayim Hayim,
Introduction). A multiplicity of views and approaches tends, moreover,
to create harmony and uniformity through diversity. In the fine words of
the latest of the codifiers, R. Y.M. Epstein (Arukh haShu/han, Hoshen
Mishpat, Introduction) at the beginning of this century:
Every dispute among the Tannaim, the Amoraim, the Geonim and the
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Poskim in pursuit of true understanding constitutes the word of the
living God and each has a place in the halakhah. That is indeed the
glory of our holy and immaculate Torah. The whole Torah is called a
song and it is the glory of song that its different sounds are various
but harmonious.
This fundamental conception that "the utterances of both are the words of
the living God" has had a decisive influence on the manner and substance
of the codification of the halakhah in all ages and on the manner of giving
judgment and decision (see Elon, op. cit. 870).
Pluralism is a substantive and welcome element in the life of every
civilized society. The Sages even drew up a special benediction for this
wonderful creative power of pluralism. "One who sees a very large crowd of
people makes the benediction, 'Blessed be He who discerneth secret things,
for their features are dissimilar and their views unlike.' "(T. Berakhot 7:5
and Berakhot 58a). A similar benediction is found for creative wisdom.
"Just as creative nature still renders the appearance of men different,
so it is to be believed that wisdom is shared by all men, each different
from the other" (Mayim Hayim, Introduction). Diversity of opinion is
to be honoured properly by the dominant authority. A wonderful expression
of this idea appears in Num. Rabbah Pinhas 21:2 and Tanhuma Pinhas 10:
Just as the features of men are not alike, so also their views are not
alike …. Moses at the moment of his death asked of the Holy One blessed
be He: "Lord of the Universe, the opinion of each one [of the people] is
very manifest to You and one view is unlike another. On my departing
this life I ask of you to appoint for them a leader who will bear patiently
with each one of them according to the view he holds."
That is the theory of leadership and government in Jewish tradition… that
is the great force of the right of each to express his opinion since not
only is that essential to orderly and enlightened government, but it is also
vital to its creative power. In the real world, "two principles that oppose
each other come together and yield fruit; all the more so in the spiritual
world" (R. Kook, Hanir (1909), 47 and Eder haYakar 13 ff.).
When out of the various opinions … one view emerges that may damage
the social, spiritual and cultural foundations of society, that society must
stand steadfast in its spirit and outlook. This end is primarily to be achieved
by persuasion and education. Education does not mean mere preaching to
those who have strayed from the proper path but also self-examination
and questioning of the spiritual and cultural image of the society in which
the thistles and thorns have grown. Civilized society will employ, when
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necessary, the legislative powers available to it to punish those who incite
and encourage an evil cultural perception that threatens it. Those who
merit punishment, those in respect of whom all the requirements of the
law regarding proof of their offences have been fulfilled, will be legitimately
punished. Needless to say, the legislature is entitled to take radical measures
to silence such opinion by denying the right of those who voice it to be
elected to the legislature, and this also means, as Shamgar P. indicated,
denial of the right of those who share such opinion to vote for those
whom they desire to have elected. This is the lawful right of the Knesset
that represents the will of the people …
As I maintained at the outset of my opinion, denial of so basic a
right, in our democratic form of government, is not left to the judiciary
without it first having been expressly empowered in that regard by the
legislature… from which it derives its powers and authority. For a court to
take such power into its own hands without legislative affirmation is in itself
injurious to an enlightened democracy, the very basis of which is the rule
of law and not the rule of the law-maker, the rule of justice and not the
rule of the judge…. For the court to assume such power of disqualification
without express legislative authorization .. .involves another serious danger.
The democratic character of the State of Israel was proclaimed in the
Declaration of Independence in the affirmation that the State will be a
Jewish state and not merely a state of Jews, a state open for Jewish
immigration and the ingathering of the exiles (realised later in the Law of
Return, 1950), and ensuring complete equality of social and political rights
irrespective of religion, race or sex and guaranteeing freedom of religion,
conscience, language, education and culture. These principles also serve us
as a guide. They form part of the special character of the Jewish state.
The best of all shades of Zionist thinkers, Jews with differing outlooks,
citizens of Israel and members of other nations and religions have dealt and
continue to deal with the meaning and practical application in a Jewish state
of the complex of principles set out in the Declaration of Independence.
How and by what yardstick should the court judge the contents of the
election programme of a party list that cannot be reconciled with each of
these principles?
Moreover, my colleague Barak J. observes that invalidation of a party
list because its election programme is inconsistent with the democratic
principles on which the State of Israel is founded will only occur if a
reasonable possibility exists that the will of those on the list will be
realised. When the court comes to deal with this reasonable possibility,
"it must have in mind the entire social picture in all its different aspects.
It must analyse social processes … not merely past events but also the
probability of events concealed in the future." This task rests entirely on
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social and sociological considerations and has nothing to do with judicial
decision. Is the court fully prepared for it? According to what directives
and rules is the court to decide what to do? According to Barak J., "in this
regard there is something like 'prophecy in the garb of judicial decision"'
… I would suggest that as judges we refrain from acting as prophets. I
would adopt the words of the great Maimonides:
The Holy One Blessed be He did not permit us to learn from the
prophets but from the Sages, men of logic and thought. It is not said
that "thou shalt come unto … the prophet that shall be in those days"
but "unto the priests and the Levites and unto the judge" (Deut. 17:9),
(Introduction to the Commentary on the Mishnah; see Elon, op. cit.,
224-25).
If that is the case with Jewish law, where the Sages recognised and believed
in its superhuman source, it applies all the more so to a legal system based
entirely upon wise men, men of logic and reason, and which is applied by
them. Furthermore, as I have said, the power to disqualify a party list for
social and ideological reasons rests primarily with the Central Elections
Committee which, apart from its chairman, is clearly a political body, the
views of the members of which.. .in their factional variety are oft-repeated
and accepted. We may well fear that these members do not easily lend
themselves to a considered non-partisan examination of this clearly social
and political matter.
What I have said may indicate the abundance of problems and difficulties
that are foremost in considering the disqualification of a party list because
of its political programme. In this respect, the "Kach" list is not a good
example of the actuality of these difficulties, since its programme, the
aim of its leaders and initiators and their seriousness from the viewpoint
of the image of Israeli democracy and culture, is so blatant that, were
we empowered to disqualify lists, we might conclude that its inclusion
among the lists seeking election to the Knesset is not to be allowed.
For myself, the most serious difficulty in the content of the "Kach"
programme – even more than the perverseness of its general outlook
regarding the preservation of the democratic foundations of Israel society
– is that the list and its spokesmen base themselves upon the Torah and
the ha/akhah.
A basic element of Judaism is the idea that man was created in the
image of God ( Gen. 1:27). It is thus that the Torah commences, and
from it the ha/akhah derives fundamental principles regarding the worth
of every human being as such, his equality and the love of him. R. Akiva
used to say, "Beloved is man for he was created in the image of God: a
special love, because it was made known to him that he was so created"
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(M. Avot 3:18). This verse is the basis of the prohibition on the children
of Noah against shedding blood, long before the Torah was given. Most
instructive is the difference of views between two of the greatest of the
Tannaim regarding moral priorities in interhuman relations. " 'And thou
shalt love thy neighbour as thyself' (Lev. 19: 18). R. Akiva said, 'This is
a leading rule of the Torah.' Ben Azai said, 'This is the book of the
generations of Adam. In the day that God created man, in the likeness
of God made He him' (Gen. 5:1) – this is a greater rule" (Sifra to
Kedoshim 4: 10). According to Akiva the supreme virtue in human relations
is the love of man. According to Ben Azai it is the equality of man …. Both
virtues together – equality and love of mankind – became one with
the Jewish people, both together lie at the very foundations of Judaism
at all times and in all ages. This basic viewpoint is further explained. "Ben
Azai says, 'This is the book of the generations of Adam' – that is a leading
principle of the Torah. R. Akiva says, 'Thou shalt love thy neighbour as
thyself – this is a greater principle: 'you may not say that because I
have been shamed, let my neighbour also be shamed along with me.'…. R.
Tanhuma said, 'If you do so, remember whom you are shaming – in the
image of God He created him'" ( Gen. Rabbah 24:7). The rule of loving thy
neighbour as thyself is not merely an inward abstract matter that entails
no obligations; it is a way of life requiring action. In Hillel's formulation
the rule is that you may not do to another that which is hateful to yourself.
Many commentators have pointed out that this negative formulation adds
significance to the rule, suiting it to human nature. "A person cannot
really love another as he loves himself, for as R. Akiva taught, thy own
life takes precedence over the life of another" (Nahmanides to Lev. 19: 18;
see Baba Metzia 62a).
The Jewish people are commanded to fight for their existence and to
pursue those who seek to conspire against them and deprive them of
their sovereignty and of their land. But the enemy, too, possesses human
worth and dignity. When Jehosaphat prevailed over the Ammonites and
Moabites, the people sang, "Give thanks unto the Lord for His mercy
endureth forever" (II Chron. 20:21). On that the Talmud notes:
R. Yohanan said, Why are the words "for He is good" [as in Ps. 107:1]
omitted from this thanksgiving? Because the Holy One, blessed be
He, does not rejoice in the downfall of the wicked. And R. Yohanan
said further, Why is it written "And one came not near the other all
the night?" (Ex. 14:20) The ministering angels wanted to chant their
hymns but the Holy One, blessed be He, said, "The work of My hands
is being drowned in the sea and you chant hymns?" (Megillah 10b).
Barak J. referred to R. Kook on the love of man and creation. R. Kook
adds:
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The love of man should be alive in the heart and the soul – the
love of every person in particular and the love of every nation in
general. One should desire their elevation and their material and spiritual
progress … .lnner love from the depths of one's heart and soul, to do good
to all peoples, to improve their situation, to make their lives happy
(Middot haRe'iyah, Ahavah, 5).
Still more instructive is R. Kook's thinking on the relationship between the
"natural, conventional morality" of every civilized person and the moral
demands of Judaism.
The love of man requires much nurturing to reach its proper dimensions
as against the superficiality that appears at first sight by its insufficient
exercise, from the side of the Torah and from the side of conventional
morality, as though contradictions and equanimity exist in this love,
which needs ever to be provided from the recesses of the soul (Ibid., IO;
see also Orot haKodesh, Vol. 3, 318).
This tending and education of a Jew by the Torah and conventional
morality are complementary and closely interrelated and depend upon
each other…( Orot haKodesh, Vol. 3, Introduction II and 16). To ignore
societal morality derogates from religious morality…
These cardinal concepts have also determined relations with minority
groups under Jewish rule. The Torah justifies a series of fundamental
commandments in Judaism by the historical memory of the Jewish people
and its sufferings as a minority under alien rule. "For ye were strangers
in the land of Egypt" (Ex. 23:9; Lev. 19:30; ibid. 22:20 and 23: and
elsewhere). And beyond that, "Thou shalt not abhor an Egyptian, because
thou wast a stranger in his land" (Deut. 23:8). Racism, which has greatly
blighted human history to this very day, has no place in Judaism; it
has been rejected outright. A member of another nation who attaches
himself to the Jewish people is accepted and acquires all the same rights
and duties. "Ye shall have one statute both for the stranger and for him
that is born in the land" (Num. 9: 14). "Neither let the alien that hath
joined himself to the Lord speak, saying: the Lord will surely separate me
from His people …. For My house shall be called a house of prayer for all
peoples" (ls. 56:3-7)…. Thus Maimonides wrote to R. Ovadyah Ger Tzedek:
Every one who is converted for all time and every one who professes
the unity of the Holy One blessed be He.. .is a disciple of Abraham our
Patriarch and a member of his family … there is no difference between us
and them in any respect. Let not his lineage be lightly treated. If we are
related to Abraham, Isaac and Jacob, you are related to Him who said
"Let the world be created" (Resp. haRambam [Freimann ed.J 369).
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The Jewish people does not "save souls" in order to enlist other peoples
to its ranks (Mic. 4:5; M. T. Melakhim 8: 10). This fact is intended, among
other things, to give expression to the protection which Judaism confers
upon minorities to live according to their own heritage and culture. It was
customary in the ancient – and less ancient – world for the dominant
majority to assimilate minorities, on the principle that cujus regio ejus
religio, under which minorities were compelled to adopt the religion of
the dominant majority. According to the halakhah, this is absolutely
forbidden. Accordingly, in those periods when Jews had the upper hand,
"no bet din received converts throughout the time of David and Solomon;
in the time of David, lest they convert out of fear, and in the time of
Solomon, lest they convert because of the goodness and greatness of the
kingdom" (M. T. lssurei Bi'ah 3: 15).
The halakhah defined members of national minorities as "resident aliens"
(ger toshav), subject only to observance of the seven Noahide laws, the
elementary obligations of maintaining law and order which all civilised
peoples are bidden to observe and which the Sages regarded as universal
natural law (M. T. lssurei Bi'ah 14:7; Sanhedrin 56a; Nahmanides to
Gen. 34:13; see further Elon, op. cit. 183 ff.). A national minority is
entitled to all the civil and political rights that all other residents enjoy.
"As a stranger and a settler shall he live with thee" (Lev. 25:35); "Resident
aliens are treated with the courtesy and kindness extended to a Jew, since
we are ordered to sustain them" (M.T. Melakhim 10:12; M.T. Avodah
Zarah 10:2). The Sages also stated that… resident aliens are not settled in border areas or in unsightly
surroundings but in a well-favoured environment in the middle of the
country… for it is said "he shall dwell with thee, in the midst of thee, in
the place which he shall choose within one of thy gates, where it liketh
him best; thou shall not wrong him"(Gerim 3:4).
The basic guiding principles that inform the Jewish State in its relationship
to all its inhabitants are the basic principles of the halakhah. As Maimonides
said in this context, "It is written 'God is good to all and His mercies extend
to all His deeds' and 'its ways are ways of pleasantness and all its paths
are peace' " (M. T. Melakhim 10: 12).
What I have· said represents only part of the law of the state in Jewish
law on this important theme of minority rights …
Let me conclude with the incisive observations of Maimonides on the
age-long yearning for the Messiah, whose times differ from the present
in respect only of "subjugation to the state" (M. T. Melakhim 12:24-5).
Relying on a statement by Samuel in the Talmud (Sanhedrin 91b, 99a and
elsewhere) he states:
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PART THREE: SOCIAL AND ADMINISTRATIVE REGU LATION
The Sages and the Prophets did not long for the days of the Messiah
in order to rule over the entire world nor to cast down the gentiles
nor hold themselves superior to other peoples nor to eat and drink and
make merry, but in order to have time for Torah and wisdom without
let or hindrance so that they might merit the world to come …. At that
time famine and war will no longer prevail, nor envy and rivalry: the
good will be abundant and delightful things as thick as the sand. The
only concern of the world will be to know the Lord. And therefore
Jewry will be greatly wise, knowing the secret things, and it will attain
understanding of the Creator, "for the earth will be full of the knowledge
of the Lord, as the waters cover the sea" (ls. 11 :9).
Barak J. I have no doubt that the ideas of "Kach" are racist and its
principles offend against the basic principles upon which the democracy of
the State rests. I am also convinced that they are opposed to the spirit and
essence of Judaism in all its variety and form. As Maimonides says (M. T.
Sanhedrin 12:3):
For this reason man was created alone in the world to teach us
that any one who does away with one soul is as if he did away
with the whole world, whilst one who sustains one soul is as if he
sustained the whole world. All mortals are created in the form of
Adam, yet none is like another in appearance. Hence each can say that
the world was created for him.
The same outlook found expression in the words of R . Avraham Yitzhak
Kook (cited from Z. Yaron, The Philosophy of Rav Kook (1974) 306):
The loftiest place in the love of creation must be taken by love of
man, which should also permeate the entire person. Notwithstanding
differences of opinion, religion and belief, and notwithstanding the
divisions of races and environment, it is right and proper to penetrate
into the very depths of the minds of different peoples and groups so as to
learn as far as possible their character and qualities, to know how to base
love of mankind on foundations that bring us close to deeds. Only a soul
rich in the love of mankind can raise the love of the nation to pride in
its nobility, its spiritual and practical greatness. Narrowness of vision
that causes us to regard everything beyond the border of a particular
nation, even if outside the frontiers of Jewry, as thick undergrowth and
unclean, is one of the more terrible black spots that cause the general
destruction of all spiritual goodness to which each refined soul aspires.
If we decided to enable [the list] to participate in the elections, it was
not out of agreement with any part whatsoever of its programme. On the
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contrary, we repeat that its approach is contrary to our basic perceptions
and the general Jewish values on which we build our national structure. So
long, however, as it has not been proved to the satisfaction of the Elections
Committee and of ourselves that the list creates a reasonable possibility of
harm to the existence of the State or its democratic character, we cannot
do other than permit it to participate in the elections.
See: BERGER v. HAIFA DISTRICT PLANNING COMMITTEE
219
et al, p. 174.
Chapter Four
EDUCATION AND WELFARE
1. Duty of Father to Educate His Children
Sp. C. 1/ 81
NAGARv.NAGAR
( 1984) 38(1) P.D. 365, 390-394, 396-397, 402-407
The question here was whether the education of the young children of the parties
came within the jurisdiction of the Rabbinical Court or the District Court. The parties
had agreed in the divorce agreement to the jurisdiction of the former in all matters
concerning the children, and that was not challenged until the wife changed counsel.
It was then submitted that the question lay within the exclusive jurisdiction of the
District Court.
Elon J.: At this point, let us look into the second ground that served
the learned judge as a foundation for concluding that the judgment of
the Rabbinical Court was a nullity and that the District Court had
jurisdiction…. The starting point was that a suit concerning the education
of children is not among those matters left to the concurrent or exclusive
jurisdiction of the Rabbinical Court but rather falls outside matters of
personal status. How did the judge arrive at such an extreme result? The
judge said that according to the Rabbinical Court's judgment The Rabbinical Court did not deal at all with guardianship within the
meaning of the Capacity and Guardianship Law, 1962, but rather with
"the rights of parents" to determine the mode of education, the learning
of Torah or the observance of religious commandments, and these are
not matters of personal status under article 51 of the Order in Council;
and in any case the Rabbinical Court was ab initio without jurisdiction
on the question now before me, and again, neither the parties nor this
court is bound by what occurred in the Rabbinical Court. .. .ln fact,
guardianship of children, as defined in the above law, does not exist in
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CIVIL RIGHTS
contrary, we repeat that its approach is contrary to our basic perceptions
and the general Jewish values on which we build our national structure. So
long, however, as it has not been proved to the satisfaction of the Elections
Committee and of ourselves that the list creates a reasonable possibility of
harm to the existence of the State or its democratic character, we cannot
do other than permit it to participate in the elections.
See: BERGER v. HAIFA DISTRICT PLANNING COMMITTEE et al. p. 174.
219
Chapter Four
EDUCATION AND WELFARE
I. Duty of Father to Educate His Children
Sp.C. 1/ 81
NAGARv.NAGAR
(1984) 38(1) P.D. 36S, 390-394, 396-397, 402-407
The question here was whether the education of the young children of the parties
came within the jurisdiction of the Rabbinical Court or the District Court. The parties
had agreed in the divorce agreement to the jurisdiction of the former in all matters
concerning the children, and that was not challenged until the wife changed counsel.
ft was then submitted that the question lay within the exclusive jurisdiction of the
District Court.
Elon J.: At this point, let us look into the second ground that served
the learned judge as a foundation for concluding that the judgment of
the Rabbinical Court was a nullity and that the District Court had
jurisdiction…. The starting point was that a suit concerning the education
of children is not among those matters left to the concurrent or exclusive
jurisdiction of the Rabbinical Court but rather falls outside matters of
personal status. How did the judge arrive at such an extreme result? The
judge said that according to the Rabbinical Court's judgment The Rabbinical Court did not deal at all with guardianship within the
meaning of the Capacity and Guardianship Law, 1962, but rather with
"the rights of parents" to determine the mode of education, the learning
of Torah or the observance of religious commandments, and these are
not matters of personal status under article 51 of the Order in Council;
and in any case the Rabbinical Court was ab initio without jurisdiction
on the question now before me, and again, neither the parties nor this
court is bound by what occurred in the Rabbinical Court.. .. In fact,
guardianship of children, as defined in the above law, does not exist in
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EDUCATION AND WELFARE
the halakhah. In Jewish law, guardianship can only arise in connection
with property or in regard to fatherless orphans or in the exceptional
case where the father is still alive but has wasted the property of a
minor, i.e. in connection with property but not a person (A. Gulak,
Foundations of Jewish Law, Book III, 146)…. Here we shall confine
ourselves to a limited aspect of guardianship – education and schooling
– that is mentioned separately in sec. 15 of the law and is dealt with in
the case of Florsheim (1968) 22(2) P.D. 723 …. Ultimately, in my opinion,
it will become apparent that we must conclude that the Rabbinical Court
did not deal with this matter as an aspect of guardianship but as one
of parental rights – the father's right under the halakhah to observe
the commandment of teaching Torah. In this regard, the presumption
is that the Rabbinical Court will reflect the halakhic position. The
Rabbinical Court did not deal with or give judgment on a guardianship
matter and ipso facto dealt with a matter over which it had been given
no jurisdiction by the (secular) legislature. Its judgment lacks legal
consequence and the consent given by the parents to its jurisdiction
is meaningless, even if in its operative part it would appear to cover
guardianship.
I cannot accept these observations of the learned judge. With all respect,
he has erred in the essential definition of guardianship of children under
Jewish law and as a result, his conclusion about the difference between
guardianship in the Jewish legal system and its definition in the above law
is mistaken. Nor do I quite understand the distinction the learned judge
drew between guardianship and parental rights. And it is difficult for me to
reconcile his observation that since the study of Torah is a commandment
– indeed a very important commandment that takes precedence over all
others – its observance does not merit inclusion among the matters of
guardianship enumerated in sec. 15 of the Law.
The learned judge bases his contention, that the guardianship of parents
in Jewish law pertains only to the property of a minor and not to his
person, education and schooling, unlike the definition in sec. 15 which
covers both person and property, upon Gulak as cited above and upon dicta
in Florsheim where it is stated that guardianship covers a minor's property
alone. This, however, is not quite accurate. Both of these sources … deal
with the appointment of a person as guardian of a minor who is not his
own child ….Sec. 15 of the Law under discussion deals with the tasks of
parents as the natural guardians of their minor children (see sec. 14). No
one will dispute that under Jewish law the natural guardianship of parents
includes the responsibility for both person and property of such children,
as specified in sec. 15. The duty and right of parents to attend to the
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PART THREE: SOCIAL AND ADMINISTRATIVE REGULATION
education and schooling of their children, in the broad sense of those terms,
are clear; provisions in this regard are to be found in both Scripture and
talmudic and later halakhic literature … .I shall mention a few of these.
In Kiddushin 29a we read:
The Rabbis taught: a father is bound to circumcise his son, to redeem
him [if a, firstborn], to teach him Torah, to take a wife for him and
to teach him a craft. Some say, also to teach him to swim. R. Yehudah
said, a person who does not teach his son a craft teaches him brigandage.
Do you really think 'brigandage'? Rather, it is as though he teaches him
brigandage (ibid, 30b). (Since he has no occupation to support him, the
son will take to robbery; Rashi ad Zoe.]
According to R. Yehudah the duty is to teach a craft, an occupation, and
not some other source of livelihood such as business which is precarious
(Kiddushin 30b and Rashi ad loc.). The Tosefta (Kiddushin 1:1)… and the
Mekhilta, Bo, 8:73 … make further observations in praise of teaching a craft.
In talmudic literature these obligations are deduced from different verses
of Scripture, either directly or interpretatively (see Y. Kiddushin I:7 and
Kiddushin 29b ff.).
These obligations and duties, including care of a child's property and
his custody, are based on the parents' standing as the guardians of
their children. It is settled law that parents do not possess any rights in
their children and that if differences arise between them regarding any
of their obligations, it is not a matter of a dispute between litigants
with vested rights (see, e.g., Resp. Rashdam, Orah Hayim 123; Resp.
Mishpetei Uziel, Even haEzer 91). In the parent-child relationship, the
idea of "belonging" means a belonging by nature, conception and birth
and this natural belonging creates a natural guardianship comprising duties
and rights for the guardian vis-a-vis those under his wardship. Although
a father is commanded to educate his child and teach him a craft, that
has nothing to do with any parental right, in the sense of a property right
in law … The right of a parent in respect of education and other matters
of guardianship is a right to carry out one's duty as a guardian. This
court has already said that "it is illuminating that originally in Jewish law
the idea of 'possessing' a child, as one usually speaks of possessing some
property, was not common, but the usual phrase … was that the child 'was
found' with his parents or 'was brought' up by his parents and the like"
(C.A. 488/77 A. v. Attorney-General (1978) 32(3) P.D. 421).
Hence, the exercise of these parental "rights" is subject to the child's
welfare, which is the dominant principle that informs the entire subject of
the parent-child relationship in Jewish law. This principle already appears
in a responsum of Sherira Gaon in the tenth century (see Otzar haGeonim,
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EDUCATION AND WELFARE
Ketubot 434, 173; and also E. Schochetman in 5 Jewish Law Annual (1978)
285, 292), and it is a constant feature in the responsa literature and codes
(see, e.g. Resp. Rashba attributed to Nahmanides 38; Resp. Radbaz 1:123;
Resp. Mabit 2:62; Even haEzer 82:7; Pithei Teshuvah Even haEzer 82:7).
The terminology of guardianship in describing the powers and obligations
of parents vis-a-vis their children is found in decisions of the Rabbinical
Court and the halakhic authorities (see Sha'arei Uziel, Part I, 126). The
matter is summed up by R. E. Goldschmidt, a member of the Supreme
Rabbinical Court, as follows:
There is no doubt that according to law the child himself is always the
litigant and the parents are only guardians who represent him in court
and speak on his behalf. Not only are they not parties, but l doubt
whether they have the status of "interested persons", since an "interested
person" in a trial means that his "interest" affects the hearing and the
judgment. In the maintenance of children, however, not only is their
welfare the main consideration (see Everley, Law of Domestic Relations,
334): according to Jewish law, it is the sole and exclusive consideration,
and every other consideration which concerns the parents or one of
them will not be taken into account and will have no effect as against
the child's welfare… The reason is that the law regarding the maintenance
of children is not for the benefit of the parents but for the benefit of the
child. A son or daughter is not an "object" of the rights of either parent.
Neither parent possesses any rights, but only duties binding them to raise
and educate the child. When the court comes to decide the position of the
child in a matter of access, one consideration alone is in its mind – for
the well-being of the child, with whom should it be, and in what manner:
as regards parental rights, these do not exist.
Thus we see that in Jewish law, the powers and functions of parents towards
their children are those of guardians. The provisions of sec. 15 of the Law
in all its details cannot be said to be non-existent in the halakhah; on
the contrary, they are in total conformity with and embedded in Jewish
law…
As l have said, the powers and functions of natural guardians under sec.
15 are at one with the powers and functions of parents over their children
under Jewish law. We may add that the same applies to any one appointed
as guardian over a child not his own. According to Jewish law, he has to
look after the child's property as well as educate and school him…. The
matter is expressly covered in Talmudic literature (T. Terumot 1:10; T.
Baba Batra 8: 14; Gittin 52a). The settled law is that a guardian "makes
a lulav (palm branch) and sukah (tabernacle) and fringes, a shofar (ram's
horn), a scroll of the Torah, tefillin (phylacteries), mezuzot (scrolls attached
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PART THREE: SOCIAL AND ADMINISTRATIVE REGULATION
to doorposts, and a megila (Scroll of Esther) for minors in order to educate
them" (M.T. Nahalot 11:9; Hoshen Mishpat 290:15).
The central idea of Jewish law in regard to guardianship of children is
based upon the rule that "the court is the parent of orphans" (Gittin 37a;
Baba Kamma 37a). This rule applies to all children, not necessarily orphans
(Resp. Radbaz Part I, 263; Sha'arei Uziel Part I, 126). The parents and every
person who is appointed guardian are, as it were, the court's representatives,
acting in accordance with its directions as regards both the personal welfare
of the minor and his property and possessions, according to the overriding principle of the child's well-being. The matter is summarised in
Sha'arei Uziel Part I in the following manner:
This is the essential foundation of guardianship among Jews, that it
rests with the judges and the courts. The guardianship of the court
continues the guardianship of the parents … they have the duty to care
for the spiritual and physical well-being of their children, their learning
and education, their induction into the commandments, good behaviour
and fear of Heaven (Preface, 8).
Hence in the event of divorce or upon a child losing a parent, the
court will deem that the best place for rearing the child and ensuring his
religious and moral upbringing is with one of the parents, or sometimes
with another person. More than being under obligation to take care of
his material possessions, the court must look after his body and soul
so that he does not weaken and pursue evil ways, but remains healthy
and grows up in a good and upright manner in the eyes of God and
man, faithful to the Torah of God and his people (p. 4).
The guardians of orphans, whether they are appointed by their father
or by the Court, are commanded to teach the young orphans Torah in
public schools, or to hire special teachers for this purpose from the estate
of their father or grandfather, for this obligation falls on the parents
and guardians, or a Court-appointed guardian after them, to fulfil
with their life and their money. Therefore we tax their property in
their lifetimes and obligate the guardian to recover from the testator's
property as much as he can for all that is needed … it is obligatory to
ensure that the orphans under their guardianship shall also learn the
rudiments of arithmetic and other basic practical skills so that when
they grow up they should be respected amongst their friends and they
should know to conduct negotiations wisely and intelligently (p.173-174;
and see: B. Schereschewsky, Family Law (Published by the Faculty of
Law of the Hebrew University, 2nd ed., 1970) 413).
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EDUCATION AND WELFARE
This, in brief, is the doctrine of guardianship of minors in Jewish law, both
with respect to natural guardians and to appointed guardians…
… The unequivocal holding of the Rabbinical Court that the father has
the duty to educate his children and hence that he alone is entitled to
determine the form of education, would not, in my humble opinion, hold
on appeal to the Supreme Rabbinical Court…. Not only is it contrary to
the statutory provisions of the Women's Equal Rights Law regarding the
equality of mother and father in guardianship, which means that they
have an equal right to their opinion as to the manner of educating their
children, but it also seems to be out of line with the general trend in this
area in modern halakhah.
According to several early authorities, R. Y ohanan and Resh Lakish
disputed whether teaching a child the commandments was the duty of the
father alone or also that of the mother (Nazir 28b; Me'iri, Bet haBehira
Nazir 28b; Rashi to Hagiga 2a; Tosefot to Eruvin 82a). The matter was also
in dispute among the later authorities (see A. Danzig, Hayei Adam 66:2;
Y. Etlinger, Arukh laNer, Succah 2:2; Y. Girondi, lggeret Teshuvah 72; Y.
Horovitz, Shnei Luhot haBrit, Derekh Eretz; and cf. Prov. 1:8).
The right and duty to educate children is central to the question of
the maintenance of children. According to the halakhah, in addition to
study of the Torah, education in relation to custody includes the learning
of a craft…and primarily the fashioning of the child's character. The
Sages thus explained the assumption that a girl is best with the mother
and a boy, after the age of six, with the father: "Just as the mother
will teach the daughter a girl's way, so the father will teach the son
what he ought to know" (Rabbenu Yeruham, To/dot Adam veHavah,
Sefer Havah 23:3; Resp. Rashba attributed to Nahmanides 38; Resp.
Radbaz Part I, 429). The Supreme Rabbinical Court has accordingly held
that the distinction regarding custody of a boy over the age of six pertains
even when the parents are not observant Jews …. Moreover, with respect
to the son's education, "the father can teach the son what he is obligated
to teach him, even if the child is not with him, e.g. he can hire a tutor
or can put the child into apprenticeship" (see R. Yitzhak di Molina, 16th
century ms. printed by A. David 44 Kiryat Sefer (1969) 557 and cited by
Schochetman, op. cit., 301-2). This has special significance at present, when
the education of children, in all its forms and branches, is undertaken by a
wide network of educational institutions. The Supreme Rabbinical Court
thus held as follows in the context of the said distinction:
But as for a son who studies Torah, Maimonides wrote that…the
melamed [tutor] teaches him all day long and part of the night, in order
to educate him to study both during the day and at night…and if so, the
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PART THREE: SOCIAL AND ADMINISTRATIVE REGULATION
father is left with no time to teach him, but he will only be with him
in order to eat and sleep, and in this it must be said that the father is
not preferable to the mother (as per R. Shapira; and see Resp. Yaskil
Avdi, Part II, Even haEzer 2; Resp. Mishpetei Uziel, Even haEzer 91).
Although the above was said in the context of the right of custody, it
has important ramifications for the question of preferring the father in
determining the form of education; because the father does not teach the
son personally, but rather, he is taught by the school-teachers and his
rabbis, it is reasonable to assume that these act as the agents of both
parents and with their consent.
This conclusion is dictated by the logic of the situation today and the
law as laid down by the later authorities on the basis of the teaching of the
Talmudic rabbis, mentioned above, that the father is obliged to inculcate
Torah whilst the mother is exempt from this obligation (Kiddushin 29a-b):
How do we know that the father must teach the child Torah? Because
it is said: "And ye shall teach them to your sons" (Deut. 11:19)…. How
do we know that the mother has no such duty? Because it is
written "velimaddetem" ["and ye shall teach'] which may also be read
"ulemadetem" ["ye shall study'1- Whoever is commanded to study is
commanded to teach. But how do we know that the mother is not
bound to study herself? Because it is written: … the one whom others
are commanded to teach is commanded to teach himself, and the one
whom others are not commanded to teach is not commanded to teach
himself. But how do we know that others are not commanded to teach
the mother? Because it is written "And ye shall teach them to your sons"
but not to your daughters.
Maimonides sums up the law as follows:
Women are exempt from the study of the Torah. A father is obliged to
teach his minor son the Torah … not the mother, because he who must
learn must teach (M.T Talmud Torah 1:1).
On this threefold exemption – the mother from teaching her son and
from learning herself, and the father from teaching his daughter – various
opinions were voiced even in tannaitic times. Ben Azai declared that a
man is obliged to teach his daughter Torah, whereas R . Eliezer said
that "whoever teaches his daughter Torah teaches her licentiousness" (M.
Sotah 3:4). The reasons for this difference of opinion and the extreme
remark of R. Eliezer have been variously explained, but this is not the
occasion to go into the matter (see the commentaries ad foe. and Sotah 21b;
M.T. Talmud Torah 1:13; Yoreh De'ah 246:6; Torah Temimah (48) to
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EDUCATION AND WELFARE
Deut. I I; see also Y. Sotah 3:4). Various Talmudic and post-Talmudic
sources do indeed speak in praise of wise women, preachers and scholars
(see e.g. T. Ke/im, Baba Kamma 4: 17; T. Ke/im, Baba Metzia 1:6; Baba
Batra 119b; Sivuv haRav Petahia miRegensburg 3:2; Tashbetz 3:16; Resp.
Maharshal 29). The final rule was decided in accordance with the views of
R. Eliezer (see M. T. Talmud Torah 1:13; Yoreh De'ah 246:6). In the course
of time the prohibition against a man teaching his daughter underwent
restrictive amendment as regards both the nature and scope of the subject
matter – as well as the depth of study (see A. Elinson, The Woman and the
Commandments, 147, 153-57; Y.Y. Neuwirt, The Education of Children to
Observe the Commandments, 308-10).
A substantive halakhic .and practical change in this area has occurred
in recent times,. commensurate with the profound social and ideological
modifications that have taken place. Various reasons have been given for
this by halakhic scholars …. Thus Hafetz Hayim, referring to R. Eliezer's
prohibition of teaching girls Torah, has written (Likutei Halakhot she/
haHafetz Hayim, Sotah 21; see also Resp. Hafetz Baim dated 8 Shevat
5693, cited in Y. Greenbaum, "The Religious Education of Girls in Israel,"
in Shevilei haHinnukh, 24, 35):
It seems that all this actually obtained in past times …. The tradition of our
forbears was very strong to induce people to follow in its path….Today,
however, when that tradition has become very much weaker… and
especially among those who have grown to study foreign writings, it
has certainly become an important mitzvah [religious obligation] to
teach (girls) the Pentateuch, the Prophets and the Writings and halakhic
ethics.
The decisions on this matter took various directions in this country both
before and after the foundation of the State. R. Zalman Sorotzkin, a
leading figure in the world of the Yeshivah (Talmudic Academy), has held
(Moznayim leMishpat, 42; and see Elinson, op. cit. 158 ff.; Kapah, Woman
and Her Education, 31 ):
The prohibition not to teach girls Torah applied only to the Oral
Law, its close study and dialectics …. The final conclusions, without its
argumentations, might, however, be studied by women…. Today the
situation is different from what it was in earlier times. Then Jewish homes
were conducted according to the Shu/han Arukh and it was possible
to learn the entire Torah from experience …. Today, however…not only
may girls be taught Torah and piety but it is obligatory, and…it is
a great mitzvah [religious obligation] to set up schools for girls to
inculcate in them purity of faith and knowledge of the Torah and
the Commandments.
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Rabbinical decision – like all judicial decision – is characterized by not
cutting itself off from existing halakhah but rather, qualifying it. The
prohibition against teaching girls has been limited to the close study and
dialectics of the halakhah. Among a considerable number of halakhic
scholars of today we no longer find this limitation. One scholar has
pronounced unequivocally that present times are marked by an intense
desire of men and women to eat of the Tree of Knowledge, and no one can
stem the tide. To prevent girls from learning Torah and Judaism in all its
aspects can hardly be contemplated (B. Firrer in Noam Ill, 134).
To sum up: as we have seen, according to the ha/akhah the father must
teach his son Torah, whilst the mother is exempt, just as a man must
himself learn and a woman is under no such obligation, according to
the principle that whoever is bound to learn is also bound to teach. In
view of the substantial changes that have occurred, not only is a woman
not forbidden at present to learn Torah: she is obliged to do so; not only
does she herself learn but she teaches the children of others. It would seem
to follow necessarily that the duty to teach-a son Torah should fall equally
upon the father and the mother.. .. That is all the more applicable when
what is involved is expressing a view about which school a son should be
sent to in order to be educated. I would suggest that had the Supreme
Rabbinical Court been asked to deal with the duty of educating children,
both boys and girls, and bringing them up, it would have concluded that
the rights and duties of the parents are joint, subject of course to the
special rearing that a father can give to a son and a mother to a daughter
by reason of their understanding of and identification with children of their
own sex.
2. Communal Responsibility for Education
H.C. 1/ 67
MASHl'EL et al. v. MINISTER OF EDUCATION AND CULTURE et al.
(1967) 21(1) P.D. 384, 387
The respondents denied the application of the petitioners to vary a directive given
by the headmaster of a state school regarding the transfer of their children from
a mixed school to another [single sex school] The reason for the directive was a
decision of the Ministry of Education to terminate the mixed education of boys and
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EDUCATION AND WELFARE
girls, because parents of minority groups were dissatisfied with such mixed education,
particularly in the higher classes. They had therefore removed their daughters from
school before finishing their studies, with the result that there was a considerable
drop in the number of children at the school in question. The petitioners, who were
in favour of mixed classes, pleaded that any transfer of their daughters would be
contrary to their feelings on the matter; and that the school to which the girls had been
transferred was very far from their homes and involved crossing a main road with all the
consequent dangers. Furthermore, they argued that the respondents had no authority to
transfer the children, the right to do so resting with the local authority. The respondents
maintained that the petitioners had no right to demand that their daughters attend any
particular school.
Kister J.: The rights of the citizen to require of the State that his child
should receive education in a public school and to express his view as
to which school his child is to be educated at, or at least against any
transfer from the school he was attending, depend on an assortment of
laws that deal with the duty of the public and the rights of the citizen
with respect to educational matters.
The Jewish people recognized the duty of parents to educate their children,
and particularly of the father to teach his son Torah as well as the duty of
the public to set up schools for children from the age of 6 or 7. Regarding
the duty of the public, the Gemara tells us that it was originally decreed
that teachers of young children should be appointed in Jerusalem and
then in each region, but one of the shortcomings of this arrangement was
that children who incurred the displeasure of their teachers would rebel
and leave. Finally Yehoshua ben Gamla, who lived during the reign of
King Janai, instituted schools in each town and improved their internal
regulation. The same Talmudic passage deals inter alia with the conditions
under which children may be moved from one town or even neighbourhood
to another, especially where a river ran between them (Baba Batra 21a;
M. T. Talmud Torah 2: I, 2, 5, 6; Yoreh De 'ah 245).
It follows that among Jews a parent had the right to demand proper
education for his young children and the public authorities were under an
obligation to make suitable arrangements.
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PART THREE: SOCIAL AND ADMINISTRATIVE REGULATION
C.A. 343/68
ASSESSMENT OFFICER – TEL AVIV v. BAT YAM MUNICIPALITY
(1969) 23(1) P.D. 186, 191
According to the appellant, a reduction given by the municipality to its employees in
respect of school fees at the local secondary schools was of the nature of ''any other
allowance" within the meaning of sec. 2(2) of the Income Tax Ordinance and was
therefore taxable.
Kister J.: The common element of the three instances noted in sec.
2(2) of the Ordinance – quarters, board and residence – is that they
constitute a benefit for the employee involving expenses to the employer.
The municipality set up a network of secondary schools for the general
population and not especially for the children of its employees. Since
"a lamp for one is a lamp for a hundred" (Shabbat 122a), the benefit
enjoyed by the municipal employees does not entail any diminution of
the municipality's funds, since an increase in the number of pupils will
not necessarily involve additional expense for maintenance, especially as
these children are not educated gratis but pay school fees at a lower rate
than the local inhabitants who do not enjoy any reduction.
This principle is doubly correct if we take notice of the fact that
this is not a matter of providing the inhabitants with some product
or commodity at a lower price, but rather giving a service which the
municipality is empowered to give to its inhabitants by virtue of sec.
249(29) of the Mandatory Municipal Ordinance (New Version). It is true
that the Ordinance does not impose on the municipality a duty to supply
this service to the local inhabitants but Jewish tradition has regarded it as
an obligation falling upon the general population from time immemorial,
or at least from the time of the Second Temple, as R. Yehoshua ben
Gamla, a high priest of those days, ordained that "teachers of young
children should be appointed to every province and in every town" (Baba
Batra 21a). It is this ordinance that forms the basis for the rule of law laid
down by Maimonides, M. T Talmud Torah 2:1, and in Yoreh De'ah 245:7.
The duty to finance education, it was also prescribed, was to be borne
by the general inhabitants of the town and not only by the parents of
the pupils: see the observations of Rabbenu Yeruham, cited in Darkhe
Mosheh to Tur, Hoshen Mishpat 163:1, and the glosses of Rema to Hoshen
Mishpat 3.
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EDUCATION AND WELFARE
3. Parental Discipline
H.C. 425/68
MASKIL L'EITAN, A MINOR v. MASKIL L'EITAN
(1969) 23(1) P.D. 309, 321
The Rabbinical Court was convinced that the atmosphere prevailing in the house
of the child's mother, who was divorced from his father, had a bad effect on the
child's relationship with his father, and it therefore ordered that the child be placed in
an institution. The ruling was not carried out. The appellant's claim for maintenance
against his father was dismissed.
Kister J.: When, according to the applicable regulation, the father is exempt
from maintaining his child in circumstances such as these, it does not mean
that the child is fated to starve because he does not submit to his father's
wish that he live with him; rather, whoever has custody of the child
maintains him, and the father is not obliged- neither vis-a-vis the child
nor vis-a-vis whoever has custody- to reimburse the expenses, and he is
certainly not obliged to accept this state of affairs and pay the expenses in
advance.
Indeed, as long as the appellant remains with his mother, and
she is able to support him, there is no problem from the appellant's point
of view, for it is immaterial to him from whom he receives his maintenance.
A problem will arise only if the appellant's mother is not able to support
him and he suffers from want when he is with her.
However, even should the child be suffering from want, we would come
back to the question of whether the father could argue that even under the
laws of charity, he is not obliged to make up the shortfall in the child's
maintenance, when he is prepared to support the child in his own home
or in an institution designated by the Rabbinical Court; in the case before
us, taking into consideration the child's age and the other circumstances
that are known to us .. .it would not be just, from the point of view of
the laws of the Torah, if the father were to deny responsibility for the
child when the child does not submit to him. The father is not entitled
to say, "If my son behaves in the way he does, he will starve, and it is not
my business if he does starve."
It is true that if a child of the appellant's age behaves improperly or
refuses to study, his father is entitled to punish him in order to force him to
study and behave properly, but parents have been warned against adopting
overly harsh disciplinary measures. One of the rules is that discipline should
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PART THREE: SOCIAL AND ADMINISTRATIVE REGULATION
always be tempered with affection, and a child should never be totally
rejected. The respondent himself discovered that undue force cannot be
used to place the child in an institution. Is it easier to influence him by
allowing him to suffer from want?
R. Schneuer Zalman of Ladi, in his Shulhan Arukh, Hilkhot Talmud
Torah I :6, warned the father "not to be too heavy-handed with punishment
and censure." Moreover, the question of disciplining a child by depriving
him of food was discussed by the commentators of the Talmud with
respect to a child who refuses to study Torah. In Ketubot 50a, we find:
"In Usha it was ordained that a man must bear with his son until he
is twelve years [of age]. From that age onwards he may threaten his
life."
4. Physical Injury to Children by Parents and Teachers
See: RASSI v. ATTORNEY GENERAL. Part 6, Penal Law, p. 462.
5. Raising of Public Funds for Charity
!'. 354/64
ADMINISTRATOR GENERAL RE THE ESTATE OF NEHAMA HOFMAN dcd.
(1965) 46 f'.M. 30S, 311-312, ll3-3l4
On the death ofNehama Hofman, no heir applied to court and the Administrator General
was appointed administrator of her estate. Subsequently the Tel Aviv Municipality
applied for payment of a sum of money for the assistance the deceased had unlawfully
received during her lifetime for hospitalisation in various hospitals, medical treatment
and convalescence. The deceased left a sum slightly larger than that demanded. The
Administrator General applied to the Court for directions.
Kister J.: With regard to Jewish law, the following remarks from Resp.
Rosh 85:2 are equally applicable to every legal system:
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EDUCATION AND WELFARE
It is a well-known custom that when a person falls ill and cannot fend
for himself his relatives try to provide medical treatment. In the case of a
sick person who is, as you have written, sometimes lucid and sometimes
demented, his relatives must all the more look after his affairs. Indeed
no person who busies himself with the medical care of another even
without being asked by the latter should lose otit, because it is a matter
of saving life and all who are zealous about that are worthy of praise.
As long as the State or other public authority has not undertaken to
provide free medical assistance to every citizen, be he poor or rich, or in
respect of certain illnesses, this principle must be followed in every public
hospital as it is in a private hospital or other private institution, regarding
those illnesses in respect of which the State has not undertaken to provide
free medical treatment to the entire population. Thus every institution
which supplies such treatment is entitled to proper payment or payment
according to the usual tariff in that institution …
The question is, what are sufficient means so as to render a person
ineligible for assistance?
In Jewish law it is the duty of an individual to give charity to the needy,
and it is the duty of the public to maintain institutions (soup kitchens,
charity funds and the like) for collecting money from the local citizens and
giving charity to those requiring help. In the Mishnah and later codes,
tests were prescribed according to property owned and a person's financial
means, for deciding when one is entitled to charity and benefits from these
public institutions or to receive the special biblical allocations to the poor
(gleanings, the forgotten sheaf and the poor man's tithe) or charitable
contributions from relatives. The rates prescribed applied to those times,
having regard to the organisation of public charity then existing and the
purchasing power of money; today the matter is governed by present
day conditions (see the commentators on Yoreh De'ah, 253).
Because in the course of time changes have occurred in the organisation
of public charity, the purchasing power of money, the standard of living
and so on, modern authorities do not follow the detailed provisions of
the Mishnah, Maimonides or Shu/khan Arukh; likewise they do not seek
to convert the amount of the prescribed fifty or two hundred zuzim into
modern currency, but impose tests in the light of the foundations and
principles laid down in the Talmud and the other authorities.
The Mishnah, in Pe'ah 8, Maimonides, M. T. Matanot Aniyim 9, and
Tur and Shu/han Arukh, Yoreh De 'ah, 253 and 256 describe the organisation
of charity and, in the light of that, the means tests for persons in need.
According to the halakhic sources, in every area there was a tamhui which
made daily distributions of food to the poor, a charity fund which distributed
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weekly what the poor required, a permanent office of charity wardens who
collected funds from the public compulsorily and distributed these funds
for charity, and there were also institutions which provided in secret for
those who were ashamed to ask for assistance, or which obtained money
privately from friends and relatives for this purpose.
With regard to the tamhui and the normal charity funds, rates of
distribution were prescribed and any one who had enough to sustain
himself for the week would not receive anything. So that the poor should
not suffer deprivation, the persons generally entitled to receive charity,
even in private, were determined, and to this end a sum of two hundred
zuzim was fixed for those who were not in business. The commentators
of the Mishnah and of the early authorities reached the conclusion that
this sum was sufficient for keeping oneself for a year, and anyone who
had the sum in cash or in land which he could sell for not Jess and which
was free of debt or incumbrance was not to receive charity; obviously no
one was required to sell his dwelling and the tools of his trade which
were not deemed luxuries. In Resp. Hatam Sofer, Yoreh De'ah 239 rules
are laid down as to who is entitled to receive support from the money
collected from philanthropists for the resettlement of those whose village
had been burnt…: in view of the considerations found in the Talmud and
the authorities, Hatam Sofer prescribed the minimum that workers or those
who cannot work should possess in order to determine whether they were
to receive anything from the funds set aside for resettling persons whose
homes or part of their possessions had gone up in flames.
6. Entitlement of Property Owners to Charity
MAFN (T.A.) 72/60
COHEN v. COHEN et al.
(1961) 28 P.M. l06, 107, 110-11
In an action for maintenance brought by a father against his three sons, the f other
claimed that he was sick and aged and unable to work and that he had no source
of income apart from the IL. 40 a month he received from National Insurance. The
defendants argued that the father supported himself by collecting alms, and owned
a share in two plots of land worth about IL. 700 in addition to the place where
234
EDUCATION AND WELFARE
he lived. The Court ordered the sons to support the father and permitted them to
attach his share in the two plots of land in order to secure repayment of their
contribution to his support to be determined here.
Kister J.: I can, it seems, be assisted by the sources of Jewish law where
the problem is one of Family law (personal status), for where the law is
not explicit, the laws governing a person's personal status are to be followed.
In addition … the law is largely based on Jewish law and inquiry into that
law can certainly be of much help in solving the problems. According to
the sources of Jewish law, a distinction must be made between the place
where the plaintiff dwells and his share in the plots.
The rule is that where a person owns property which he cannot sell
immediately he must be regarded as in need of charity and he may claim
support. Moreover, Rabbenu Yeruham bar Meshulam of Provence writes
in his To/dot Adam veHavah, Part 1, 19:
A person who was poor and took charity is not required to repay when
he becomes rich ….This is so not only when he obtained assistance from
a charity fund but also when a generous person gave him enough to
keep him. However, if he had assets or land, even under the control
of another, he must repay upon being sued, except in the case of an
orphan.
This rule is given as the halakhah by Beer Hetev to Yoreh De'ah 253:6.
It may be noted that there is room for doubt, in view of the small value
of the share in the plots, that possibly he might be deemed not to be
in need, but since plaintiff's counsel informed us that he was prepared
to transfer the plots to the defendants, no problem arises in this respect.
Nevertheless I do not think it right to render the maintenance conditional
upon the transfer of the plots to the defendants, for I am apprehensive
that they will not provide the support granted by the judgment and they
would then be undeservedly reimbursed. I prefer to order that as soon as
they begin to pay maintenance they may ask for an attachment to be
placed on the plaintiff's share in the said plots to reimburse themselves
for the payments they will make under the judgment. It is possible that they
will sell them at some future date, possibly at a higher price.
The situation is different with regard to the place where the father lives.
In the Jewish laws of charity, the rule is that when a person is needful of
charity his dwelling place is generally not sold.
See: ADMINISTRATOR GENERAL RE THE ESTATE OF NEHAMA HOFMAN dcd., p. 2 32.
235
PART THREE: SOCIAL AND ADMINISTRATIVE REGULATION
7. Obligation of Charity Towards One Who is Not Careful With Funds
Cr.A. 480/70
DESSLER v. STATE OF ISRAEL
(1971) 25(1) l'.D. 732, 741
The District Court convicted the appellant on forty-three counts offraud in aggravated
circumstances under sec. 2 of the Penal Law Amendment (Deceit, Blackmail and
Extortion) Law, 1963. The appellant received various amounts of money from the
forty-three complainants as deposits on various work contracts. The appeal turned on
the conviction itself and on the severity of sentence.
Kister J.: Those who suffered most were those workers who started work and
gave deposits close to the time that the appellant's business collapsed …. At
such a time, a reasonable person would have had to understand that he
could not continue the business, and at least, not in the way in which the
appellant continued. Indeed, there seems to be a disease amongst many
people whose businesses run into difficulty, that instead of putting an end
to speculation and seeking a settlement with their creditors or asking to
be declared bankrupt, they continue as before and still think to be saved by
means of deception and other unlawful acts, and they sink deeper into the
morass of ever-increasing debt to the point where their economic situation
is irredeemable. It is surely dishonest to go into debt when one sees that
his business is on the verge of collapse, without notifying the lender of
his situation.
Under the laws of charity, one is commanded to lend to such a person,
as it is written, "And if thy brother be waxen poor, and his means fall
with thee, then thou shalt uphold him; as a stranger and a settler he
shall live with thee" (Lev. 25:35); but to what does this refer? It refers to
a case in which the person in need does not conceal his true situation,
and he has a plan for recovery by means of the loan: then we are
commanded to support him and not to allow him to go under. However,
there is no such moral obligation in a case in which the borrower is not
careful with the money of others. Neither is there any justification for
a person to use deception, to say that he is looking for workers, and to
require loans of the candidates at a time when there are at least grave
doubts as to whether with their help, he can redeem his business and
embark on "the King's Way" (see Hafetz Hayim in the name of Ahavat
Hesed, pt. I, I :9, and pt. 2, 2 I and 24).
236
Chapter Five
TAXES
1. Poll Tax – Uniformity
H.C. 34/ 50
ASNIN et al. v. AFULA LOCAL COUNCIL et al.
(1950) 4 P.D. 898,901,906
This petition involved the opposition of the petitioners to a graduated poll tax imposed
by the local council.
Cheshin J.: I have already suggested above that the very idea of a "poll
tax", taken literally, suggests a tax determined not on the basis of a person's
annual income or his property in general, but one imposed per capita,
uniformly on all persons in the sense of "the rich shall not give more
and the poor shall not give less" (Ex. 30:15). Examples may be found
in the early history of the Jews, i.e. the half shekel which was imposed
in the desert on every male aged 20 years or more and the third of a
shekel which those who returned from Babylon in the days of Nehemiah
undertook to pay yearly (Nehemiah 10:33-34). This tax is called a poll tax,
and it is also known as a capitation tax or head money.
237
PART THREE: SOCIAL AND ADMINISTRATIVE REGULATION
2. Assessment
H.C. 14/ 66
ULAMEI HANESl'IM LTD. v. MUNICIPALITY OF TEL AVIV eta/.
(1966) 20(1) P.D. 658, 666-667
The petitioner sought a declaral ion that it was not an "institution" within the meaning
of the Local Authorities (Welfare and Recreation Charge) Law, 1959 and a local
by-law made thereunder, and that a cerlain notice from the Mayor was ultra vires and
a nullity.
Kister J.; I should note here that the problem of what is to be preferred as
a basis for levying taxes – an assessment or a detailed return which the
taxpayer is bound to make or at least a sworn statement as to income – is
not at all a new one, as may be gathered from Dr. Y. Bazak's Tax Law
in the Jewish Sources (1964). Thus we find that Isserlein in his Resp.
Terumet haDeshen, 343, is critical of the assessment method:
All such assessments are based on a surmise of how most people generally
act. Although we are able to discern and establish how most people
habitually proceed, estimations of poverty and wealth do not rest on
that; some are enriched without any one else knowing and some are
greatly impoverished, all depending on how people look at the matter.
There are people who conceal their property in order not to have to
declare it under oath. Accordingly it is impossible to arrive at an accurate
assessment at all.
At the same time, we find that the system of "declarations" and the
obligation to make detailed returns cannot always prevail, since part
of the public claim that it causes them harm. See Resp. Ribash, 461.
Although Noda biYehudah (ed. Tanina, Hoshen Mishpat 40) is aware of
the deficiencies of the assessment method and says that if the assessee
himself knows that he owns more than he has been assessed he must make
up the difference, he does not favour the method of a sworn statement
or social ostracization since experience shows that these are frequently
unsuccessful. ..
Throughout the ages, the leaders of the community and the halakhic
authorities battled by means of criticism and moral persuasion against
those who evaded tax. An example is found in Resp. Rashdam, Hoshen
Mishpat 442, where it is stated that a person who relieves himself from
238
TAXES
paying his taxes and thus increases the tax burden of others is guilty
of robbery and is disqualified from acting as a witness; but no proven
way was found to obviate such evasion. Hence where the public had
decided upon an assessment method, the method was followed; where
tax was determined by means of the "declaration" system, returns were
made to the public authorities with due measures being taken to ensure
secrecy.
The same complexities persist today and we can only decide according
to what the legislature has prescribed in respect of each form of taxation.
3. Double Taxation
See: BANK LEUMI TRUST COMPANY LTD. V. DIRECTOR EST ATE DUTY. Pan 12, Interpretation,
p. 851.
4. Evasion of Tax
See:
VADIY AH
See:
MEFI LTD. v. ASSESSMENT OFFICER,
V.
DIRECTOR, LAND AP PRE CIA TION TAX,
Part 2, General Principles, p.
Part 2, General Principles, p. 115.
239
114.
Part Four
REGULATION OF THE COURTS
CONTENTS
Chapter One: THE JUDICIAL SYSTEM
A. Appointment of Judges
1.
2.
3.
4.
Criteria for Appointment
Qualifications of a Dayan (Religious Court Judge)
Worldliness
Judicial Qualifications
247
250
251
252
B. Disqualification of Judges
1. Self-Interest
2. Judicial Animosity
3. Greeting a Litigant
253
255
256
C. Judicial Functions and Obligations
I. Judicial Law-Making
2. Duty to Give Judgment
3. Duty to Argue for a Litigant Unable to Do So
Himself
4. Warning Witnesses to Tell the Truth
5. Duty Not to Hear One Litigant in the Absence of
the Other
6. Duty to Propose Compromise
7. Duty to Give True Judgment
8. Judicial Truth and the Evidence
9. Judgment According to the Claim
IO. Taking Sides
11. Judgment on the Evidence Produced
12. Consultation of Professional Literature
13. Reliance on Experience
14. Duty Not to Bend the Law in the Case of Poor
Persons
243
257
258
259
260
260
262
262
262
265
266
267
268
269
270
CONTENTS
15. Duty Not to Bend the Law in the Case of a
Criminal
271
16. Power to Waive Orphans' Rights to Avoid
Recriminations
273
17. Court as "Father of Orphans"
274
18. Hefker Bet Din Hefker – Declaration of Ownerless
Property
276
19. Judicial Discretion – Domicile
276
D. Arbitration
I. Appointment of an Acquaintance as Arbitrator
277
E. Judgment
l. Publication of Minority Opinion
278
Error of Law
3. Binding Nature of Judgment on Matter of
"Status"
4. Judgment by Full Bench
5. Duty to State Reasons
280
2.
280
281
281
F. Execution of Judgment
1. Collection of Debts by Self-Help
2. The Oath of "Ein Li" – "I Do Not Have"
3. Satisfaction out of "Medium" Property
284
285
286
G. Respect for Court
I. Refusal
286
Contempt of Court
3. A Disciple Who Decides the Halakhah in the
Presence of His Teacher
4. Respect for Judge
288
2.
289
289
H. Lawyers
I. Use of Polite Language
291
Chapter Two: CIVIL PROCEDURE
A. Prescription
I. Grounds for Prescription
2. Conflicting Interests
244
292
293
CONTENTS
3. Presumption Without a Claim
294
B. The Parties
1. Persons Having the Right to be Heard
2. Submissions Heard in the Absence of the Opposing
Party
294
295
C. Jurisdiction
I. Preference for Local Jurisdiction
2. "The Plaintiff Must Follow the Defendant"
3. Ne exeat regno
295
296
298
D. Compromise
I. Grounds and Scope
2. Duty to Propose Compromise
3. Equal Division in Compromise
299
303
304
E. Varying the Amount Claimed
1. Judgment Not to be Greater than Amount
Claimed
305
F. Right to be Heard
I. Duty to Allow Sides to Bring All Their Evidence
G. Finality of Judgment
I. Reopening a Case When Judge is Aware of Error
2. Rehearing in Questions of Age
3. Evidence Not to be Admitted After Judgment
4. Rehearing on Discovery of New Evidence
307
311
312
313
314
Chapter Three: CRIMINAL PROCEDURES
A. Detention
I. Detention of Suspect
2. Detention of Women
316
324
B. Delay in Judgment and in Sentencing
I. Delay in Judgment
2. Delay in Sentencing
324
330
245
CONTENTS
C. The Hearings
l. Duty of the Court to Correct Indictment
332
D. Finality of Judgment
1. Acquittal and Retrial as Res judicata
2. Rehearing on New Submissions in Capital Cases
3. Rehearing for a Convicted Person
246
333
335
336
Chapter One
THE JUDICIAL SYSTEM
A. Appointment of Judges
1. Criteria for Appointment
F.H. 21/60
ABUDI v. MINISTER OF RELIGIOUS AFFAIRS et al.
(1960) 14 P.D. 2045, 2073. 2076-2077, 2084-2085
Silberg J.: We again have the burden-this time in a panel of five judges
-of dealing with the problems of elections to the Chief Rabbinical Council
and we must once more air the different aspects of this unhappy case. My
heart goes out to the highly respected institution of the Chief Rabbinate of
Israel. May it not be submerged in the treacherous waters of competitive
hate and envy, let the elections not be sunk or wrecked on the reefs because
of the rift between the quarrelling captains. These differences must not
be allowed to shift the balance to one side or the other. In the course
of the hearings I thought that only co-operation between the two camps in
the Committee could save the Council from disaster and collapse and that
the complete domination of one "block" over the other would put both
victor and vanquished to shame …
We all know – witness the bitter differences before us – that the
importance of appointment to the Electoral Committee is not membership
as such but the influence it indirectly furnishes regarding the final selection
of a candidate for the office of Chief Rabbi or membership on the
Council.
The ultimate and most incisive question is whether any distinction exists
247
PART FOUR: REGULATION OF THE COURTS
between the rabbinic and secular approaches to the qualities required of the
person designated to be a Chief Rabbi or Council member. If the answer
is affirmative, the obvious conclusion is that the Electoral Committee is
heterogenous, and the rule in "Nahlat Yitzhak" applies.
My answer to the above question is that a difference does exist or is
likely to exist. I shall not attempt to define the secular outlook, since
the range of variation is very wide indeed, but I can define the rabbinic
outlook which is identical with that of Jewish law regarding "the installation
of dayanim fjudges)".
The sources tell us that:
"Thou shalt not respect persons" refers to the person appointed to install
dayanim. In case he says "This man is pleasant, I shall install him as
a dayan; this man is brave, I shall install him as a dayan; this man
is well-versed in languages, I shall install him as a dayan," the outcome
will be that the guilty are rendered innocent and the innocent rendered
guilty (Sifre to Deut. 17).
Every Sanhedrin or king or Rosh haGo/ah [Exilarch] that sets up a
dayan for Jews who is not worthy and wise in the Torah and is not fit
to be a dayan, although all may want him and he possesses other good
qualities, has transgressed a negative commandment, for it is written
"Thou shall not respect persons" (M. T Sanhedrin 3:8).
The expression "not worthy" does not mean morally unworthy, since of
such a person Maimonides would not have said that all may want him. It
means rather that he is not suitable for the office of dayan "because he is
not erudite" in the Torah (Lehem Mishneh loc. cit.; cf., for example, "and
although I am not fit and worthy therefor" in the prayer of the cantor
preliminary to the Mussa/ (Additional) Service on the New Year and the
Day of Atonement). Maimonides continues in the same passage:
We know from tradition that (the above verse from Deut.) speaks
against the person appointed to install dayanim [and, reproducing almost
entirely the passage from Sifre, ends] not because he is a wicked man
but because he is not knowledgeable.
The ideal is, of course, that the person installed as dayan should be endowed
with the qualities of being outstanding in his knowledge of the Torah, of
imposing appearance and comely, a person of strength and force, with a
broad general education. Were we today to search as much as we can,
we might-without belittling the others-find such lofty persons for high
rabbinical office. Since, however, it is not easy to find such perfection,
we must necessarily set an order of priorities-who yields to whom, and
248
THE JUDICIAL SYSTEM
Jewish law tells us that the choice must fall on one who exceeds his fellows
in knowledge of the Torah …
Finally, let us examine the problem of the present Council from the
viewpoint of Jewish law. Although it is said that Israel is a state of law
and not a state of Torah, it is difficult to sever entirely the law from the
Torah when the appointment of rabbis is involved. I harbour no doubt at
all that Jewish law requires the Chief Rabbinical Council to play an active
part in the Electoral Committee. That requires the two sides to reach
a compromise and work together in order to duly and properly elect
the Council. The Talmud says:
A leader is not to be appointed over the community without first
consulting it, as it says [Ex. 35:30], "See, the Lord hath called by name
Bezalel." The Holy One blessed he He said to Moses, "Do you think
Bezalel suitable" and (Moses) replied, "If Thou thinkest him suitable,
surely I must also do so." (The Holy One blessed be He) then said
"Nevertheless, go and speak to them." (Moses) went and asked Israel
"Do you think Bezalel suitable?" and they answered "If the Holy One
blessed be He and you think him suitable, surely we do" (Berakhot 55a).
To what lengths did the Holy One blessed be He go in order to find out
the wishes of Israel!
This wonderful Talmudic story is often mentioned in the responsa in
connection with the appointment of rabbis and communal leaders. In the
case of one rabbi who "dominated a community in reliance on an order
from the highest authorities and occupied rabbinical office against the
wishes of the community," Hatam Sofer (Hoshen Mishpat 19) wrote:
This rabbi, be he as lofty as a cedar and mighty as the oak, has not acted
properly in ascending the Capitol by force. Where is his knowledge of
the Talmud, which teaches us that 'a leader is not appointed over
the community without first consulting it'… And if a cantor who has
no sway over the people either to judge them or instruct them (is
appointed only in this manner) … how much more so is it with a rabbi
appointed to lead the community and the community is not consulted,
with the result that the community is forced to accept him against their
will. Very obviously he has not acted properly.
Explanation and comment would be superfluous and would only derogate
from the force of the Sages' observations; afortiori as regards the installation
of dayanim who may in the future serve as chief rabbis in Israel.
The Israeli Chief Rabbinate, if it and this generation are worthy, can
serve as a most valuable educational influence in the consolidation and
249
PART FOUR: REGULATION OF THE COURTS
renewal of the life of the people. Let it be said to all those involved in the
matter that they must refrain from demeaning the institution since those
who oppose both camps together will be overjoyed at the calamity.
2. Qualifications of a Dayan (Religious Court Judge)
H. C. 264/70
MIZRAHI v. APPOINTMENTS COMMITTEE TO THE SUPREME RABBINICAL
COURT et al.
(1970) 24(2) P.D. 335, 339.340
This petition was for an order that the Committee appoint the petitioner as a member
of the High Rabbinical Court instead of another person.
Kister J.: Members may be expected or requested not to "leak" information,
not "to go about as talebearers revealing secrets", particularly members of
a committee for the appointment of dayanim (religious court judges). It
should be remarked that Hafetz Hayim in his Laws of Defamation (2:11)
writes concerning closed hearings of public committees, that it is a serious
offence for a member to reveal what he or others thought. It may be
added that the secrecy of a ballot in such restricted committees is most
doubtful, but after Advocate Shahor proposed that the ballot for the
candidates should be secret and his proposal was accepted, this manner
of proceeding cannot be said to be invalid, and if only two candidates
had received the required majority no reason for invalidating the result
would have existed. However, as I have said, all three candidates received
a majority and the Committee therefore had to find the proper means
of establishing which of the three was to be preferred, and it was not
bound to adhere to any mechanical rule. Ultimately, if we examine
the Law and its purposes, that seems to be the task of the Committee,
since even had two candidates been proposed for two offices, it appears to
me that according to the meaning and object of the Law the Committee
could not say that because there were two candidates for the two offices,
they are to be deemed elected, as is customary with other bodies, but it
had to establish whether the candidates were suitable for the task, and if
it did not decide by a majority as provided in the Law, the candidates
would not be elected.
250
THE JUDICIAL SYSTEM
A further difference exists between the appointment of judges and
dayanim and between elections and appointments to other offices: the
common manner of appointment and election is that a candidate requests
to be nominated or agrees to be a candidate. The legislature adopted a
different method in the case of judges and dayanim, which may be said to
conform to the early tradition of the Jewish people.
Basing himself on Talmudic statements, Maimonides (M. T. Sanhedrin 2:8)
sums up the matter as follows:
The Sages said that messengers were sent by the Sanhedrin throughout
the country to examine all whom they found wise and God-fearing,
open-minded and stable, of suitable age and congenial to people~and
they would make him a dayan of his town and then promote him to
'the gate of the Temple Mount' and thereafter to the 'gate of the Temple
enclosure' and (finally) to the Great Court.
The qualities required of dayanim according to their rank are detailed by
Maimonides in Chapter 2 but I shall not dwell on these and merely quote
from Chapter 3:10.
Thus was the way of the Sages: first they would avoid being appointed
and refrain from acting as judges unless they knew there was no other
fit person and if they so refrained, justice would not be served. Yet
they never sat in judgment until they were compelled or entreated by
the people and the elders.
Today also, it may be said, there are those who are not prepared to
seek appointment to the office of judge or dayan, although they would
be ready to accept the task. The legislature was interested that the fittest
person should be appointed rather than those who sought appointment.
The legislature went very far: not only is it unnecessary for a person
to propose his own candidacy, but all overtures to the committee to
be appointed are prohibited. It is possible, however, to approach those
who under the Law may propose candidates, and they, in turn, may do
so, it they so decide.
3. Worldliness
v.
et al, Part 7, Tort Law, p. 569.
See:
ADV. ROITMAN
See:
MINTZER'. CENTRAL COMMITTEE OF THE ISRAEL BAR ASSOCIATION
UNITED MIZRAHI BANK LTD.
General Principles, p. 125.
251
et al, Part 2,
PART FOUR: REGULATION OF THE COURTS
4. Judicial Qualifications
C.A. 27/ 49
LEVANON v. ALMALIAH
(1950) 3 P. D. 68, 81
A petition for an order declaring the invalidity of a charity which was established in
the Sharia Court and confirmed by the religious court of the Sephardi Community was
dimissed.
Silberg J.: Counsel for the appellant submits that assuming even that the
Sephardi bet din (religious court) was competent to give legal approval to
the charity… R. Papo, in any event, did not have authority to act in view
of the well-known halakhic rule that a bet din is not constituted with less
than three judges.
I do not accept this argument. The rule is restricted and does not apply
where a dayan is an acknowledged expert, widely accepted by the public
as a scholar (see Hoshen Mishpat 3:2). In the present case, R. Yaakov
Barukh attested that R. Papo had been deputy senior rabbi in Baghdad
and a notable rabbi. Since counsel brought no evidence to controvert this
evidence, I am not prepared to set aside the judgment on this submission
of his. Apellant's counsel-who sought to have the registration cancelled
-called no witness at all either in chief testimony or in rebuttal. Hence
all the details demonstrated prima Jacie by the respondent must be treated
as correct.
Counsel for the appellant advanced another argument. Registration in
the land register-so he contended-was effected on the basis of a Shariate
wakf (trust) and not on the basis of a Jewish religious charity, and since
registration, in his opinion, is constitutive and the wakf is invalid on
all accounts, the charity has no force.
This submission too is not acceptable. In the first place, no precedent
was adduced to show that the registration of a charity (of immovables) is
in fact constitutive and indeed creates the charity itself. Secondly, and this
is the main point, the trust submitted to the land registry also embraced,
as was held by the learned District Court judge, R. Papo's judgment,
a copy of judgment being appended to the copy of the trust, with the
result that the failure to refer to it in the registration is neither here nor
there and incapable of voiding the registration as such. The rule that
we should adopt is that documents produced at the land registry are
252
THE JUDICIAL SYSTEM
not determinative of the validity of a transaction but only the original
document wherever it may be, and if that document as such· can serve as
the basis of a transaction that was registered, no importance attaches to
its description in the register.
B. Disqualification of Judges
1. Self-Interest
H.C. 21 / 66
KATABI et al. v. CHAIRMAN OF THE LOCAL COUNCIL
OF KIRYAT EKRON et al.
(1966) 20(2) P.D. l02, 108-109
The Local Council approved an additional budget for the local religious council, in part
to cover payments of wage differentials due to a reclassification ofjobs. The validity of
the approval was challenged on the ground that the second respondent, an employee of
the religious council, had voted as a member of the Local Council on the resolution
granting approval.
Kister J.: The principle that a person is disqualified from considering and
deciding in matters that affect him personally is one which has taken root
over the generations in civilised society.
In Roman law the principle is expressed by the maxim: nemo debet esse
iudex in propria causa.
Jewish law is even more stringent. In Hoshen Mishpat 1: 12, the halakhic
rule is prescribed in the following terms:
No dayan [religious court judge] having a beneficial interest in a matter
may take part in the consideration thereof… Tax matters are therefore
not dealt with by the dayanim of the same city since they or their relatives
have a part therein… If, however, a regulation is made or a custom exists
that a city's judges may also deal with taxation, their judgment stands.
253
PART FOUR: REGULATION OF THE COU RTS
Thus, the rule is that a city judge may not deal with that city's tax matters
because of his own involvement, even if that is absolutely minimal, unless
custom or regulation permit it. The reason for such custom or regulation
is the public interest, but even then the judge may only deal with city
taxation in so far as his involvement is merely general; if it is personal, he
may not (ibid.).
I should note that here we are dealing not with the obligations of a
judge but with the duties of an elected representative. I have, however, not
infrequently cited the law as decided in Hoshen Mishpat 37:22 (Rema),
that the "good men" of a community appointed to transact public affairs
are treated as judges, and therefore a duty as aforesaid applies also to
the present respondents.
Sometimes, a particular statute may in fact enable a member of a public
body to deal with and decide upon a matter in which he has a direct interest.
If such legislation exists, it was clearly only passed for the reason indicated
above, i.e. the public interest, because no other effective procedure was
available. Where, however, there is no such express enactment, we may
only proceed in accordance with the accepted principle that a person with
an interest in the matter is disqualified from participating in the discussion
and voting.
See: RUBINSTEIN et al v. CHIEF RABBINATE COUNCIL ELECTORATE COMMITTEE, Part 3,
Social and Administrative Regulation, p. 177.
M 258/ 65
MIKOLINSKI v. A.B.C. HOUSE LTD.
(1965) 19[2) P.D. 645-647
The Chief Magistrate, to whom a Rent Tribunal had referred the respondents application
that a given matter be heard before a different bench, came to no decision, returning the
file to the chairman of the Tribunal. The latter decided to grant the application. No
objection was made to this decision, but at the opening of the actual proceedings,
respondents counsel argued that the file was illegally transferred since the hearings
had already commenced in the original Tribunal.
Kister J.: I am indeed unhappy with the decision of the Tribunal… When
it found that the argument of respondent's counsel was baseless, it should
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THE JUDICIAL SYSTEM
have continued hearing the matter. It is not enough that a party wishes
to disqualify a judge in order that the latter disqualify himself. The judge's
duty is to finish hearing the matter he has begun unless he finds reason
for disqualifying himself, since to refrain from doing so may interfere
with the proper conduct of the trial and cause injury to the other party
and the public as a whole… This rule is of long standing. If a person
is permitted to be strict with himself and so pious as not to deal with
a matter in which it is claimed that he has some sympathy for one of
the parties, nevertheless, the position is different with a dayan (religious
court judge) appointed by the public. The following appears in Resp.
Maharik 21:
After having been shown to be qualified to try the case … a dayan who
is strict with himself cannot be asked to debar himself; rather he should
rightly endeavour not to persecute the deceitful. .. It is a measure of piety
to be strict with oneself… but where strictness entails loss to others,
there is very obviously no occasion for it. On the contrary, every person
is bound to save his fellow-man from loss and injury and from being
oppressed by others.
2. Judicial Animosity
H.C. 20/59
KINSLEY v. REGISTRAR OF COOPERATIVE SOCIETIES et al.
(1960) 14 P.D. 2297. 2303
Cohn J.: Another argument against the Registrar was that when the
petitioner and other creditors made other various charges against him
and expressed a lack of confidence in him, he became an interested party
in the judicial proceedings assigned to him alone …. This plea is, in my
view, vexatious. Were a party able to disqualify a judge or arbitrator or
other authority for the sole reason that he himself had made imputations
against the latter – imputations that have not yet been proved and
are only credible to the person making them – qualified people would
cease to exist. In truth, it is a leading principle of justice that a person
is by nature self-interested and therefore is not fit to hear a matter in
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PART FOUR : REGULATION OF THE COURTS
which he is personally involved (cf. Shabbat 119a and Ketubot 105b). This
applies not only to material things, such as being given or promised a
bribe or some other benefit, but also to personal things, such as a liking
for or dislike of one of the parties and wishing apparently to further that
person's advancement or detriment (M. T. Sanhedrin 23:6). However, to
make insinuations and arouse suspicions in general terms is insufficient.
There is not a scrap of evidence before us to create even the slightest
doubt that the Registrar here was so affected.
See:
KALO
v.
ATTORNEY-GENERAL,
p. Z72.
3. Greeting a Litigant
H.C. 327/63
MIZRAHI et al. v. MINISTER OF LABOUR et al.
(1964) 18( 1) P.D, 434, 435-436
Silberg J.: This petition is directed against the decision of the Chief
Inspector of Labour, acting under sec. 30(b) of the Hours of Work and
Rest Law, 1951, that the employment of the petitioner in the hotel of the
second respondent comes within the definition of "administrative duties"
under sec. 3(a)(5) of that Law, which renders the employer unable to control
their hours of work and rest, and as a consequence the Law does not apply
to them.
There are no grounds for this petition. The complaint voiced by counsel
for the petitioner against the Chief Inspector is that he acted very favourably
towards the second respondent, "welcomed him most warmly" and "treated
him with great esteem", and therefore "came to a readily-prepared decision
against the applicants", whereas "he should have disqualified himself in
view of his acquaintance with the employer and not the employee."
We are not prepared to set aside the decision of the Inspector on the
basis of these general accusations. I have never heard that acquaintance
alone with a litigant will disqualify a judge from trying a case. Were we
to say so, what would happen to a judge in a small town who knows all
the residents? Even in Jewish law which is very zealous in these matters (see
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THE JUDICIAL SYSTEM
the sources mentioned in H.C. 10/59 Levi v. Tel Aviv District Rabbinical
Court et al. (1959) 13 P.D. 1182, 1188), the fact that a judge greets a
litigant does not disqualify him – it might disqualify him if the reverse
were the case (cf. Ketubot 105b; Be'er Hetev to Hoshen Mishpat 9:3).
C. Judicial Functions and Obligations
l. Judicial Law-Making
Misc. 22/83
KRAUS v. STATE OF ISRAEL
(1983) 37(1) P.D. 365,369
This was an objection to a decision of the District Court to detain the applicant
until the close of proceedings against him, in which he was charged with thirteen
counts involving bribery, blackmail, fraud, breach of confidence, theft and forgery,
committed in the course of a single year when he was chairman of the Students Union
of Tel Aviv University. The issue in this case is whether the severity of the crimes, in
and of themselves, warranted detention.
Elon J.: As the learned judge observed in his decision, we have it indeed from
our Sages that "a bet din (religious court) may administer flogging and other
penalties not under prescript of the Torah, not to transgress the Torah, but
to make a fence around it… not because the penalty is deserved but because
exigencies require it" (Yevamot 90b; Sanhedrin 46a) and this, according
to Rashi (Sanhedrin, /oc. cit.), because people were acting lawlessly and
the circumstances called for it. Under the halakhah this task was placed
upon the bet din, which acted both as a legislature and as a judge. This
principle brought about a great development in Jewish criminal law and
procedure, having regard to the social and ethical changes that occurred
at certain places and times. The situation is otherwise in a system that
separates the legislature from the judiciary, in which a major innovation
such as the detention of a person because of the exigencies of the time
needs to be introduced by legislative enactment.
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PART FOU R: REGULATION OF THE COURTS
2. Duty to Give Judgment
C.A. 238/ 53
COHEN-BUSLIK v. ATTORNEY-GENERAL
(1954) 8 P.D. 4, 10, 21, 34.35
Silberg J.: The subject of the present appeal is the determination of the
legal significance of an unusual act, the solemnization of the marriage of
a Jew and a Jewess not in the office of the Rabbinate but in a lawyer's
office, by a lawyer, after the office of the Rabbinate had refused to
solemnize it on the grounds that it was contrary to Jewish law…
This brings us to the final and most difficult part of this appeal, the
question of whether the learned judge was right in deciding that the
validity of the marriage of the appellants could not be recognised under
Jewish law. A special difficulty arises from the fact that the learned judge…
did not definitely rule that the marriage was a nullity, but only that it
was a doubtful marriage … so that in effect he left the question open and
refrained from deciding the legal problem facing him.
With all due respect to the learned judge, it seems to me that this
is not the correct approach. "Teach your tongue to say 'I know not' "
(Berakhot 4a) is not an injunction directed to a judge; he must generally
arrive at a definite view on every legal question arising before him. Here
the judge was faced, as he saw the matter, with a disagreement among
the halakhic authorities as to the disqualification of witnesses by reason of
ban (herem) and despite his understandable reluctance to engage in the
debate of these high authorities, it was his duty to reach a decision on
the matter for the purpose of the concrete case before him. A precedent
for this duty, if it be required, may be found in the following observations
of the Supreme Court in Palestine Mercantile Bank Ltd. v. Fryman (1938)
5P.L.R. 159: "If the Ottoman law is not clear, it is the duty of the judges
to expound it, however difficult that may be."
From a purely legal point of view, as distinguished from a religous
point of view which is "prohibitive" and tends in cases of doubt to be
strict, in Jewish law there is no special status of a doubtful marriage
(see Kiddushin 5b – "where there is doubt, we suspect the marriage [to
be valid] as a rabbinical measure" – Ran to Alfasi on the same topic;
cf. Resp. Maharit 138). Doubt can only arise as to the precise legal status of
the people concerned, and where doubt arises from juridical differences of
opinion among the great authorities, the judge is bound, as with any other
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THE JUDICIAL SYSTEM
legal question, to reach a decision which is certain and clear, however
humble he may feel.
We must therefore fill in that which, to our regret, the learned judge
omitted and try to take a stand one way or the other on the question he
left open.
3. Duty to Argue for a Litigant Unable to Do So Himself
C.A. 634/76
ESTATE OF M. GERLITZ dcd. et al. V. AHARON
(1979) 33(1) P.D. 253, 255-256
After dissolution of a partnership, the appellanls, who were the heirs of one of the
partners, applied for a proper rent to be paid for the use of their portion of certain
land.
Cohn J.: The second matter is that the learned judge found that the result
he had reached was unjust. He said:
It is only with great regret that I have reached the conclusion that the
plaintiffs failed to rest their claim on any legal foundation. My feelings
are like those of plaintiffs' counsel, that they had been done a wrong and
the defendant had benefited from the lawlessness. Perhaps for this reason
I have expressed my grievance over the fact that plaintiffs counsel did
not carefully examine the situation created and the possibilities available
to the plaintiffs. As the matter was presented before me, I have no choice
but to dismiss the action.
It is, however, a leading rule of very long standing that where there is
a right, there is a remedy – ubi ius ibi remedium – and the court will
not reconcile itself to a wrong that has been done and left unrepaired.
There are judges who are not prepared to decide except according to
what counsel have succeeded in submitting to them and are not ready to
turn themselves into counsel. But I follow my own theory that the sins
of counsel are not to be visited upon their clients. In order to do justice to
a party appearing before it, the court will apply against counsel who does
not know how to plead, the commandment of "opening its mouth for the
dumb". (Thus have batei din (religious courts) proceeded from ancient
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PART FOUR: REGULATION OF THE COURTS
times: when a party did not know how to plead himself, they pleaded for
him: Ketubot 36a; Gitlin 37b; Piskei Rosh to Baba Kamma 1:3.) Regarding
the claims of orphans and widows to succession rights, the Sages said, One
who claims by way of succession does not need any pleadings (M. Baba
Batra 3:3), and Rosh wrote that everything the deceased could plead,
the court will plead, since a minor knows nothing about the affairs of
his father and in such a case the court opens its mouth for the dumb (Resp.
Rosh 86:1). In the present case as well, I have no difficulty in finding a
way of helping the appellants, and I shall follow the path I have paved for
myself, despite the fact that the pleadings here on behalf of the appellants
were far from being exhaustive, precise or comprehensive.
4. Warning Witnesses to Tell the Truth
See:
BECKER
v.
EILAT
et al., Part 5, Evidence, p. 354.
5. Duty Not to Hear One Litigant in the Absence of the Other
C.A. 344/78
MA'ARAVI v. BENSHAR eta/.
(1979) 33(1) P.D. 550, 552-553
Cohn J.: The learned judge wrote what he wrote in his judgment about
the impression made on him by the appellant and it goes without saying
that the respondent's counsel followed suit and added a personal touch
to reinforce his submissions. I shall say nothing at all about the matter
but this opportunity reminds me of the halakhah and I propose saying
something generally.
King Solomon -who, as we know, was not only the wisest of people
but also the most merciful of judges – was apparently the first who
perceived the importance of cross-examination for discovering the truth:
"He that pleadeth his cause first seemeth just; but his neighbour cometh
and searcheth him out" (Prov. 18: 17). R. Levi b. Gershon in the fourteenth
century explained:
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THE JUDICIAL SYSTEM
There is another advantage in appearing before judges before one's
opponent does, for it is the way of people to believe the story first
related to them. Thus the man who first appears before the judge is
'just' for what he says is believed and when the other party turns up
the situation is different and he will not be believed except after full
examination. And that is the reason why the Torah precluded the judge
from hearing the story of one litigant before his opponent appears so
that his mind should not be more disposed to him who first presented
his case …
As the number of judges increased and their bitter experience of litigants
who tried to "snatch" judgments in the absence of their opponents grew,
their response to this phenomenon intensified. Among those who "destroy
the world" R. Yehoshua counted the "cunning rogue" (M. Sotah 3:4)
whom R. Yohanan identified with he "who explains his case to the judge
before the other party appears" (Sotah 21 b). His wickedness lies in his
transgression of "Thou shalt not utter a false report" (Ex. 23:1) and in his
cunning in trying to establish in the mind of the judge a view about his
rights, which it is difficult to remove afterwards (Rashi Sotah 21b).
Moreover, they said that "as those engaged in whispering in judgment
increased, the fierce anger (of God) grew against Israel and the
Shekhinah [Divine Presence] departed" (Sotah 47b). Who are those who
whisper in judgment, if not those advocates who "whisper" to the judges
in the absence of their opponents and begin to argue the innocence of one
and the guilt of the other (Rashi Sotah 47b)? The obvious danger is that
a judge who listens to one party alone cannot know whether the latter
is not dressing up falsehoods as truths, since there is no one to controvert
him (Rashi to Sanhedrin 7b).
In Jewish law also, the rule is that evidence is not received in the absence
of the opposing party, but Jewish law also excepts the case where a party
who has been summoned does not appear (Baba Kamma 112b). Such a
party, as it were, empowers the judge to hear the case in his absence;
and no one can complain if a judge exercises such power. But consider what
injustice might have ensued here had not the respondent and his counsel
appeared at the very last moment, and how great would the expense and
trouble have been to right the injustice.
See: ALTAGAR v. MAYOR OF RAMAT GAN et al, Part 3, Social and Administrative
Regulation, p. 161.
261
PART FOUR: REGULATION OF THE COURTS
6. Duty to Propose Compromise
See: BALIN
v. EXECUTORS OF THE WILL OF LITWINSKY
dcd., p. 303.
7. Duty to Give True Judgment
See: ATTORNEY-GENERAL et al v. MAZAN, p. 313.
See: WERTHEIM v. STATE OF ISRAEL, p. 324.
8. Judicial Truth and the Evidence
H.C. 152/82
ALLON v. GOVERNMENT OF ISRAEL
(1982) 36(4) P. D 449, 471, 472-474
The Government decided to set up a Commission of Enquiry to examine charges
and countercharges regarding the part two people had played in the assassination
of Hayim Arlozorov. Proceedings during the time of the Mandate had at first
instance resulted in the acquittal of one and the conviction of the other and his
being sentenced to death. The appeal by the latter was allowed and he was acquitted
because of lack of corroboration of the evidence of the wife of the victim. In 1964 and
1971 the former had begun proceedings for libel that attributed to him participation
in the assassination and he was awarded damages. The present petition concerns
the question of whether the Governments decision constitutes interference with final
judgments of the judiciary.
Elon J.: The judiciary does indeed endeavour as far as possible to adapt its
principles to the truth of a situation and directs the course of its deliberation
to arrive, as close as may be, at the factual truth. From the viewpoint of the
very nature of the judicial system, even if a mistake occurs in a particular
instance, the decision is still judicial "truth" and the force of this-with
respect to recognition of its binding validity by the legal system-is even
greater than the scientific "truth" that a scientist may achieve… the first
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THE JUDICIAL SYSTEM
"truth" is valid and binding even if it is clear that it rests on an error, so
long as it has not been duly modified within the framework of the legal
system, whereas the latter truth is nullified ipso facto once an error is
revealed …
The thinking of the Sages on this very important subject is instructive.
There is the well-known aggadah (legend) regarding the disputation between
R. Eliezer b. Horkanos and R. Yehoshua and his comrades over the oven
of a man called Akhnai (M. Kelim 5: 10; Y. Mo 'ed Katan 3: 1). According
to R. Eliezer the oven could not become unclean but was "pure", whilst
according to R. Yehoshua and his companions the oven became unclean
and impure. A Beraita (Baba Metzia 59b; Y. Moed Katan 3:1) informs us:
On that day R. Eliezer brought every possible argument but (the
others) did not accept them. So he said to them, "If the halakhah is
as I say it is, let this carob tree prove it". Thereupon the carob tree
was uprooted and thrown one hundred cubits… They said, "No proof
can be brought from a carob tree". He said again to them, "If the
halakhah is as I say it is, let the stream of water prove it", whereupon
the water flowed backwards. They replied, "No proof can be brought
from a stream of water". Once more he said, "If the halakhah is
as I say it is, let the walls of the study house prove it", and the walls
began to fall. R. Yehoshua grew angry with the walls and said, "When
scholars strive with one another in a matter of the halakhah, what
have you to do with it?" And the walls did not fall, out of respect
for R. Yehoshua, nor did they become upright again, out of respect
for R. Eliezer, and they still stand leaning over. Once more he said
to them, "If the halakhah is as I say it is, let it be proved from Heaven",
and a Heavenly Voice issued forth: "Why do you dispute with R. Eliezer,
for the halakhah is according to him in all matters." R. Yehoshua rose
to his feet and exclaimed, "It is not in Heaven!" What does this mean?
Said R. Yirmiyah, "The Torah was already given on Mount Sinai; we
disregard a Heavenly Voice since it was already written in the Torah at
Mount Sinai: 'One must follow the majority' " (Ex. 23:2).
The story reaches its climax at the end:
R. Nathan met Elijah and asked him, "What did the Holy One blessed
be He then do?" He replied, "He smiled and said 'My sons have defeated
me. My sons have defeated me.' "
The ideas which the Sages wished to express through this aggadah possess
several features, and this is not the occasion to elaborate (see M. Elon, Jewish
Law, 227 ff.). For the present purpose, may I quote some observations I
made regarding this agaddah (ibid. 228):
263
PART FOUR: REGULATION OF THE COURTS
The Holy One blessed be He in person, the Giver of the law and
its source, who, as it were, let it be known by means of a Heavenly
Voice that R. Eliezer, though in the minority, had rightly enunciated
the law, admitted that the majority had overridden Him. In theory the
truth may therefore be with an individual… but the halakhic truth lies
with the majority since the halakhah is the responsibility of the halakhic
scholars and the Giver of the Law, as it were, concurs in their decisions.
It is difficult to find a more material example of the exclusive authority
of the halakhic scholar and the absolute rule of the law even as against
its Legislator.
R. Aryeh Leib haCohen says in his preface to Ketzot haHoshen to Hoshen
Mishpat (see also Elon, op. cit. 230-31):
Although a person should fear to say things of the law which are not
correct, the human mind being incapable of arriving at the truth…
the Torah was not given to the Ministering Angels but to man with
his human understanding… The Torah was given to us as to decide
according to our human understanding even though that may not be
the truth.
This fundamental concept is basic to the halakhah. Hillel and Shammai, the
"fathers of the world" (M. Eduyot 1:4), and their schools after them were
divided over a number of matters, but of them the Sages said, "Both are
the words of the Living God but the halakhah is according to the school
of Hillel" (Y. Berakhot l:4; Y. Yevamot 1:6). In theory there are, so to
speak, two "truths", but in practice the halakhic decision with binding
legal effect follows the school of Hillel. "What merit did Bet Hillel have
that the halakhah was determined according to their rulings? Because they
were affable and patient (modest)" (Eruvin 13b). Much has been written to
explain the phrase "both are the words of the Living God", but again we
need not elaborate (see Tosafot Schantz to M. Eduyot 1:5; Kli Yakar to
Deut. 17:1; Elon, op. cit 226-27 and 870 ff.).
Cr.A. I 15/82
MOADI eta/. v. STATE OF ISRAEL
(1984) 38(1) P.D 197,259
The three defendants were convicted ofmurder, largely on their admissions to the police.
They chose not to give evidence at the trial and they argued that their confessions were
invalid because the means adop1ed by the police investigacors "broke" their free will.
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The investigators, they said, also told them that only a confession would prevent family
revenge from being taken for the murder and would assist in their obtaining a pardon
after some years of imprisonment. Failing a confession, they were also told, the police
would widen the net and arrest their father.
Elon J.: It seems to me that in the present wide-ranging discussion concerning
the interpretation of sec. 12 [of the Evidence Ordinance (New Version)
1971], the emphasis should properly be placed upon a basic principle of
the legal and judicial system. This principle, in essence the substructure
of legal policy, is the primary basic obligation of the court to uncover
the factual truth in the case before it and determine the judicial truth
accordingly. While these principles, regarding the education of those in
authority, the preservation of respect for the individual, his body and
soul, and protection of public order, are legal principles involving values
that do not follow immediately from the provisions of sec. 12, the obligation
to give true judgment becomes a judicial value intrinsically connected
with the very essence of that section in the law of evidence. And it is
in accordance with this obligation that the section must be interpreted
and conclusions drawn therefrom.
The task of the court in arriving at the factual truth is an integral
part of the judicial process itself, and the value of evidence delivered in
court is determined by the "indications of truth" that are revealed (sec. 53
of the above Ordinance). This task itself constitutes the rule, since every
judge is commanded to give true judgment (Shabbat IOa; Eruvin 54b;
Megillah 15b; Sanhedrin 7a and lllb and elsewhere). A "true judgment"
(literally "a true judgment according to its truth'), a phrase peculiar to
Hebrew, has received various explanations (see, e.g., Derishah to Tur,
Hoshen Mishpat 1:2; Gra to Prov. 6:4). For our present purpose, the
explanations of Tosefot are interesting:" 'true' excludes 'fradulent'; although
the witnesses attest to something, judgment is not given accordingly when
the judges know they are lying. 'To its truth' so that judgment is not
wrested" (Baba Batra 8b). In other words, "truth" is the factual truth
and "according to its truth" the legal truth. The onus is on the judge to
decide according to the two "truths" in concurrence.
9. Judgment According to the Claim
See: SCHWARTZ v. STATE OF ISRAEL, p. 305.
265
PART FOUR: REGULATION OF THE COURTS
10. Talcing Sides
S.F. 2254/80
SOLIMANI v. SOLIMANI
(1982)(2) P.M. 80. 84
This was an application by a wife to enforce an agreement for the sale of the dwelling
of the spouses (after an effort to restore domestic peace had failed) in accordance with
an agreement approved by the court but not given the force of a judgment.
Gross J.: The result is that for the applicant to enforce the agreement
she must bring a separate action in which she can obviously ask for
various forms of relief to effect enforcement. In these circumstances, the
application cannot be granted, although it is regrettable that her course
cannot be shortened.
I must note that in fact the plea by reason of which the application is
not to be granted was not raised by counsel of either party, and generally
I am in favour of the rabbinical dictum, "Act not the part of counsel" (M.
Avot 1:8), but I cannot close my eyes and ignore this situation, in which
the applicant is not entitled to judgment.
C.A. 225/71 635/71
AUTOCARS LTD. et al. v. MARGOLIS et al.
(1972) 26(1) P.D. 682, 692
This appeal involved the validity of the acts of a company's liquidators acting under
directions of the court, the application for such directions having been made by an ex
parte motion.
Kister J.: Under its powers of supervision over officials, the court will give
directions in reliance upon the information before it. Where, however,
there are differences between an official and a third party, both sides must
be treated equally by the court. It may then have to change its function,
which is sometimes called administrative, into that of a court deciding a
matter between opposing parties, and determine the law on the submissions
and evidence brought by them.
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Jewish law has long been concerned not to confuse these two functions.
Thus, in connection with the guardianship of minor children, Rema to
Hoshen Mishpat 290: l cites Rashba to the effect that the court is the father
of orphans and may itself fulfill this role without appointing independent
guardians. He continues, however, to cite Ran to the effect that where it is
necessary to differentiate between minors and others or where it is necessary
to take proceedings against others, the court must appoint a guardian so
that it does not give the impression of being partisan.
Here indeed some confusion of roles has occurred and an attempt has
been made to convert the permission the trustee received into an order
binding others as well. To have done so creates complications.
11. Judgment on the Evidence Produced
Cul. 80/81
KADOSH v. STATE OF ISRAEL
(1982) 36(3) P.D. 225, 230
The appellant was convicted on seven counts, mainly assault, theft and possession
of arms. He was sentenced to prison, and a prior suspended sentence was activated.
Before pronouncing sentence, the judge adjourned the proceedings for six months, after
hearing the probation officer and having regard to the circumstances, and released the
appellant on bail. Reports submitted by the probation officer during and at the end
of the six months were positive. The appellant claimed that in view of all this a
suspended sentence alone should be given and the prior suspended sentence, the
activation of which is in the discretion of the judge, should in the circumstances not
have been activated.
Elon J.: No one disputes that the experiment was successful. The learned
judge himself, when sentencing the appellant, drew attention to that
success. How then did he reach the conclusion that "the good conduct
of the defendant during the experiment appears to be the result of fear
of the law alone''? There is no foundation for this finding in the material
before the learned judge. In such cases the dictum that "a judge is
to be concerned only with what is before him" (Sanhedrin 6b) is favoured
by us.
267
PART FOUR: REGULATION OF THE COURTS
Cr.A. 190/82
MARKUS v. STATE OF ISRAEL
(1983) 37(1) P.D. 225, 302-303
The appellant, once a senior police officer, was convicted by a majority decision of
giving false evidence in a case of murder which he had investigated. He complained
that the lower court had ignored certain important facts and had come to incorrect
conclusions and findings on the evidence before it and in its appraisal of the credibility
of a witness who had contradicted many other witnesses.
Elon J.: There are many difficulties and obstacles in the path of a judge
wishing to arrive at the truth. His tools are necessarily limited, "for
man looketh on the outward appearance but the Lord looketh on the
heart" (I Samuel 16:7). In Pennekamp v. State of Florida (1946) 1042,
Frankfurter J. reflected: "Judges are also human, and we know better
than did our forebears how powerful is the pull of the unconscious and
how treacherous the rational process." The Sages long ago dwelt upon
the anguish of the judge who fears that he will not get at the real truth
and asks why he should have all the trouble. The answer is that he
"is concerned only with what is before him" (Sanhedrin 6b). This rule has
been explained by Me'iri, an outstanding commentator of the Talmud, as
meaning that all the judge has is "what his eyes see, his ears hear and his
mind understands" (Bet haBekhira to Ketubot 5lb; cf. ls. 6:10; I Kings 3:9).
12. Consultation of Professional Literature
C.A (T.A.) 493/79
ASSULIN v. BENEFITS OFFICER
1980(1) P.M. 177, 208-209
The appellant had in the past been diagnosed as a psychotic. During and as a
consequence of regular army service he became schizophrenic.
Porat J.: Before I conclude, I wish to clarify another matter connected
with the manner in which my judgment has been prepared.
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THE JUDICIAL SYSTEM
Some disagree with judges using scientific and medical texts, saying that
it is a matter for expert witnesses, and yet I have cited from professional,
non-legal, literature.
I do not dispute that evidence is only to be drawn from witnesses, but it
is often difficult to understand the testimony given: then, in my opinion,
it is proper to refer to the literature. M. T. Sanhedrin 2: I states:
One only appoints to the Sanhedrin, whether the Great or Lesser,
persons who are wise, understanding, outstanding in their knowledge of
the law and of considerable insight, who know something about other
disciplines such as medicine, mathematics, astronomy and astrology,
magic and witchcraft and so on, so that they are able to deal with these
matters.
Thus, a judge is not only permitted to be assisted by "other disciplines" but
he is expected to consider them in order to know how to deal with them.
What is meant is to acquire knowledge and understanding, as distinct from
testimony. The distinction made by Maimonides in the twelfth century is
still to be found in modern literature.
13. Reliance on Experience
c.c. 289/60
ROSENBERG v. KLEIN
(1962) 30 P.M. 94, 97
The plaintiff was gored by a cow belonging to the defendant. The cow was known to
be "a goring cow".
Cohen J.: As I have indicated, there had been previous incidents with this
cow that attest to its dangerous propensities and I incline to the view that
plaintiffs counsel was right in submitting that in such a small settlement
as Miron, knowledge of these incidents must have reached the ears of
the defendant in one way or another. An example of a presumption of
knowledge based on experience of how information spreads is to be found
in the Talmud (see Ketubot 110a: "Your friend has a friend and the friend
of your friend has a friend"; so also Baba Batra 28b).
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14. Duty Not to Bend the Law in the Case of Poor Persons
C.A. 409/78
GOLAN et al. v. FARKASH et al.
(1980) 34(1) P.D. 813,820
The issue was the breach of a contract of sale by the appellants and its rescission by
the respondents.
Cohn J.: Both the learned judge in the District Court and my friend
Bekhor J. here feel with their keen sense of justice that the appellants have
been wronged. All the time they were firm in their desire to perform the
contract and did their best to do so. Now they find themselves frustrated by
rescission of the contract because of "a fundamental breach" on their part.
Not only will they not become entitled to the apartment they desire but they
can expect an action for damages, with all the risks involved therein, the
distress and the considerable expense involved. I am satisfied that the law
is not powerless to give them relief.
Before I go into the matter as such, I find it necessary to remove one
obstacle that counsel for the respondents has set up. He also fears the
sympathy of which the appellants are worthy in their difficult position, and
he very seriously warns us, "Thou shalt not favour a poor man in his cause"
(and this is not only a "well-known rule" as he termed it but an express
Biblical verse: Ex. 23:3; see also Lev. 19:15-"Thou shalt not respect the
person of the poor nor favour the person of the mighty but in righteousness
shalt thou judge thy neighbour"). Heaven bears witness that the cause of
the poor man should not be favoured or justified unless he has some right
in law, for it is written, "Thou shalt not pervert judgment for thy needy"
(Ex. 23:6)-do not bend the law to decide that the wicked are guiltless
and that the guiltless are wicked (Mekhilta, Tractate Kaspa, 20). Heaven
also bears witness that we should not discriminate in favour of the poor
so that they sustain themselves "in innocence" and neither you nor the
wealthy need to sustain them (see Torat Kohanim, Kedoshim, 4:3). I
fully confess, however, that I shall neither rest nor remain silent in trying
to find for the poor, the oppressed and the miserable some legal right, and
I shall not believe those who tell me that my efforts will be in vain. If
counsel for the respondent expects an explicit verse to warn me also of
that, here it is: "How long will ye judge unjustly and respect the person of
the wicked? Judge the poor and the fatherless, do justice to the afflicted
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and the destitute, rescue the poor and needy, deliver them out of the hand
of the wicked" (Psalms 82:2-4).
15. Duty Not to Bend the Law in the Case of a Criminal
C.A. 711/72
ME'IR v. THE JEWISH AGENCY
(1974) 28(1) P.D. 393. 406
The appellant was sued for damages and unjust enrichment arising out of his bribing a
functionary of the respondent of which the appellant had been convicted.
Kister J.: I should say that, in dealing with a claim for damages arising
out of a criminal offence, the Court will regard it as one of the principles
of justice to apply the same rules customary in other cases of a tortfeasor,
wrongdoer, or person unjustly enriching himself.
This finds expression in Jewish law too. Ex. 23:6 tells us not to "pervert
the judgment of thy poor in his cause", and the Sages explained that this
rule applies also to the poor in mitzvot (good deeds or commandments),
that is, the wicked. Maimonides in his Sefer haMitzvot (Negative Precept
278) expresses it as follows:
The judge is cautioned against perverting his judgment when he knows
that the person before him is wicked or a sinner… not to say that
because he is wicked I will wrest judgment from him, for Scripture says
'Thou shalt not pervert the judgment of thy poor in his cause' – he is
poor in mitzvot, that is, although he is poor in mitzvot thou shalt not
pervert his judgment.
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Cr.A. 39/66
KAL0v.ATTORNEY-GENERAL
(1966) 20(2) P.D. 188, 191-192
The appellant had offered to sell the complainant a carpet which he said was Persian.
The complainant agreed to buy the carpet and gave the appellant a cheque for IL. 400
for it. Afterwards it turned out that the carpet was not Persian, and the matter was
turned over to the police. The District Court believed the complainant's story and
convicted the appellant of an offence under sec. 2 of the Penal Law Amendment
(Deceit, Blackmail and Extortion) Law, 1963. The Court sentenced him to three
months' imprisonment and activated a previous suspended sentence under the same
section. The appellant argued inter alia that he had been questioned in the lower court
about a previous offence and that the wife of the complainant who had been present
during the incident had not been called upon to give evidence.
Kister J.: In general a defendant is not to be questioned about his character
and his previous offences unless there is a legally recognised exception to
the rule. Counsel for the Attorney-General indeed argued that he was at
liberty to ask this relevant question, but I find no substance in that.
This problem was recently considered by this Court in Shiovitz v.
Attorney-General (1965) 19(3) P.D. 421, where rules were laid down as
to when the prosecution may bring evidence about previous offences and
similar acts. The present case, in my opinion, does not come within these
rules and consequently the evidence with regard to the previous offence
committed by the appellant was inadmissible.
The problem, however, of whether we must set aside the conviction
because of this defect, remains. The reason for not allowing evidence of
previous offences or bad character is well-known – the judge, or rather
the jury, may become prejudiced against the defendant and he may suffer
an injustice. Evidence of this nature should therefore not be introduced, if
possible. This problem of doing justice to a person with a criminal past is of
very long standing. According to Jewish law, in the event of two people
appearing before a judge, one upright and the other wicked, he must not say
that 'since he is a wicked man and is presumptively a liar… I shall rule
against him'. On this it is said: 'Thou shalt not pervert the judgment
of a poor man in his cause – although he is poor of good deeds you
may not rule against him' (M. T. Sanhedrin 2:5). This rule is already to
be found in the Mekhilta of R. Simeon bar Yohai and is repeated by
the authorities, so that the duty of a judge towards a criminal is clear.
R. Eibeschutz in his Sefer haTumim to Hoshen Mishpat 7:9 (ad fin.)
writes that a judge may not try a person whom he dislikes for material
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worldly reasons and deny him his rights, but where the dislike arises out of
heavenly and spiritual matters a judge may sit in trial since he will seek
to give him his rights so that he repents, and this applies in both civil
and criminal law.
Alongside this rule, deeply rooted in halakhic literature, Maimonides
holds (M. T. Sanhedrin 3:6) that it is best for a judge not to know the
litigant at all or know of his previous acts, so that he does not find himself
in a situation where he is required to apply the above mentioned rule:
"If the judge does not know of the person or his acts, there can be no
greater justice" (See also Hoshen Mishpat 7:7). Such an "ideal" situation
is not to be expected in every case and therefore a judge is commanded to
take care not to pervert the judgment of the wicked, as we have said.
16. Power to Waive Orphans' Rights to Avoid Recriminations
C.A. 14/74
SAPIR v. ASHER
(1974) 28(2) P,J). 153. 164
The appellants wife was declared legally incompetent and the respondent was appointed
trustee of her property and person. The appellant claimed that the house in which they
lived and the income thereof belonged to them in equal shares. His request for a
declaration to that effect was dismissed in the lower court which also held that the
power of attorney which the wife had given him on the eve of their marriage was
of no effect.
Kister J.: In his affidavit the appellant states that his wife became depressed
after her daughter had pressured her for an apartment in the said house and
he had refused. He also alleges that the action directed against him would
do him serious wrong, and dispossess him of his property and savings
in favor of his wife's heirs.
The following should be said. The appellant must understand that he
is the owner of only twenty percent of the property and his wife may do
with the rest of it as she pleases and that were she not legally incompetent he
could not stop her. Should the wife desire to give part of her property to the
daughter, she could do so and that would not be considered as dispossessing
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him of his rights in the property. It should also be remembered that the
wife's share in the house came to her from her family and her deceased
husband and she cannot be prevented from conferring benefit from it
upon her children, if she so desires. On the other hand, the respondent
and the children of the ward should be told to forbear as far as possible
and not insist on their full rights so as to avoid disputes. One may properly
recall what is written in Hoshen Mishpat 12:3: "The court may go beyond
the law and waive money due to orphans in order to minimise quarrels."
The ward lives with the appellant and, it is understood, will continue to
do so as long as the doctors do not think it necessary to hospitalise her.
The decision, in the event of any dispute, rests with the court. In this
situation, it is for the appellant and the family of the ward to endeavour
not to disturb the peace.
17. Court as "Father of Orphans"
S.T. l/51
ESTATE OF BAT ARTZI v. MINSKY
(1954) 8 P.D. 1041, I054• 1055
R. Waldenberg: Before dealing with the substance of this case, let me begin
with a brief definition of the court's power to appoint a guardian…
The court's power to appoint a guardian derives from the fact that the
Torah has empowered and entitled the court as agent of the public to
stand in the stead of the head of a family and testator who himself has the
power to appoint a guardian for his infant children and their property.
All this is widely evidenced in the halakhah, and for our present purpose
it is enough to mention two pertinent halakhic statements. The first
is: "Rabban Gamliel and his bet din [religious court] are the parents
of orphans" (Gittin 37a; Baba Kamma 37a), which Rashi explains as
meaning that they have control of their person and property…. Meiri to
Baba Kamma likewise observes that in every generation the permanently
appointed dayanim (judges) are the parents of orphans. That also constitutes
the basis for the power of the court by virtue of its "paternity" to control the
property of missing persons, the mentally defective and the like. The second
is: "How do we know that when (minor) orphans come to divide their
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father's estate, the bet din appoints a guardian for them, whether to their
disadvantage or advantage? Why to their disadvantage? Rather to their
disadvantage in order that it be to their advantage. Scripture says 'and ye
shall take one prince from every tribe to divide the land for inheritance"'
(Num. 34:18) (Kiddushin 42a). Rashi explains the verse to mean that
each prince acted as agent for his tribe and divided its land among the
families in proper fashion as if he were appointed their agent. That is also
the definition of the court's powers. The court is deemed to have been
appointed the agent of its community to oversee all matters of property,
including a power where necessary to appoint guardians for orphans,
missing persons, the mentally defective and the like.
Moreover, there are matters in which the court's power prevails by reason
of hejker bet din (the court's inherent power to expropriate property-see
Nahmanides to Gittin 52). The primary source for this rule is the following:
How do we know that hejker bet din is hejker, i.e. that property
expropriated by the court no longer belongs to its former owner? Because
it is written: "Whosoever came not within three days on the counsel of
the princes and the elders, all his substance shall be forfeited and he
shall be separated from the congregation of the captivity" (Ezra 10:8).
R. Eliezer said we derive it from – "These are the inheritances which
Elazar the priest and Yehoshuah b. Nun and the heads of the fathers'
houses of the tribes distributed for inheritance" (Josh. 19:51). Why is
"fathers" associated with "heads"? To show that just as fathers transmit
to their children whatever property they desire, so the heads transmit to
the public whatever they wish (Gitlin 36b).
See: AUTOCARS LTD. et al v. MARGOLIS et al, p. 266.
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18. Hefker Bet Din Hefker – Declaration of Ownerless Property
F.11. 22/73
BEN SHAHAR v. MAHALEY
( 1974) 28(2) P. D. 89, 100
Under a consent judgment, ii was ruled that if the tenant would fall into arrears with
his rent, he would have to give up his apartment. Because of his general paralysis,
the tenant was unable to discharge his obligations and an action for possession was
brought. The Court held that it possessed inherent power to extend relief on equitable
grounds.
Cohn J.: … Nevertheless, it also has been said, that the court "may always
declare property ownerless and give it away as it deems fit to circumscribe
breaches of religion and strengthen its structure and penalise violence"
(M. T. Sanhedrin, 24:6). Under this power a court can take property from
one person and vest it in another and thus bring about the doing of justice
when a decision in accordance with the law would cause calamity and
injustice. In elucidating the function assigned to the court in upholding
authority Ran cites the view that the court is empowered to expropriate
property (Nedarim 27b). This broad and far-reaching power of hefker bet
din (declaring property ownerless) includes indeed not only the power to
uphold as valid obligations that would otherwise not attach but also the
power to release from obligations or to extend the time for fulfilling them.
We do not possess the power of hefker and I only cite the ancient law
to show how important it was for the talmudic Sages, that the court
should have all the power needed to do justice even when the law might
require it to decide otherwise.
19. Judicial Discretion –
Domicile
H.C. 4/51
SCHWALB v. RASHISH et al.
(1951) 5 P.D. 207, 217-218
The issue in this appeal was the correct meaning of "place of permanent residence" in
the Municipal Corporations Ordinance and how this differs from "domicile". What is
the situation where a person apparently has two such places of permanent residence?
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Silberg J.: Can one imagine that the court will hold that (a person) has
two domiciles …? The answer given in principle by those learned in the law
is that the court needs to make most careful inquiry, consider the finest of
distinctions and then decide in which of the two places a person has his
true domicile.
The Sages of the Talmud already faced this dilemma. It is told in
Ketubot 85b that a man once said, "Let my estate go to Tobiah" and
then died. Two Tobiahs appeared to claim the estate and the question
was what to do in the circumstances, to which of the two was the estate
to be given, particularly when the two Tobiahs were of equal status and
quality and there was nothing to indicate that one was to be preferred
over the other? The answer was that the matter was left to the judges'
discretion (see Rashi and Tosafot ad Zoe.). That is also the only solution
to the problem of two domiciles or places of permanent residence. Here
also the court must conjecture the intention of the person concerned and
determine which place … was "closest" to him. A court that has to go
into this problem is not to be envied, but an answer must eventually
be given, having in mind one consideration or another, as to a person's
one and only domicile or place of permanent residence.
D. Arbitration
I. Appointment of an Acquaintance as Arbitrator
M . 386/80
ZIFZIF –
SUKHRIR WORKS v. ROSENBERG
(1961) 15 P.D. 2499, 2504
An arbitration agreement provided that when one arbitrator resigned, the other two
could continue and make an award if the party who had appointed the arbitrator who
had resigned did not appoint another in his place within forty-eight hours after being
so requested. In the present case the "substitute" did not turn up and the remaining
two made an award against the party whose arbitrator had resigned. The parties
applied to court, one for enforcing the award and the other to set it aside on the
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ground that the arbitrator of the successful party had acted unfairly inter alia by acting
as counsel for the successful party. The District Court set aside the award.
Cohn J.: I agree. The leading rule that a judge should not deal with
a matter in which an intimate of his is involved does not apply to an
arbitrator appointed as one of three, one being appointed by each of the
parties and the third by the two of them or by the parties themselves.
The dictum of Farwell J. quoted in the judgment of my friend Sussman
J… was long preceded by a decision of one of our greatest authorities,
Rema, who wrote that in such a situation each of the two arbitrators
appointed by the parties may argue the law as much as possible in favour
of the one who appointed him and the third arbitrator listens to them
and decides the truth (Hoshen Mishpat 13:1).
It is a long-standing practice among Jews that each party appoints an
intimate or relative or his lawyer as arbitrator, and that itself is in no way
invalid, provided that the other party knows the nature of the relationship
and consents either expressly or by implication.
Hence I am also of the opinion that the appointment and the conduct of
the arbitrator here is in no way invalid.
E. Judgment
I. Publication of Minority Opinion
H. C. 228/64
A. v. JERUSALEM DISTRICT RABBINICAL COURT et al.
(1964) 18(4) P.D. 141. 156
The petitioner came to Israel to visit her son in 1964 and her husband then commenced
proceedings in the Rabbinical Court claiming either domestic peace or divorce. The
Court issued an order ex parte preventing her from leaving the country. The wife
sought to have the order annulled on the ground that being neither an Israeli citizen
nor resident, she was not subject to the Court's jurisdiction. The Court did not accede
and she obtained an order nisi.
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Cohn J.: The two lawyers who argued for the parties before us tried to
make capital – each in his own way and for reasons of his own – out of
the fact that in H.C. 129/63 Mata/on v. Tel Aviv District Rabbinical Court
et al., (1963) 17 P.D. 1640, 1651-2, the judges were divided in their reasons,
though they came to the same conclusion. Each of the lawyers argued that
the view supporting his case in the present instance obtained a majority
in court. For myself, I attach no value or importance to the number of
judges who adhered to one view or another. The game of counting heads
played by learned counsel before us derogates from respect of the court
as a whole and each of the judges in particular. In view of the provisions
of sec. 33(b) of the Courts Law, 1957, there is no need for or purpose
in counting heads. The opinion of a single judge of this court is no less
important in my eyes in establishing the law-as distinct from deciding the
particular case concerned-than the opinion of the majority. R. Yehudah
has already taught us that the observations of the individual are mentioned
among the many, in case they will be needed on occasion for support
(T. Eduyot I :4). The history of the Supreme Court of the United States
demonstrates that as well.
F.H. 13/80
HENDELES v. KUPAT AM BANK LTD. eta/.
(1981) 35(2) P.D. 785,786
The issue here was whether property found on the floor of a bank's safe-deposit room
was property found "in the domain of another person" within the meaning of sec. 3
of the Restoration of Lost Property Law, 1973.
Elon J.: There are two reasons why I have somewhat enlarged on this
theme in the course of the present hearing. The first is that until now
I have had no better and more apt example with which to illuminate
the course that should be followed, in my opinion, in interpreting Israeli
legislation. The second reason is the following passage in T. Eduyot I :4:
"R. Yehudah said that the opinion of a single person is mentioned among
the many in case it may be needed on occasion and be relied upon." (See
also M. Eduyot 1:5; and consider well Rabad and Rash miSchantz ad
Joe.)
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2. Error of Law
C.A. 434/79
GRAETZ v. DEJANI et al.
(1981) 35(2) P.D. 351,354
The appellant, a German company, sued the respondents on the basis of a bill of
exchange which had been accepted by the first respondent in East Jerusalem and
had not been paid. The bill was issued in the period in which East Jerusalem was
under Jordanian rule. The suit had heen dismissed by the District Court, and hence
the appeal.
Tirkel J.: The District Court's conclusion that there is no judge in whose
jurisdiction the enforcement of the bill falls, and no legal system for making
such a decision, is an elementary error in law (ta'ut bidvar mishnah). As
such, the decision is legally invalid and must be reversed (Sanhedrin 33a).
3. Binding Nature of Judgment on Matter of "Status"
C.A. 431/80
ROSENBERG et al. v. HAZAN
(1981) 35(2) P.D. 742. 754, 756
The appellants were the parents of a person who had been declared the father of the
respondent. Having failed to enforce a judgment for maintenance against her father, the
respondent successfully proceeded against the appellants pusuant to sec. 4 of the Family
Law Amendment (Maintenance) Law, 1959 and the appellants were ordered to pay her
a sum larger than that awarded against her father. The issue whether the declaration
ofpaternity in other proceedings bound the appellants, who were not themselves parties
to such proceedings.
Tirkel J.: The main question in this appeal is whether the declaration of
paternity is good against the whole world (a judgment in rem) or only
against the parties involved (a judgment in personam). That has never
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THE JUDICIAL SYSTEM
been decided by this court. We may nevertheless say in the words of
our Rabbis that "the Elder has already given a ruling" (Shabbat 51a;
Yevamot 105b) and that was said both in general terms and on a doctrinal
basis …
It may be noted that examination of the sources of Jewish law reveals a
similar approach among thelater authorities: a judgment regarding personal
status may bind a person who was not party to the proceedings. Even
haEzer 11 :4 states that "if witnesses attest that a woman had committed
adultery, they need to be cross-examined", to which Rema adds "but
the evidence is not to be accepted if it was given in her absence and
in the absence of the husband." Helkat haMehokek ad lac. observes thatThe same obtains if she has married the adulterer; although the evidence
forbids her to him, it appears nevertheless that he does not need to be
present when the evidence was taken … since she is ipso facto forbidden
to him just as she is forbidden to all kohanim [members of the Priestly
tribe] though they were not present when the evidence was taken.
4. Judgment by Full Bench
See:
ABUDI v. MINISTER OF RELIGIOUS AFFAIRS
et al, Part 3, Social and Administrative
Regulation, p. 159.
5. Duty to State Reasons
H.C. 7/ 83
BY ARES v. HAIFA DISTRICT RABBINICAL COURT et al
(1984) 38(1) P.D. 673, 688-690
In the course of divorce proceedings, the spouses agreed that the wife should have the
custody of two children and the husband the custody of a third child. Provisions were
made for access and education of the children. The husband discovered that the wife
was living and bringing up the children with a non-Jew, and he sought to have custody
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of them transferred to himself so that he could bring them up in a Jewish manner.
They came before a bench of two, rather than three, judges in the rabbinical court
with the consent of the parties, and after a very short and summary hearing that court
transferred custody as requested but without giving reasons for its decision.
Beiski J.: It seems to me unnecessary to explain the importance of the
principle that all members of a court or rabbinical court or other tribunal
are to be present during the oral hearings of a case before them, since
only by doing so can they take part in the consequent decision. This
is not only so that justice may be seen to be done but also to ensure
that the grounds of the decision are based on the personal and independent
impressions that each of them has received. Here also the sources are to
be found in Jewish law which regards a bench of two as "an even court"
which cannot come to a decision (Sanhedrin 3b). In most matters a bench
must be made up of three judges at least (M. Sanhedrin 1:1; Hoshen
Mishpat 3:1-2), although there are exceptions in civil law where the parties
may effectively consent otherwise …
There is no need to expand on the obligation to give reasons for every
judgment or decision under the general law. "It is a leading principle
-written or unwritten-.that a court must set out the grounds for its decision"
(H.C. 176/54 Joshua v. Appeals Tribunals (1955) 9 P.D. 617 at 635; D.
Levin, Judicial Tribunals in the State of Israel (1969) 67 ff.; sec. 182 of the
Crimninal Procedure Law (Consolidated Version), 1982; and reg. 215 of the
Civil Procedure Regulations, 1958). This obligation encompasses not only
judicial and quasi-judicial tribunals but also administrative authorities
(Administrative Procedure Amendment (Statement of Reasons) Law, 1959)
so that a court can review the reasons.
As regards the rabbinical courts, the obligation to state reasons is
entrenched in chapter 11 of the Rabbinical Courts Procedural Regulations.
Thus reg. 103 provides: "Every decision given in the course of legal
proceedings must be in writing and must state reasons". And reg. 104
provides: "Judgment must also include, besides the decision in the matter,
(a) a summation of the submissions of the parties, (b) a holding of the
important facts, and (c) the reasons for the decision." The exception for
not setting out, on some ground or another, such reasons, appears in reg.
105 which requires the consent of the parties and "their waiver of the
right of appeal."
In an article by E. Schochetman – "The Duty of Stating Reasons in
Jewish Law", 6-7 Jewish Law Annual (1979-80) 319, 353, 395, we find that
the imposition of this duty is something new in the halakhah, particularly
as regards the work of the rabbinical courts. However, in H. C. 142/70
Shapira v. Jerusalem District Committee ofthe Israel Bar Association (1971)
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THE JUDICIAL SYSTEM
25(1) P.D. 325, 333-335 [see Part 3, Social and Administrative Regulation,
p. 179], Kister J. gives in detail the halakhic sources regarding the duty to
state reasons and the conditions thereof, as determined by M. T. Sanhedrin,
and by Rema in Hoshen Mishpat and in Resp. Havot Ya'ir: "It is not
sufficient to set out the submission, the facts as found or elucidated in court,
but the actual reasons must be added, that is, the legal grounds for the
decision." The observations of R. Uziel are very apt: "By writing a reasoned
judgment we demonstrate the quality of justice that fills Jewish law and
the efforts made by the judge to arrive at the truth as far as he can … and
give true judgment" (Mishpetei Uziel, Part 3, Hoshen Mishpat 1:13).
In the present case, the reasons are exhausted in a couple of words-"In
view of the foregoing"-i.e. as stated in the husband's application, and in
the single sentence that each party uttered before the imcomplete bench.
The respondent contends that these words actually embody the real grounds
for the operative decision. If this means that the fact alone – which no
one disputes – that the woman is living with a gentile justifies taking
the children out of her custody, we have already enlarged on this aspect
and have said that this reason by itself is not enough for any decision
without examining the complex of circumstances and matters involved,
from which one may deduce what the welfare of the children requires,
and there is no reference to that in the decision. In such an instance,
Elon J. has observed in S.T. 1/81 Nagar v. Nagar (1984) 38(1) P.D. 365:
"With all respect, such extraordinary briefness on so basic a question as
the education of the children, in the especially complicated circumstances
of the case, is not enough."
See: SHAPIRA v. JERUSALEM DISTRICT COMMITTEE OF THE ISRAEL BAR ASSOCIATION, Part
3, Social and Administrative Regulation, p. 179.
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F. Execution of Judgment
1. Collection of Debts by Self-Help
c.A. 216/73
SOLOMONOVv.AVRAHAM
(1974) 28(1) P.D. 184, 195-196
Two claims were here made against payment of certain cheques – coercion, and
conditional drawing of the cheques.
Kister J.: Since my friend Laudau J. has raised … the question of public
policy against permitting the collection of debts under coercion, it will not
be amiss for me to mention the attitude of Jewish Jaw on this matter.
Jewish law does not allow for the collection of debts by self- help (Tur and
Shulhan Arukh, Hoshen Mishpat 4). Coercion is regarded as precluding the
intention necessary for sustaining a transaction. The question is a large one
and this is not the place to go into it extensively. I would only emphasize
that a sale differs from a gift. A sale will in certain circumstances be
treated as subsisting if there was no protest, since the money was paid
over and in the course of the transaction the proper intention is ultimately
forthcoming , whereas it is otherwise with a gift. This distinction is parallel
to the one drawn by Etzioni J. between pressure in collecting a proved
debt and pressure to undertake a new obligation. It would seem that
under Jewish law too, it is permitted ex post facto to collect a debt
pursuant to a deed made under pressure, provided that the debt is clear
and certain and payment is already due. Such pressure is similar to that
in the case of a sale. Pressure to enter into a new obligation, however,
is like pressure to make a gift, and is a nullity. But even in the case
of a sale the consideration offered must always be examined to see that
it is full and immediate. In the present case the appellant gave cheques
for a sum in excess of that which, he alleges, was due to the respondent.
He also indicated his intentions by stipulating that if it turned out that
the municipality made deductions from the payments, the cheque would
not be honored: that constituted notice sufficient to rescind a sale made
under pressure as well. The threat here was not an empty one, since the
respondent had exerted force even before the cheques were drawn, and the
appellant had reason to believe that he would be harmed by the respondent.
284
THE JUDICIAL SYSTEM
2. The Oath of "Ein Li"-"I Do Not Have"
C.A.(T-A) 435/80
FARJIN v. MORED et al.
(1982) (I) P.M. 409, 412-413
The appellant had applied to have a number of claims against him for repayment
of debts consolidated, but the Execution Officer had rejected the application, largely
because the monthly payments he proposed were insufficient ever to meet the debts
due.
Barish J.: It has been a basic principle in execution matters since before
the legislature enacted execution laws that just as a person must pay his
debts, so a creditor must avoid oppressing the debtor to compel him to
pay more than he can genuinely afford.
The law does not tolerate such oppression, nor is it reconcilable with
basic principles regarding individual rights and good social order. Of that
and its like, Scripture loudly protests, "If thou lend money to any of My
people, even to the poor with thee, thou shalt not be to him as a
creditor" (Ex. 22:24). Moreover, "No man shall take the mill or upper
millstone to pledge, for he taketh a man's life to pledge", and "if he
be a poor man, thou shalt not sleep with his pledge; thou shalt surely
restore to him the pledge when the sun goeth down that he may sleep in
his garment and bless thee; and it shall be righteousness unto thee before
the Lord thy God" (Deut. 24:6, 13).
Maimonides bases the following rules on these verses (M. T. Malveh
veLoveh 2:1):
It is the (Biblical) law that when a lender claims his debt, if the borrower
has possessions, they are arranged for his support, and the creditor is
paid the rest as I have explained. [Maimonides interprets "arranged"
in M. T. Malveh veLoveh 1:7: The borrower is told to produce all his
movables, not omitting anything. Of this amount he is given maintenance
for thirty days and clothing which is suitable but not luxurious for twelve
months.] And if the borrower has nothing or just enough for his support
he goes free without restriction, nor is he told to produce evidence that
he is a pauper; he is not required to take an oath in the manner of
the gentiles, for it says, "Thou shalt not be to him as a creditor".
Instead, the lender is told that if he knows of any possessions of the
person indebted to him, he may go and seize them.
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PART FOU R: REGULATION OF THE COURTS
Maimonides adds (ibid. 2:4):
Where a person is reputedly a pauper, going around begging, and this is
known to the judge and to most people, and the creditor wants him to
take an oath … not being satisfied by the obvious poverty of the person
but wishing to cause him grief and shame him in public in order to
avenge himself or make him go and borrow from gentiles or take his
wife's possessions to pay his debts so as to be released from the oath,
it seems to me forbidden to a God-fearing judge to administer this
oath, and if one is administered, the scriptural prohibition, 'Thou shalt
not be to him as a creditor' is transgressed. Moreover, the judge should
rebuke the plaintiff strongly for bearing a grudge and acting stubbornly
(see also in this regard M. Elon, Jewish Law, Part 2, 535 ff.).
The difficulties and doubts facing an Execution Officer are very clear
when duly enforcing the payment of debts, most debtors unfortunately
being deceitful and evasive. Yet it certainly seems possible and necessary
to apply these rules of Maimonides at the present time mutatis mutandis.
3. Satisfaction out of "Medium" Property
See:
SHMUEL v. ISRAEL,
Part 9, Property-Physical and Intellectual, p. 738.
G. Respect for Court
1. Refusal
C.A. 807/ 72
SOBOL et al. v. GOLDMAN et al.
(1979) 33(1) P.D. 789, 803-804
This appeal involved the dismissal in Ii mine by the District Court of an application for
an injunction against a rabbinical court in a matter of succession and for a declaration
that the courts decision was null and void.
286
THE JUDICIAL SYSTEM
Elon J.: Whilst I shall not deal with the power of a rabbinical court to issue a
warrant of refusal since it is not relevant in the present case, I shall preface
a few observations on the nature of such a warrant and the manner
of its issue by a rabbinical court. The form of herem (excommunication)
given in Darkhei Moshe to Tur, Hoshen Mishpat 19-to which respondents'
counsel referred and which was cited by my colleague – is set out in
the geonic responsa (Sha'are Tsedek 14) by Rav Paltoi bar Rav Abaye.
This form is connected with the talmudic "opening" (See G. Libsen, "For
What is Excommunication Ordered: the Grounds for Excommunication
in Palestine and Babylon in Mishnaic and Talmudic Times," 2 haMishpat
halvri, 323, 332 note 206). The warrant of refusal, in its institutionalised
legal form, apparently evolved in later times and differed in its nature and
consequences. The subject requires investigation but this is not the occasion
to elaborate. The common feature is that both served as an important
sanction available to a Jewish court which, although it enjoyed judicial
autonomy in the diaspora, lacked the adequate means of coercion that
were at the disposal of a sovereign state (see M. Elon, Jewish Law, I,
11-12).
Even in those times when such means were vital-and generally accepted
-for maintaining Jewish judicial autonomy, the rabbis limited their use. On
the observations of Rav Paltoi mentioned above, Ribash in the fourteenth
century wrote: "The geonim were wont to be very strict in their decrees
and with those who disobeyed their rulings… Subsequently, the rulings
of the Gemara alone were followed, and it has already been said that
our niddui [ban] is like their reprimand" (Resp. Ribash 173).
Not only with regard to the especially severe measures of which Paltoi
speaks, but in general the rabbis limited as far as possible the use of
the herem and niddui. Prof. Assaf has summed up the matter well in his
Punishment after the Close of the Talmud (at p. 34):
It is noteworthy that the leading rabbis in each generation refrained
from employing the power of herem. It is reported of Maharil that he
excommunicated a person only once in his lifetime, and no person is
known to have been excommunicated by him before or after (Minhagei
Maharil). A contemporary of his, R. Israel Bruna, wrote: "My father and
teacher enjoined me in his will never to concur in any niddui anywhere"
(Resp. Mahari Bruna 188)… When it was necessary to order niddui,
it was not done without communal consent. Rabbenu Tam and his
colleagues ordained that a rabbi was not to proclaim niddui without
permission of the community nor the community without leave from the
rabbi. Rosh also attests: "Never did I presume to order niddui without
public concurrence" (Resp. Rosh 43:19).
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PART FOUR: REGULATION OF THE COURTS
The remarks of these great halakhic scholars apply a fortiori in our own
days. It would seem that in the same spirit, the Rules of Procedure of
the Rabbinical Courts of Israel do not mention the matter of issuing a
writ of contumacy, although other coercive measures, such as prohibition
against leaving the country and sequestration of property, are mentioned
(see paras. 96-98).
2. Contempt of Court
H.C. 371/67
FOGEL v. LEVINGER et al.
(1968) li(l) P.D. 344. 350
A writ of contumacy was issued against the first respondent, the rabbi of a settlement,
for refusing to appear before the rabbinical court in a dispute between him and a local
shohet (ritual slaughterer), whose slaughtering he had invalidated.
Kister J.: It should be observed that the true significance of "a letter
of contumacy" is that it is a declaration that a given person refuses to
appear before the court and he is to be regarded under religious law as
guilty of contempt of court, with the various consequences that ensue.
According to Resp. Bet Ya'akov 33, the consequence of a dayan (judge)
refusing to appear in court is that he may not act as a dayan, one
of the reasons being the rule that a person who is not judged cannot
judge others (Sanhedrin 18a). I shall not enter into the question of when
a bet din (religious court) should order a local rabbi to appear and
issue a letter of contumacy. Here such a letter was issued, and although
appeal is available and the Chief Rabbinical Council also has appropriate
powers and functions, the first respondent did nothing to have the letter
of contumacy withdrawn, and generally took no steps to have the matter
remitted to another bet din, had he really wished to do so, or to have
the decisions of the Petah Tikvah bet din set aside in the normal way.
Apart from that, it must be stressed that in spite of the decision of
the rabbinical court not to introduce another shohet into the settlement,
which means that the petitioner remains qualified to act, the first respondent
saw fit, of his own volition, to invalidate the slaughtering of the petitioner
288
THE JUDICIAL SYSTEM
without obtaining a decision of this or another court or of the Chief
Rabbinate.
3. A Disciple Who Decides the Halakhah in the Presence of His Teacher
H.C. 361/67
GOLDENBERG et al. v. ATTORNEY-GENERAL et al.
(1968) 22(1) P.D. 36S, 371
The petitioners submitted that the District Court had erred in dismissing their plea that
the Amnesty Law required that pending proceedings against them should cease. That
decision was upheld by the Attorney-General.
Cohn J.: Moreover, even setting aside the said intention of the legislature,
it is good sense and courtesy that the Attorney-General, who himself or
through his representative is a party to the proceedings in question, should
not go against the court even by exercising the general powers vested in him
by law, even when that is justified on the merits. To do so is like the
halakhic student who lays down the law in the presence of his teacher
-even though he is greater than his teacher and even if he is justified in
his directives, he is banned (Shabbat 19b).
4. Respect for Judge
Cr.F. 5/48
ATTORNEY-GENERAL v. SHEINBERGER
1949 Hamishpal 28, 30
Halevi P.: The defendant, Sheinberger, was charged with contempt of court
under sec. 13l(l)(b) of the Criminal Code Ordinance, 1936…
However, in the humble opinion of this Court, the defendant is also
289
PART FOUR: REGULATION OF THE COURTS
guilty under Jewish law: see Hoshen Mishpat 8:4 – "The community is
bound to act respectfully towards a dayan Gudge) and stand in awe of
him." And paragraph 5 adds, "One may not act with frivolity towards
an agent of the bet din [religious court] and the bet din may order any
one who grieves such agent to be flogged makat mardut [flogging for
disobedience to the rabbis] and the agent is as credible as two witnesses in
testifying that he was abused".
See also paragraph 2:
Every bet din, even if not ordained in Eretz Yisrael, when it sees that
people are acting lawlessly (and it is urgently necessary – Tur) may
impose the death penalty or monetary fines or other penal sanctions
even in the absence of complete evidence… (And it may do what it
thinks fit to contain the lawlessness then prevailing-Tur, citing M. T.
Sanhedrin 24:4) and all that it does should be for the sake of Heaven,
and this applies to a great authority or communal leaders who have
been appointed as a bet din over the community.
See likewise Resp. Zikhron Yehudah 79 (by R. Yehudah the son of Rosh)
(cited in Assaf, Punishment after the Close of the Talmud, 76), dealing
with a case where a dayan was treated badly:
It is well-known that law is one of the three foundations upon which the
world rests and but for the judges the stronger would prevail. It is the
judges who put the law on the sound foundation whereby the world is
properly ordered. They are likened to royalty, as the Sages propounded …
We are cautioned to respect them and all the more not to put them to
shame, even when they are not acting as judges but especially so in
connection with the very matter before them.
It seems to me that it is proper to rebuke him as if there were witnesses
since the punishment is intended to limit this lawlessness so that every
dayan will decide truthfully and not go in fear of any litigant.
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THE JUDICIAL SYSTEM
H. Lawyers
1. Use of Polite Language
Ap.Ch.A. 10/81
DISTRICT BOARD OF ISRAEL BAR ASSOCIATION v. A.
(19&2) 36(3) P.D. 379,383
By a majority decision the District Disciplinary Court exonerated the respondent, a
lawyer, from acting in a manner unbecoming the profession in using extremely sharp
language in a defence against a claim for lawyers' fees.
Elon J.: It may be said that it is not only the duty of a lawyer to use
restrained and polite language but it is in his own interest. The wisest
of men has already said: "The words of the wise spoken in quiet are
more acceptable than the cry of a ruler among fools" (Eccles. 9: 17).
This verse has been variously interpreted: as a commonplace, the words
of a wise man are spoken and heard in quiet, unlike a foolish ruler
who shouts and cries like a crane; others understand it in its simple and
logical sense: the words of the wise are heard in quiet, unlike the shouts
of a ruler among fools, for which reason they are listened to (Rashi
ad /oc.) more than the shouts of a foolish ruler whose words are not
comprehended and absorbed in the noise he makes (see also lbn Ezra
ad loc.) … It follows that to defend one's client faithfully and devotedly,
counsel should speak gently, for only then will he be sure of being heard
by those who need to hear him.
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Chapter Two
CIVIL PROCEDURE
A. Prescription
1. Grounds for Prescription
C.A. 158/ 54
DE BOTON et al. v. MIZRAHI BANK LTD. et al.
(1956) 10 P.D. 687,688, 695
Silberg J.: This is an appeal against a judgment of the Tel Aviv District
Court dismissing proceedings by the appellants for a declaration and a
mandatory injuction in connection with certain land …
Prescription has a long history and a firm place in one form or another in
the legal systems of all peoples and in all periods. Its source lies therefore
in general human need and the basic requirements of social life everywhere
and at all times. This universal law has several aspects and there are several
reasons for it, of which the following are most important:
(a) The difficulty a defendant has in preserving his evidence and proof
over a long period. Receipts are gnawed by mice, as the Talmud puts it (M.
Baba Batra 170b), and witnesses may die. Hence almost every legislator has
stipulated that when a claim is made after the passage of a period considered
to be excessive the defendant is entitled to be believed in what he says and is
not required to produce evidence in contradiction. It is this kind of action,
or something like it, that accounts for "presumptive title" after three years
of undisputed possession in the case of land in Jewish law. "For one,
two and three years a person will take care of his title deeds; beyond that
he will not" (ibid. 29b).
(b) Over-long delay in commencing an action suggests forebearing and
292
THE JUDICIAL SYSTEM
H. Lawyers
l. Use of Polite Language
Ap.Ch.A. 10/81
DISTRICT BOARD OF ISRAEL BAR ASSOCIATION v. A.
(1982) 36(3) P.D. 379, 383
By a majority decision the District Disciplinary Court exonerated the respondent, a
lawyer, from acting in a manner unbecoming the profession in using extremely sharp
language in a defence against a claim/or lawyers'fees.
Elon J.: It may be said that it is not only the duty of a lawyer to use
restrained and polite language but it is in his own interest. The wisest
of men has already said: "The words of the wise spoken in quiet are
more acceptable than the cry of a ruler among fools" (Eccles. 9:17).
This verse has been variously interpreted: as a commonplace, the words
of a wise man are spoken and heard in quiet, unlike a foolish ruler
who shouts and cries like a crane; others understand it in its simple and
logical sense: the words of the wise are heard in quiet, unlike the shouts
of a ruler among fools, for which reason they are listened to (Rashi
ad loc.) more than the shouts of a foolish ruler whose words are not
comprehended and absorbed in the noise he makes (see also Ibn Ezra
ad foe.) … It follows that to defend one's client faithfully and devotedly,
counsel should speak gently, for only then will he be sure of being heard
by those who need to hear him.
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Chapter Two
CIVIL PROCEDURE
A. Prescription
1. Grounds for Prescription
C.A. 158/54
DE BOTON et al. v. MIZRAHI BANK LTD. et al
(1956) 10 P.D. 681,688, 695
Silberg J.: This is an appeal against a judgment of the Tel Aviv District
Court dismissing proceedings by the appellants for a declaration and a
mandatory injuction in connection with certain land …
Prescription has a long history and a firm place in one form or another in
the legal systems of all peoples and in all periods. Its source lies therefore
in general human need and the basic requirements of social life everywhere
and at all times. This universal law has several aspects and there are several
reasons for it, of which the following are most important:
(a) The difficulty a defendant has in preserving his evidence and proof
over a long period. Receipts are gnawed by mice, as the Talmud puts it (M.
Baba Batra 170b), and witnesses may die. Hence almost every legislator has
stipulated that when a claim is made after the passage of a period considered
to be excessive the defendant is entitled to be believed in what he says and is
not required to produce evidence in contradiction. It is this kind of action,
or something like it, that accounts for "presumptive title" after three years
of undisputed possession in the case of land in Jewish law. "For one,
two and three years a person will take care of his title deeds~ beyond that
he will not" (ibid. 29b).
(b) Over-long delay in commencing an action suggests forebearing and
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CIVIL PROCEDURE
waiver. It is thus, for example, that Jewish law explains the "prescription"
of a claim by a widow under her ketubah (marriage document), as long
as she is residing with her father (Ketubot 104a), and because of this
presumed forebearing she cannot claim her marriage settlement from the
heirs after the passage of twenty-five years (ibid. 104a).
2. Conflicting Interests
C.A. 242/66
JACOBSON v. GAZ et al.
(1967►
21(1) P.D. 85, 99-100
A picture belonging to the appellant was borrowed for an exhibition in Johannesburg
in 1949 and disappeared. It was discovered in 1960, but before the appellant could take
steps to recover it, it disappeared again. It was finally discovered in an exhibition in
Tel Aviv in 1964, apparently lent by the respondent who purported to be its owner.
In the District Court the appellant's action was dismissed in limine either under the
Mejelle or under the Civil Wrongs Ordinance, 1944 because of prescription.
Kister J.: In general, every legal system which contains provisions regarding
periods of prescription provides for the benefit of injured parties who were
unable to establish their claim within the normal period of prescription.
There are systems in which greater concern is shown for the interests of the
plaintiff, and others in which the interest of the defend ant is safe-guarded.
An example of such opposing interests that are to be considered in
deciding the law is to be found in Jewish law. A Mishnah in Baba
Batra (10:6) tells us that-
Where a person has paid part of his debt, R. Yehudah says he shall
exchange his bond for another (expressing the remainder of the debt).
R. Jose says he shall write a receipt. R. Yehudah said: "If so, he
would have to guard his receipt from mice", to which R. Jose replied:
"That is better for (the creditor) and the debtor's rights will not be
harmed."
The rule is settled by Hoshen Mishpat 54:1, and represents a balancing
between these two interests …
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PART FOUR: REGULATION OF THE COURTS
3. Presumption Without a Claim
See: GILBERG v. PANOSS. Part 9, Property- Physical and Intellectual, p. 703.
B. The Parties
I. Persons Having the Right to be Heard
C.A. 811/75
RUSSIAN ECCLESIASTICAL MISSION IN JERUSALEM v. ATTORNEY-GENERAL
et al.
(1977) Jl(J) P.D. 317, 323-324
The appellant claimed possession of certain property against three Russian nuns as the
registered owner thereof The respondent intervened under his statutory powers and
supported the defendants. An affidavit which he desired to submit was opposed by the
appellants on the ground that he had no right to do so under statute.
Cohn J.: I concur and I have nothing to add to the remarks of the President
as regards the meaning of the words "to be heard" in sec. 1 of the Ordinance
in respect both of the legislative history of this Mandatory enactment and
of the aim and purpose of the Ordinance.
I am emboldened to add something of my own in order to show that the
interpretation as aforesaid is invited also by Jewish law. The Ordinance
in its New Version is binding law… and what requires construction is the
Hebrew employed by the legislature.
The procedure which judges are commanded to follow is to "hear the
causes between your brethren and judge them righteously" (Deut. 15:16).
The halakhic Midrash explains "to hear" to mean that "the righteous claims
with righteousness and presents evidence" (Sifre Deut. 16), which means
that "to hear" includes the bringing of evidence.
Scripture also tells us, "And let them judge the people at all seasons:
and it shall be that every great matter they shall bring unto thee but every
294
CIVIL PROCEDURE
small matter they shall judge themselves" (Ex. 18:22) and then, some few
verses later, "And they shall judge the people at all seasons; the difficult
cases they shall bring unto Moses but every small matter they shall judge
themselves" (Ex. 18:26). This teaches us that a "matter" brought before a
judge means the entire case: i.e., the claim, the argument and the evidence.
Thus we also call every legal proceeding between people a "cause and
matter" and when a person gives up a claim he says "I have no cause or
matter with you" (Ketubot 56a: 83a-b, 93a, 95a and elsewhere), just as we
call a litigant "one who has a matter" (Baba Metzia 14a; Baba Kamma 8b
and elsewhere).
That is what we have said: the power "to be heard" in trial is the power
to be party to a matter in all respects.
2. Submissions Heard in the Absence of the Opposing Party
See: MA'ARAVI v. BENSHAR, p. 260.
C. Jurisdiction
1. Preference for Local Jurisdiction
C.A. 322/70
TEL AVIV MUNICIPALITY v. ARTISTS AGENCY LTD.
( 1970) 24(2) P.D. 588
The respondent moved for a declatory judgment that it was entitled to a rebate given
by the Municipality to Hebrew-language theatre. The main plea of the appellant was
that such a declaration could only be made by the High Court of Justice.
Cohn J.: I find nothing wrong with a citizen having a choice between
petitioning the High Court of Justice or proceeding in any other court.
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PART FOUR: REGULATION OF THE COURTS
The only bad thing is that instead of answering the citizen on the merits
of his complaint and litigating in its own area, the local authority wastes
public money and bothers the plaintiff and the courts by futile litigation
over formal submissions of lack of competence. It has long been accepted
that when one party says "Let us litigate here" and the other says "Let us
go up to the Sanhedrin in Jerusalem", the latter is compelled to litigate in
his own locality (M. T. Sanhedrin 6:6; Hoshen Mishpat 14: 1).
2. "The Plaintiff Must Follow the Defendant"
H.C. 99/62
SULTAN v. TIBERIAS RABBINICAL COURT et al.
(1962) 16 P.D. 1763, 1767-1768
The second respondent, a very recent immigrant, claimed maintenance for herself and
her four children from her husband, the petitioner, who, she alleged, had abandoned
her and the children more than five years previously and had immigrated to Israel
on his own and married another woman. The petitioner lived in Jerusalem and the
Statement of Claim was sent to him there. His lawyer wrote to the Tiberius court
that the petitioner would be on reserve duty on the day fixed for trial. He also asked
for the claim to be dismissed for lack ofjurisdiction. The Tiberius Court heard the case
ex parte and held that respondent should direct her complaints to the Jerusalem Court,
which would deal with the entire matter. At the same time the petitioner was ordered to
pay a sum for interim maintenance since the children were in dire distress. The petitioner
sought to upset this order as well for want of both material and local jurisdiction.
Silberg J.: As regards local jurisdiction, the situation is somewhat different.
The rabbis themselves held in their judgment that the plaintiff was to
address her complaints against her husband to the Jerusalem District Court.
Thus they "admitted" that the Tiberias Court had no local jurisdiction to
deal with the matter.
Nevertheless, as regards the interim maintenance, we are of the opinion
that the Court had jurisdiction to make the order as it did. This matter is
unlike the other. The general rule is that one "follows" the defendant, a
rule also recognized by Jewish law (Resp. Maharik 21; Rema to Hoshen
Mishpat 14:1; Rules of Procedure of the Rabbinical Courts of Israel, rule
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CIVIL PROCEDURE
7). It springs from a practical and logical consideration: a defendant whose
obligation has not yet been established is not to be put out and have to
proceed to the plaintiff wherever he may be sued. On the contrary, "if a
man has a pain, he goes to the doctor" (Baba Kamma 46b). At the moment,
the defendant has in fact no "pain". This consideration should rightly
admit of certain exceptions, as when the justified interest of the plaintiff
is so immediately and decisively important that it obviates talcing account
of the trouble to which the defendant is put. Indeed we find in the above
Rules of Procedure two rules that point in the same direction:
16. Where a person has applied to prosecute a claim not in the locality
of the defendant but in a court closest to the defendant's location, on the
ground that in the circumstances of the case he is unable to litigate at
the defendant's location, the court in which the claim was filed may
deal with the matter and determine whether to entertain the claim.
17. Notwithstanding the foregoing, where an application has been
made to a court to safeguard the rights of the applicant in a case of
desertion or concealment of property, the court may, if it sees reason
therefore, entertain the application and make interim orders accordingly.
If the defendant requires that the continued hearing of the interim
order should be conducted in some court having jurisdiction under the
preceding paragraphs, the court that commenced to hear the application
may decide in the given circumstances whether to continue the hearings
or remit them to a court having jurisdiction as aforesaid.
The basis for rule 17 is – as indicated in the list of sources appended to
the Rabbinical Rules-Rema to Hoshen Mishpat 73:10: "If a defendant
is from another town and it appears kl the bet din [religious court] that
the defendant's assets situated in the plaintiffs town are property to be
attached, the defendant must come and litigate in the town of the defendant
in order to release the assets". Another precedent is found in Terumat
haDeshen, Pesahim 64.
Examination of all the sources dealing with "local jurisdiction" under
Jewish law demonstrates that no rigid rules exists: all depends on the
circumstances and exigencies of the case and all rests on the discretion
of the judges. This emerges, on careful consideration, from Terumat
haDeshen 305 and the observations of Serna to Hoshen Mishpat 14: 11
(ad fin.). See also Resp. Mabit 343, which relies upon the words "and
the like" used by Tashbetz (see the responsum quoted by Bet Yosef to
Hoshen Mishpat 14) and concludes that hearings may be transferred from
the defendant's place to any other place in every case similar to that before
Tashbetz, which is further evidence of the flexibility of the said rule.
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PART FOUR: REG U LATION OF THE COURTS
If such is the situation, then the distinction which the Tiberias rabbis drew
between interim and permanent maintenance seems to us to be logical and
justified. On the claim for permanent maintenance the evidence and proof
will necessitate a considerable number of court hearings. It is therefore
proper that the plaintiff should follow the defendant to Jerusalem. By
contrast, the claim for interim maintenance is very short and simple.
There is on the one hand the woman looking after four children, all
new immigrants who have not had enough time to settle down in the
country, and on the other the father who sired them and – according
to the plaintiff – has married another woman and is not concerned at
all with the children. In these circumstances, the formal rule of local
jurisdiction is not to be pedantically applied. The Tiberias rabbis did well in
applying as it were, both before and after the event, the saying: "Speak
therefore to him and see that he meets us in Tiberias" (see the explanation
of this saying in Sanhedrin 31 b), at least over the claim for interim
maintenance.
We have gone into the question of jurisdiction under Jewish law because
in our view the rabbis who heard the matter possessed local jurisdiction.
We must, however, add that even if that were not so, it is very doubtful
whether we would interfere with their judgment since questions of local
jurisdiction are largely not among the matters in which this Court is
obliged to intervene for the purpose of doing justice.
3. Ne exeat regno
M. 3/52
KOVETZ v. KOVETZ
(1952)6 P.D. !12, !13-114, !18
The parties are husband and wife. After four teen years of marriage the respondent
abandoned the petitioner and their thirteen-year-old daughter and refused to live with
them. The petitioner brought proceedings to order the husband to return to live with
her and to charge him with maintenance until he did so, and meanwhile to forbid him
to transfer his property without her consent. In connection with these proceedings, the
court made certain interlocutory orders at the request of the petitioner, including an
interim attachment of the husband's property and an order preventing his departure
from the country.
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Assaf J.: Without expressing my opinion on the actual question of whether
an interim attachment may be made to assure the monthly payment of
maintenance by the husband, I concur in the opinion of Cheshin J. that here
the attachment should not continue until the fate of the appeal is decided.
The respondent is well-to-do and owns a business and his affairs are not
on the verge of collapse. There is therefore no sufficient basis to fear
that his wife will find nothing from which to collect her maintenance in
the amount fixed by the court until the appeal is heard. In imposing an
attachment, even where it is empowered to do so, the court always has
discretion.
As regards the injunction against departure from the country, I would
bring support to my learned friend from Hoshen Mishpat 73:10, the terms of
which are almost identical with art. 656 of the Mejelle: "If a person borrows
money for a fixed period and within that period the lender sees that the
borrower wishes to go abroad and [the lender] claims what is due to him
or that a security be given him, he is listened to."
D. Compromise
1. Grounds and Scope
C.A. 807/77
SOBOL et al. v. GOLDMAN et al.
(1979) 33(1) P.D. 789, 798, 800-803
The issue in this appeal was a judgment dismissing in limine an application for an
injunction against a rabbinical court in a matter of succession.
Elon J.: In the opinion of my learned friend, since the rabbinical court
exercised its power of compromise when determining the rights of the
parties in the estate, the question arises whether it did not act contrary to
the rule requiring it to decide according to its religious law, thus leaving
itself open to review by the High Court of Justice. In the present case,
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however, no such claim will be heard in support of the appellant, for she
was too late in raising it…
Three views are to be found in the Talmudic literature regarding
compromise. In the opinion of R. Yehoshua b. Korba:
It is a mitzvah [religious obligation] to compromise for it is said, 'Execute
the judgment of truth and peace in your gates' (Zech. 8:16)…. What is
a judgment of truth that embraces peace? Compromise…. What is a
judgment that embraces justice? Compromise (Sifre to Deut., para. 17;
T. Sanhedrin 1:2-3; Sanhedrin 6b; Y. Sanhedrin 1:1).
A diametrically opposed view is that of R. Eliezer b. R. Jose haGalili:
It is forbidden to compromise and anyone who does so is a sinner and
anyone who welcomes a compromise is despicable…. Let the law take its
course, for it is written 'judgment is God's' (T. and Sanhedrin loc. cit.).
The third view is that of R. Shimon b. Menassia who holds that
compromise is neither mitzvah nor transgression but is optional (Sanhedrin
loc. cit.). ·
The halakhah has accepted the first view. Thus M. T. Sanhedrin 8:4
stipulates:
It is a mitzvah to ask the parties at the outset, "Do you wish a judgment
or a compromise?" If they wish a compromise, that is done. Every bet
din [religious court] that always makes a compromise merits esteem,
and of it it is said, "Execute the judgment of… peace in your gates"
(Zech. 8: 16). What judgment includes peace? Compromise. So of David
it is written, "And David did justice and righteousness unto all his
people" (II Sam. 8: I 5). What is justice that includes righteousness?
Compromise. When does this apply? Before the verdict is pronounced;
although argument has been heard and the bet din knows which way the
law will go, it is still a mitzvah to compromise. After verdict has been
pronounced and one party has been found innocent and the other
liable, a compromise may not be made between them but the law must
take its course (to the same effect Tur and Shu/han Arukh, Hoshen
Mishpat 12:2).
In Jewish law, the nature and mode of making a compromise are clearly
legalistic. Thus, compromise is not a matter of arbitrary decision but
must be made after serious thought. "Compromise also needs thoughtful
decision" ( Y. Sanhedrin 1: 1). Tur and Shu/han Arukh devote a special
section (Hoshen Mishpat 12) to the laws concerning compromise. In
Shulhan Arukh, sec. 12 contains nineteen paragraphs, explaining in detail
how compromise is made, when it comes into effect and so on, and in
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these provisions compromise emerges as an institution of manifest legal
character. Thus, for example, one of these basic provisions is that "just as
one is cautioned not to bend the law, so also is one cautioned not to bend
a compromise in favour of one more than to the other" (Para. 2).
An interesting question was posed to R. Avraham di Boton (Resp.
Lehem Rav, 87) about a litigant "who made a compromise agreement
with kinyan [formal act of commitment] and oath, that he would accept
all that was pronounced against him as the judge thought fit, as if it had
been pronounced by the Sanhedrin in Jerusalem." The judge decided what
he did by way of compromise in accordance with the agreement of the
parties, and then one of them asked R. di Boton to revoke the decision
on the ground that it had been given without hearing all submissions. The
judge replied that he knew the matter well and all the arguments which
that party had meant to put forward. R. di Boton, however, revoked the
decision, saying inter alia:
In Tur, Hoshen Mishpat 17, it is written that it is necessary for a judge to
hear the parties and consider them well … and justify the judgment in his
own heart. Only then shall he decide. Even when giving a compromise
judgment, it appears certain that the same applies, since sec. 12 lays
down that just as one is cautioned not to bend the law, so is one
cautioned not to bend a compromise in favour of one more than to the
other. .. A judge must be as meticulous in compromise as in judgment.
Hence in the present case, whether the judge decided according to law or
made a compromise, since he did not hear the arguments, his judgment
is not law, nor is his compromise a compromise.
Because clear directives regarding the actual making of a compromise are
lacking, some of the Sages prescribed more stringent rules for compromises
than for judicial decisions. Thus, "if there is more than one judge, then a
majority decision is not sufficient, but there must be unanimity" (Hoshen
Mishpat 12:18). R. Meir haLevi Abulafia observed instructively in his
commentary on Sanhedrin 32b that the verse 'In justice shalt thou judge
thy neighbour' (Lev. 19:15) relates to judicial judgments, whilst the verse,
'Justice, justice shalt thou pursue' (Deut. 16:2) is directed to a decision as
to compromise. For this reason "justice" appears once in the former and
twice in the latter verse, becausefor judicial judgment, lucidity and close examination are not as necessary;
one must only judge in accordance with the law without fear of
condemning the innocent or acquitting the guilty. Compromise, however,
requires considerable examination and the use of one's discretion to
determine who is speaking the truth and with whom one should be
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more stringent ( Yad Ramah to Sanhedrin 32b; see further, M. Elon,
The Principles of Jewish Law, 570-73 and bibliography).
Thus we see that compromise is a substantive part of Jewish law, and is
distinguished by clear juridical procedures and principles. Therefore, the
provision in sec. 155(b) of the Succession Law, 1965, that a religious court
may follow its religious law, has reference both to judicial judgments of the
court and to decisions it makes via a compromise. In fact, the Rabbinical
Court here dealt at length and in depth with the matter before it prior
to arriving at its decision. And it is decided law regarding the decisions
of the rabbinical courts that "what they decide is their religious law and
no civil court may question their conduct regarding the nature of their
religious law" (per Cohn J. in Shtreit v. Chief Rabbi (1964) 18(1) P.D. 598,
608).
I would add incidentally that this compromise is very close to the law,
or more precisely, to the aim of Jewish law in regard to giving a daughter
a right of succession. Many different takkanot (regulations) have been
enacted to this end over the course of time in various communities of the
Diaspora, and the rabbis grounded these takkanot in the halakhah (see
Elon, Jewish Law, 682-86). Upon the establishment of the State the late
Chief Rabbis, Herzog and Uziel, made similar efforts (ibid., 104).
For the above reasons, the judgment of the Rabbinical Court in the
present matter was correct. I would add a further practical point. If a
compromise made by a rabbinical court were not regarded as "a decision
in accordance with its religious law", the result would be that when a
rabbinical court tries to settle the differences between parties who come
before it voluntarily over matters of succession, it would have to avoid
writing a compromise judgment on the basis of the parties' consent
and remit the matter to the District Court to effect the compromise. This
is a result that does not commend itself.
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CIVIL PROCEDURE
2. Duty to Propose Compromise
App. 288/l7
BALIN v. EXECUTORS OF THE WILL OF RAYMOND LITWINSKY dcd.
(l959) 20 P.M. 60, 63, 79
Kister J.: In general, under Jewish law a person who inclines to compromise
is commendable. Rashi comments on the verse, "And thou shalt do what is
right and good" (Deut. 6: 18) that this refers to a compromise, beyond the
strict letter of the law, and Nahmanides also observes inter alia regarding
this verse that " … it is not possible for the Torah to mention every feature of
a person's conduct toward, and his dealings with, his friends and neighbours
with regard to the public good; but after mentioning some of them, such
as 'Thou shalt not go around as a talebearer' (Lev. 19: 16) and 'Thou
shalt not take vengeance nor bear any grudge' (ibid. 18), the Torah goes on
to lay down the general rule of doing what is right and good in all things,
including therein the making of compromises and acting with equity and
maintaining a good reputation and speaking kindly with all people."
However, the court which is commanded to initiate a compromise and
to persuade the parties to settle their differences amicably, may not do
so when it already knows how the law will go. Just as a judge may
not bend the law, he may not bend a compromise nor force a party
to enter into a compromise; and a party is not bound to waive his rights and
compromise. A guardian of property not his own certainly may not waive
property of others: thus in relation to the property of orphans, Hoshen
Mishpat 12 and others lay down certain rules regarding the authority
of a guardian to compromise. Guardians and the court which supervises
them have authority to compromise if that is clearly for the benefit of the
orphans. Piskei Mahara'i 162 and Hoshen Mishpat 12:3 further comment
that a court may waive the rights of orphans, aside from the law, in order
to protect them from controversy (see also the glosses ad loc). Obviously,
the court must carefully consider each case on its own so as not to cause
any orphan any injustice. That is the duty of the guardian and of the
court regarding property under their protection, on the one hand not
to waive any part thereof and on the other hand to compromise when that
will be advantageous.
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3. Equal Division in Compromise
c.c. !317/62
ASSNIN v. YAROSHAVSKY et al.
(1964) 40 P.M. 131, 135, !36
The defendants, as owners of an old-age home, received IL 2,500 as an admission fee
from a person since deceased. The plaintiff, the heir and executor ofthe deceased's estate,
sued for the return of IL 2,020 on the grounds that the deceased had not acclimated
herself to the place and had died suddenly within four months after arriving there.
The parties had originally agreed that the fee would be returnable after deducting IL
160 per month if the deceased left the home on written notice. Nothing was provided
in the agreement concerning death, although there was oral evidence that the defendants
had agreed that in such event the parties would compromise. On this basis, the court
charged the defendants with the return of half of the original sum.
Kister J.: On the other hand, there is some reason for the silence of the
contract with regard to death. When an elderly person, sick and frail,
enters an institution, it is not pleasant to include a condition ensuring
that in the event of death within a given period a certain sum should
be repayable to the heirs. This is particularly so in Jewish tradition, as
the Talmud (Berakhot 19a) says, "A person should never speak in a way
that gives an opening to Satan", and "A person does not meet trouble
half-way" ( Gittin 18a). In accordance with this, Even haEzer 145:8 states
that where a man gives his wife a get [bill of divorce] on his deathbed,
he should do so on the condition that if he does not die, the get will
be void, but if he dies, it should take effect immediately from the date
he gave it. In order, however, not to invite trouble from the start, he
should not commence with the condition, "If I should die", but rather,
"If I should not die." Here, where the daughter paid over the money
and told her mother to sign the contract, it was certainly to be expected
that she would avoid inserting a special condition referring to the death
of her mother in the institution. It is well-known that sensitive people
do not suggest that a relative should make a will for fear of hurting his
or her feelings. Hence it cannot be said that the omission of the condition
is due to a waiver of the return of the money in this event. ..
The plaintiff, through her lawyer, agreed that in the event of death not
all the money was repayable but that the parties should compromise. The
evidence was not controverted by any witness and I accept it. The question
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remains how the court should proceed where the parties say that they will
compromise. No precedent of English law is known to me to cover such a
case, but in Jewish law I have found a responsum in Resp. Shevut Ya'akov,
2:145. There the parties chose a person to make a compromise between
them which approximated the law insofar as possible, and the person so
chosen requested guidance. This was the answer he received: "Justify the
compromise according to your discretion, but do not be harsh on one
person more than the other", from which we may infer that a compromise
is an actual judicial judgment. The Hebrew for compromise comes from
the same root as "lukewarm", neither hot nor cold, and as it is said,
"judges made a division" of the matter in question, generally speaking. At
all events, the person making the compromise is at liberty to act as he
deems fit except that he should not favour one against the other, so that
they come to an amicable settlement.
E. Varying the Amount Claimed
1. Judgment Not to be Greater than Amount Claimed
C.A. 222/66
SCHWARTZ v. STATE OF ISRAEL
(1966) 20(4) P.D. 237, 240, 247
The appellant worked as a stevedore in Jaffa and was injured in a work-related accident.
He sued for IL. 27,000 in damages. That sum was reduced to IL. 20,000 as the result
of a decision of the Registrar to exempt him from payment of court fees on such
a sum. After evidence had begun to be heard, the appellant sought leave to amend his
Statement of Claim by increasing the damages to IL. 87,000, the difference being
explained by the fact that originally the appellant had calculated his damages on the
basis of the disability he had suffered in the accident alone, which was thirty percent,
and that in turn had caused him a loss of salary of IL. 150 per month. The larger sum
was based on the addition to his disability of his prior deformity (deaf and dumbness),
making his entire disability sixty-eight percent, entailing a loss of earning of IL 250
per month…
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Kister J.: Regarding the increase in the sum claimed, it is proper to mention
the approach that Jewish law takes. Rema to Hoshen Mishpat 17:12 rules
that "Where a person sues in a minor matter and the judge thinks that in law
the other side should be charged with more, the judge may not award him
more than claimed, and if he does award him more, it is an error and
judgment is reversed."
The commentators agree that the basis for this rule is a waiver by
the plaintiff, who has agreed to be satisfied with what he claimed. But
what is the position where the plaintiff claims a lesser sum because of
a mistake of law? Almost all the commentators of Shulhan Arukh and
the responsa authorities pose the question of how a judge should act
when he sees or fears that the plaintiff was mistaken in law: may he
award him more than what was claimed or draw plaintiffs attention to
the fact, or should he do nothing and award only what has been claimed?
It is surely not fair for the defendant to exploit the plaintiff's error,
and there is no need for me to set out in detail the significance of a
person exploiting the error of his neighbour and paying him less than
is due to him – I see no need to enter into a discussion of this question
here. But one thing is clear. If a plaintiff who has erred becomes aware
of his mistake during the proceedings and wishes to increase his claim,
then so long as he has not made a binding waiver, he may ask for what
is due to him under the law. R. Shmu'el Mohliver, in his Studies in the
Halakhah and the Responsa (1944), favours the view that a judge should
not interfere or award more than is claimed by the plaintiff, but the latter
himself can change his mind and increase his claim.
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CIVIL PROCEDURE
F. Right to be Heard
I. Duty to Allow Sides to Bring All Their Evidence
H.C. 9/ 58
BERMAN et al. v. MINISTER OF INTERIOR
(1958) 12 P.D. 1493, 1496, 1503, 1506-1507
Silberg J.: On 16 January 1958 the following two notices were published
by the respondent: (1) Tel Aviv-Jaffa (Change in Municipal Boundaries)
Proclamation (Amendment), 1958, and (2) Local Councils (A) (Amendment
No. 6) Order, 1958. These had been made on 25 January 1957, and the
significance of the data they contained was that the district of Nahlat
Yitzhak had been withdrawn from the municipal area of Tel Aviv and
attached to the Local Council of Givatayim. Clearly, if the Proclamation
were cancelled, the Order of Attachment would eo facto also become
void, since one district cannot be controlled by two authorities or be
an integral part of two different municipal areas. On the other hand,
if the relief sought is not granted, and the Proclamation is not set aside,
counsel for the petitioners – as they stated before us – will not appeal
to void the Order of Attachment to Givatayim because their clients are
not interested in restoring the independent status their district possessed
until the end of March 1948. Thus, notwithstanding the sharp criticism
levelled by petitioners' counsel against the Order of Attachment, the only
question before us concerns the validity of the Proclamation…
Counsel for the petitioners urge that the Minister's action was improper.
He had not heard "the other side" in a manner consonant with reaching
a quasi-judicial decision. He did not even wish to listen to the arguments
of the opponents but adopted an inflexible attitude not open to appeal,
even before his final decision to sign the Proclamation. Such conduct was
defective and invalidated the Proclamation itself…
Nevertheless, that does not exhaust the matter in all its seriousness
because the principle of a fair hearing to both sides is not the only principle
governing the problem before us. There is still another principle, certainly
not less important, which I would phrase in the manner of the well-known
maxim: "No punishment without forewarning"-"forewarning" by giving
notice and the opportunity to be heard in defense. "Punishment" here
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PART FOUR: REGULATION OF THE COURTS
is not necessarily a criminal penalty. As early as the beginning of the
nineteenth century Lord Ellenborough declared that "it is contrary to
the first principles of reason and justice that either in civil or criminal
proceedings a man should be condemned before he is heard" (Buchanan v.
Rucker (1807) 170 E.R. 877,878). And with regard to depriving Dr. Bentley
of his academic degrees at the beginning of the eighteenth century, Lord
Fortescue said that according to what he had heard, the source of the
principle of first hearing a party who may be prejudiced is to be found
in God's word to Adam before expelling him from the Garden of Eden
(Gen. 3:9, 11). Here is the delightful passage:
Besides, the objection for want of notice can never be got over. The
laws of God and of man both give the party an opportunity to
make his defense, if he has any. I remember having heard it observed
by a very learned man upon such an occasion, that even God himself
did not pass sentence upon Adam before he was called upon to make
his defense. Adam (says God), where art thou? Hast thou not eaten of
the tree, whereof I have commanded thee that thou shouldst not eat?
And the same question was put to Eve also (R. v. The Chancellor,
Master and Scholars of the University of Cambridge (1723) 93 E.R. 698,
704).
H.C. 10/ 59
LEVI v. TEL AVIV DISTRICT RABBINICAL COURT et al.
(1959) IJP.D. 1182, 1187-1189
The main issue in this petition was whether the proceedings in the Rabbinical Court
were defective by reason of a breach of the principles of natural justice, i.e. audiatur et
altera pars, "the other party must be heard".
Silberg J.: This basic procedural rule [that the other party must be permitted
to bring all his evidence] is not the monopoly of the laws of other people. In
fact it exists in Jewish law too (consider Baba Metzia 112b; M. T. Malveh
veLoveh 22:2-3; Hoshen Mishpat 98:4-5; ibid. 16:1). On reflection, it seems
that its main source lies in the much wider and more profound principle
of "the equality of litigants" which, according to the outlook of our Sages,
is the very essence of "justice" in legal proceedings.
It is a positive commandment for a judge to adjudicate justly, since
it is said, 'In righteousness [justice] shalt thou judge thy neighbour'
(Lev. 19: 15). What is just judgment? The equality of the litigants in all
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CIVIL PROCEDURE
respects. Let one not say all that he wishes and the other be bidden to
be brief. One should not be greeted cordially and addressed gently and
the other frowned upon and addressed harshly. Where one is dressed
in costly garments and the other in poor garments, say to the former,
'Either clothe him as yourself before you litigate with him or dress
yourself as he so that you are equal and then appear for trial'. One
should not sit and the other stand, but both should stand, and if the
court wishes to have them sitting, both should be seated. One should not
stand above and the other below, but side by side (M. T. Sanhedrin 21:13, based upon Shevuot 30a-b).
We read in Resp. Rema 108:
It is therefore plain that a matter cannot be heard without hearing the
argument of the defendant, for the Torah says: 'Hear your brethren.'
Although this is obvious, we may learn from the ways of God blessed
be He for all His ways are just and His ways are ways of pleasantness
and his paths – peace. He began with Adam by asking him: "Who
told you that you are naked?" and to Cain He also said: "Where is
Abel your brother?" And this in order to hear his argument. How
much more so with the ordinary human. Thus our Sages explained the
verse, "I shall go down and see", and instructing judges not to decide
until they have heard and understood. Even when it is clear to them
that the defendant is guilty, they must first hear what he has to say.
In the case before us the learned rabbis did not act in the spirit of these
words and, with all due respect, they violated one of the principles of
natural justice. It is certainly true that according to Jewish law, "a man
is not bound to maintain his wife unless she lives with him" (Ritba to
Ketubot 12). Here the woman admitted that she no longer lives with
her husband, testifying that "for ten days I was not at home". But in the
same breath she added, "because my husband and children are killing
me", which means in professional terms, "I cannot get on with him".
If that is so, the husband, as we know, is liable for maintenance even
if the wife leaves home.
Where a woman leaves her husband's home and goes elsewhere because,
she says, the home is situated in a place where people speak badly of
her and the like, he must maintain her if she claims it… The same
applies if she quarreled with her husband and could not get on with
him and kept herself from him and had to borrow for her maintenance
-he must pay (Even haEzer 70:12 and Rema ad loc.).
Counsel for the wife asked that he be allowed to show why she had left her
husband. He could not produce the witnesses immediately, because he in
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PART FOUR: REGULATION OF THE COURTS
fact did not know that this question of the duty of maintenance ceasing by
reason of the wife leaving would then come up before the judges. We regard
it as an infraction of the principle of natural justice not to give the woman
the opportunity of disarming the husband's arguments, which requires the
hearing of both sides in a proper manner.
!l.C. 91/74
GABARA et al. v. TEL AVIV DISTRICT COURT et al.
(1974) 28(2) P.D. 518, 526
Cohn J.: As for the nature of the principles of natural justice, some say
that they can be reduced to two: that each person looks out for himself
and therefore may not sit in judgment on a matter in which he has an
interest, and that a person is not to be judged until he has been heard, as
it is written, "Hear the causes between your brethren and judge righteously"
(Deut. 1:16). All the other rules of natural justice are derived from these
two (Marshall, Natural Justice (1959) 5 ff.).
See: THE RUSSIAN ECCLESIASTICAL MISSION IN JERUSALEM v. ATTORNEY GENERAL et al.,
p. 294.
See: A. v. B.• Part 3, Social and Administrative Regulation, p. 170.
Misc. 31 / 81
BEN SIMON et al. v. THE STATE OF ISRAEL
(1982) (l) P.M. 436, 438
This was an application for an order nisi against the Governor of Beer Sheba Prison.
The petitioners, who were imprisoned there, were deprived of the right to buy what
they needed in the prison canteen in consequence of a report from the warders
that one of them had started a fire in his cell and the other had refused to get
up and appear at morning parade. They claimed they had not been given an opportunity
to be heard.
Laron J.: Recently I had a similar case in which I decided on the spot that
to act in this way is basically a violation of one of the rules of natural
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CIVIL PROCEDURE
justice, i.e., that the rights of a person are not to be prejudiced without
giving him an opportunity to be heard, and accordingly I revoked a denial
of a benefit. Since it has been made clear to me that the attitude of
the State is not to accept this decision and amend procedures accordingly
and its argument is that in the present petition there was nothing defective
in the procedure followed, I shall enlarge somewhat on the matter.
The judgment in Beker v. Rehovot District Rabbinical Court (1973) 27(1)
P.D. 568, at 572 states:
It is not superfluous to recall that the sacred principle of natural justice
regarding the need to hear every person before deciding his cause, has
its sources in the Torah. That was explained in the old English judgment
in R. v. University of Cambridge, where one of the judges observed that
before Adam was expelled from the Garden of Eden for eating from
the tree of knowledge, he was asked by God, "Who told thee that thou
wast naked? Hast thou eaten from the tree whereof I commanded thee
that thou shouldst not eat?" (Gen. 3:11). When Adam put the blame
on the woman for giving him of the tree of knowledge to eat, she
also was given the opportunity to explain her action. The same thing
happened in the incident of Cain and Abel. After Cain had killed Abel,
God asked Cain, "Where is Abel thy brother?" (ibid. 4:9). God himself
who is omniscient was not prepared to condemn Cain and punish him
without giving him the opportunity of putting his case.
G. Finality of Judgment
1. Reopening a Case When Judge is Aware of Error
C.A. 37/6&
GINZ v. MEIRI
(196&) 22(1) P.D. 525, 531-532
The respondent was imprisoned for failing to obey an order charging him with
th_e interim maintenance of his wife and daughter. Subsequently he had the interim
order set aside as regards the appellant, his wife. The reason given by the Court for
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setting aside the order was that it had erred in regard to the respondent's ability to
pay maintenance as well as in not taking into account the wife's waiver of maintenance
in the parties' agreement to be divorced.
Kister J.: It seems to me that in this case the learned judge acted correctly and
did well in examining the previous decision he had given. Had it remained
in effect, even though he was aware of his mistake, an injustice would have
been done, for not only is it an injustice to imprison a person undeservedly
but it is also an injustice to take money from one and give it to another
who is not entitled thereto … In Shevuot 30b it is stated that "a judge should
not appoint an advocate for what he has said," which Rashi ad /oc. explains
as meaning that "if he realises he has made a mistake and fears to admit
it, he should not bolster up his decision by bringing evidence in support
because he is ashamed to change his mind, but he should recall the parties
and issue a true judgment."
Hoshen Mishpat 17:8 sums it up the same manner. The judge here
examined the question exhaustively and reached a conclusion which appears
to us to be correct, even after the explanations which counsel for the
appellant put to us.
2. Rehearing in Questions of Age
C.A. 395/60
AMRANI v. ATTORNEY-GENERAL et al.
(1961) 15 P.D. 594. 602
The appellant had applied for a declaratory judgment regarding her age. She tried to
prove, by means of evidence that did not satisfy the judge, that she was older than
the age appearing in her identity card, in order to be entitled to an old-age pension
under the National Insurance Law. Her application was dismissed but no findings were
made regarding her age. She applied again to the same end and brought other evidence,
but the application was dismissed in limine as res judicata.
Berinson J.: Counsel for the appellant finally submitted that since the
English rules regarding res judicata can only become a part of the law
of this country by virtue of art. 46 of the Palestine Order in Council
312
CIVIL PROCEDURE
and sec. 11 of the Law and Administration Ordinance, 1948, one must
inquire whether these rules are suited to the conditions of this country
and its inhabitants. In counsel's opinion, they are not to be applied
precisely and categorically in applications for amendment of age, which
have nothing comparable in England and English case law, and the need
for which has arisen because of the special conditions in this country and
of its inhabitants, members of different waves of immigration from various
parts of the world. A reservation should therefore properly be made to the
English doctrine of res judicata; the decision should in every case be left
to the discretion of the court in the light of the special circumstances
of each instance, without being hindered by obstacles that derive from
the operation of the rules of the English res judicata. In citing in this
connection the rule of Jewish law (Hoshen Mishpat 20)-counsel hints
that it is better to be assisted by this rule which is more appropriate to
the local situation than to adhere to the severe and inflexible rules of the
English law.
3. Evidence Not to be Admitted After Judgment
C.A. 211/65
ATTORNEY-GENERAL et al. v. MAZAN
(1965) 19(3) P.D. 32, 42-44
After a previous application for declaration of age had been dismissed, the respondent
applied once again, subsequent to the enactment of the Determination of Age I.aw,
1963, and this time was successful.
Kister J.: It can be said that every judge and court must strive to clarify
the true facts and give judgment accordingly. In Jewish law, one can find
Scriptural verses and dicta of the Sages and halakhic literature on this
subject which I shall not cite at length. I shall content myself with quoting
the conclusion formulated in Hoshen Mishpat 8:3: "Every judge who
does not give true judgment causes the Divine Presence to depart from
Israel… and every judge who gives true judgment even once is as if
he repaired the entire world and causes the Divine Presence to rest in
Israel."
313
PART FOUR: REGULATION OF THE COURTS
The plea of res judicata bars the way from arriving at the truth in a
particular situation, but the law requires it for reasons of public policy:
interest rei publicae ut sit finis /ilium: nemo bis vexari pro eadem causa [the
public interest requires an end to litigation; a person should not be troubled
twice for the same cause]. A litigant must therefore be alert and plead
everything and adduce the requisite evidence in the case, for otherwise he
will be crying in vain.
Even without the doctrine of res judicata one can guard against the abuse
of court procedure, for example, by the various regulations in succession
matters. In addition, attention should be given to the view of Jewish law
as reflected in Hoshen Mishpat 20. Jewish law enables a person to bring
further evidence in opposition, but where he says he has no witnesses
and no testimony, and he is adjudged, and only then suddenly produces
evidence… it is of no avail and no attention is paid to him or his evidence.
The reason, according to the commentators, is that "he appears a fasifier
and a liar.., Initially it may not have been convenient for him to be
assisted by the evidence as long as he did not need it. Some commentators
give another reason, i.e. that a party who admits he has no witnesses is
bound by his admission… Nevertheless, even where he said that he has no
witnesses, and then witnesses arrive from abroad or evidence is produced
from documents that had been deposited by his father with others, and
these are important for the trial, he is permitted to adduce the evidence
even after judgment.
Regulations 116 and 117 of the Regulations Governing Procedure in the
Rabbinical Courts, prescribe how to proceed when the court itself fears
that it has erred in judgment or when a party wishes to produce evidence
not known during the original hearing.
4. Rehearing on Discovery of New Evidence
CA. 238/58
YARMITZKY v. MA'AYANI
(1959) ll P.D. 1497. 1498, 1502
This was an appeal against the dismissal of an application for leave to appear and
defend an action on a bill.
314
CIVIL PROCEDURE
Landau J.: As far as I know, there is no precedent in this country since
the Civil Procedure Rules of 1938, which enabled the court to rehear a
civil matter already decided by judgment, on the grounds that new facts
or new evidence had been discovered. I should incidentally mention here
that the Ottoman Civil Procedure Law permits a case to be reopened
upon discovery of new evidence but only when such evidence consists of
documents concealed by the other party: See sec. 27 of the Schedule which
replaces sec. 202 of the Law. On the other hand, Jewish law is very lenient
with a party wishing to upset a judgment by reason of a witness having
been abroad during a prior hearing (see M. T. Sanhedrin 7:8).
315
Chapter Three
CRIMINAL PROCEDURES
A. Detention
1. Detention of Suspect
Misc. 71/78
STATE OF ISRAEL v. ABUKASIS
(1978) 32(2) P. D. 240, 248-250. 251-252
Elon J.: The important subject of striking a balance between two basic
needs, i.e. protecting the freedom of the individual suspected of an offense,
on the one hand, and in certain circumstances detaining a suspected person,
on the other, is dealt with instructively by Jewish law and it is right that
we should briefly look at it.
The right to personal freedom is one of the foundation-stones of Jewish
law and it left its mark in the earliest of times in various areas of civil
law, such as the relationships between debtor and creditor, and employer
and employee (see M. Elon, Jewish Law, Part 2, 483 ff.; Elon, Freedom
of the Individual in the Collection of Debts in Jewish Law, 1 ff. and 111
ff.) How far this goes can be learned from the fact that where one voluntarily
relinquishes his personal freedom by, for instance, undertaking to go to
prison if he does not pay a debt, his relinquishment is null and void in
every respect since he has stipulated contrary to the Torah which forbids
the denial of freedom to a person (see Elon, Freedom of the Individual in
the Collection of Debts in Jewish Law, lff. and 111 ff. and Jewish Law,
Part I, 163, note 106). Alongside this basic rule there are also Mishnaic
dicta (inferred from Ex. 21: I8-19 and Num. 15:32 ff.) to the effect that
a person suspected of a capital offense should be held in custody even
before conviction. This teaches that "all those liable to the death penalty
316
CIVIL PROCEDURE
Landau J.: As far as I know, there is no precedent in this country since
the Civil Procedure Rules of 1938, which enabled the court to rehear a
civil matter already decided by judgment, on the grounds that new facts
or new evidence had been discovered. I should incidentally mention here
that the Ottoman Civil Procedure Law permits a case to be reopened
upon discovery of new evidence but only when such evidence consists of
documents concealed by the other party: See sec. 27 of the Schedule which
replaces sec. 202 of the Law. On the other hand, Jewish law is very lenient
with a party wishing to upset a judgment by reason of a witness having
been abroad during a prior hearing (see M. T. Sanhedrin 7:8).
315
Chapter Three
CRIMINAL PROCEDURES
A. Detention
1. Detention of Suspect
Misc. 71 / 78
STATE OF ISRAEL v. ABUKASIS
(1978) 32(2) PD. 240, 248-250, 251-252
Elon J.: The important subject of striking a balance between two basic
needs, i.e. protecting the freedom of the individual suspected of an offense,
on the one hand, and in certain circumstances detaining a suspected person,
on the other, is dealt with instructively by Jewish law and it is right that
we should briefly look at it.
The right to personal freedom is one of the foundation-stones of Jewish
law and it left its mark in the earliest of times in various areas of civil
law, such as the relationships between debtor and creditor, and employer
and employee (see M. Elon, Jewish Law, Part 2, 483 ff.; Elon, Freedom
of the Individual in the Collection of Debts in Jewish Law, l ff. and 111
ff.) How far this goes can be learned from the fact that where one voluntarily
relinquishes his personal freedom by, for instance, undertaking to go to
prison if he does not pay a debt, his relinquishment is null and void in
every respect since he has stipulated contrary to the Torah which forbids
the denial of freedom to a person (see Elon, Freedom of the Individual in
the Collection of Debts in Jewish Law, lff. and 111 ff. and Jewish Law,
Part 1, 163, note 106). Alongside this basic rule there are also Mishnaic
dicta (inferred from Ex. 21:18-19 and Num. 15:32 ff.) to the effect that
a person suspected of a capital offense should be held in custody even
before conviction. This teaches that "all those liable to the death penalty
316
CRIMINAL PROCEDURES
are incarcerated" (Sifre to Numbers, para. 114; Mekhi/ta, Mishpatim, 6).
Several other rules were laid down but this is not the place to enlarge
on them (see Ketubot 33b; Sanhedrin 78b; and more particularly Elon,
"Imprisonment in Jewish Law", in Pinhas Rosen Jubilee Volume (1962)
174 ff.).
As early as the beginning of the fourth century the Palestinian
Amoraim held that a judge may detain a suspect only when evidence
of the commission of the offense is available. In Y. Sanhedrin 7:8 it is
said that suspicion that "a given person killed someone" is enough for him
to be imprisoned until the trial is concluded. R. Jose expressed surprise at that, saying, "Is a person to be seized in the market place and put to
shame? Rather, when a given person kills another and there are witnesses
that he killed him, he should be held until the witnesses appear."
"There are witnesses that he killed him" means simply… that in addition
to suspicion one must show that witnesses are available to testify to the
killing. That is enough for holding him in custody and the witnesses do
not need to appear in court and testify (see Pnei Moshe ad loc.). R.
Nissim Gerondi in the fourteenth century thought otherwise: the existence
of witnesses who can testify against a suspect is not sufficient; they must
appear and give evidence, except that at this stage they need not also be
closely examined in the manner required at the actual trial.
It appears from the Yerushalmi that since witnesses have appeared and
say that a given person has blasphemed, although their evidence is not
accepted, the person is incarcerated. If, however, no witnesses appear,
there is nothing in the law to enable him to be detained and unnecessarily
shamed (Novellae of Ran to Sanhedrin 56a).
The law relating to detention and release on bail in Jewish law was
consolidated in Resp. Ribash 234-239, in the fourteenth century. Certain
communal leaders of the city of Teruel in Aragon-where a large Jewish
community existed with judicial autonomy even in many areas of criminal
law-consulted Ribash about a Jew suspected of being an informer who
was put on trial before the Jewish Court there. Many substantive and
procedural problems in connection with informing were involved, as well as
the question of whether the person could be kept in custody and on what
terms he might be released on bail… The answer of Ribash is illuminating
in its clarity and in the rules he lays down.
There is no doubt that where a person is suspected of an offense that
entails punishment, the bet din [religious court) must detain him until
they have ascertained that no punishment but only a monetary fine is
involved, and he is not to be released on guarantees.
317
PART FOUR: REGULATION OF THE COURTS
If the offender sees that he will be convicted, he will surely abscond,
and then what can the bet din do to the guarantors, what will it help
if they are proceeded against, they who have committed no offense?
"Tuvyah sinned and Zigud is punished?" (see Pesahim 113b). If [the
guarantors are to be punished] because they entered into an undertaking,
then [recall that] no one can obligate himself to something to which he is
not bound, except in money matters; he cannot do so in penal matters.
Moreover, the offender would go without punishment, and we would
not be able to observe the commandment, "And thou shalt burn out the
evil in your midst".
Furthermore, a person suspected of a penal offense ought not to be
allowed to go about freely in public whilst the bet din is considering his
case. That is what we learn in Mekhilta, Mishpatim 6: "Then shall he
who smote him be quiet" (Ex. 21: 19). Can he give a guarantee and be free
to go about? Scripture tells us: "If he arise again and walk abroad"
(ibid.) which means that the confessor is imprisoned until the victim is
healed. Hence, if the court thinks that there is substance in the words
of the complainant and if it becomes clear that the offender is liable
to bodily punishment, he is not to be allowed to go free on guarantee.
The following are therefore the rules laid down by Ribash:
(a) imprisonment is only entailed when the suspected offense carries
with it "corporal punishment", i.e., death or imprisonment, but not a
mere fine;
(b) a bet din should order detention of a suspect only when "there is
substance in the words of the complainant": in modern terms, when the
evidence in the hands of the police gives rise to reasonable suspicion
against the person the police suspect of being involved in the given
offense (per Agranat P. in State of Israel v. Ben-Meir (1973) 27(1)
P.D. 502);
(c) the grounds of detention are
(i) to assure that the suspect will stand trial,
(ii) to ensure that if found guilty he will bear his punishment, and
(iii) to prevent the free circulation of a person suspected of a serious
offense whilst the court is considering his case. This last ground
can be explained from the viewpoint of "public opinion", which
would wonder about the inconsistency of a suspect going about
318
CRIMINAL PROCEDURES
freely whilst the hearing of a serious offense is pending. We may
also take into account other reasons common among us, that a
"freed" suspect may tamper with the evidence, intimidate witnesses
and create public concern about the commission of further offenses
and the like…
Thus far, I have not pointed out as a reason for my decision the personal
circumstances of the respondent, since these should not be determinative,
but they also certainly add weight to my decision not to grant the State's
appeal. As I said at the outset, the woman is of mature age and the mother
of five children, the youngest of whom is aged five years and the oldest
sixteen. Since her husband is also in custody, there is no one to look
after the children. To this "added weight" I would point to a further
reason which is also a consideration for my dismissing the appeal: what is
involved is the imprisonment of a woman, and although it is fundamental
that all are equal before the law in every respect – "Scripture has made
man and woman equal regarding all the penalties of the Torah" (Baba
Kamma 15a) – there are situations in which the feelings of a woman are
more harshly affected than those of a man, and detention or imprisonment
is one of these. That is indicated at least, if not proved, by the observations
of Maimonides, based on the talmudic rule regarding the case where a
man and woman fall into captivity and funds are insufficient to redeem
both of them. "The woman takes precedence over the man in respect
of food, clothing and ransom, since a man may well go around asking
for charity but not a woman whose feeling of shame is great" (M. T Matnot
Aniyim 5:15). In Jewish law there also exist special and ameliorating
provisions regarding the imprisonment of women convicted by a Jewish
court and held in a prison supervised by the Jewish community and staffed
by Jewish warders: such prisons existed in different parts of the Diaspora
which enjoyed judicial autonomy (see Elon, "Imprisonment in Jewish Law"
ubi supra; Elon, Jewish Law, Part 2, 664 ff.). This regard for the feelings
of a woman "seized in the market place" in the words of R. Jose, and
put under detention, is equally pertinent today. Her shame is greater than
the shame of a man. And that may serve in some way as an additional
ground for weighing the balance in favour of her release.
319
PART FOUR: REGULATION OF THE COURTS
Miu. 172/81
STATE OF ISRAEL v. LUBNIOV
(1981) 35(4) P.D. 780
The issue in this application was whether an indictment for murder setting out facts
that connect the suspect with the act of murder is enough to prevent his release on bail
under sec. 31 of the Criminal Procedure Law, 1965.
Elon J.: With the enactment of sec. 31, no question of practice from
which one may diverge in special circumstances arises any more. The
Law is peremptory and the legislature has again shown that murder as
such is a grievous offence. ("There is nothing which the Torah is more
strict about than the shedding of blood … which involves destruction of an
orderly world": M.T. Rotze'ah 1:4 and 4:9.) This prevents the release of
the person accused, and no need exists for any further grounds, such as
fear of influencing witnesses, previous convictions, safe-guarding public
order and the like, that are taken into account when exercising discretion
over whether to detain a suspect or defendant in other cases. The reason
seems to be that any one charged with so serious a crime "ought not to
be allowed to circulate whilst the court is considering his case" (Resp.
Ribash 236; see more expressly State of Israel v. Abukasis above).
Misc. 691 / 82
SURAH v. STATE OF ISRAEL
( 1982) 36(4) P.D. 10, 12-13
This was an appeal against the remand of the appellant for ren days on a charge
of manslaughter following a road accident, of which rhe prosecurion had prima
facie evidence.
Elon J.: With regard to only two kinds of serious offences – murder and
serious state security offences for which the penalty is life imprisonment
– did the legislature indicate that reasonable suspicion is sufficient not
only to detain a person suspected of being involved but also to prevent
his release, without need for the further grounds that witnesses might be
influenced or that the commission of additional offences is feared or like
considerations that are taken into account in releasing a suspect on bail
or a person charged with other offences (sec. 34, Criminal Procedure Law
(Consolidated Version), 1982; State of Israel v. Lubniov above). It seems
320
CRIMINAL PROCEDURES
that the reason for this special provision regarding a suspect or person
charged with such serious crimes is that "it is not right that he should
circulate freely in public whilst a court is considering his case" (in the words
of Ribash, dealing with release on bail under Jewish law: Resp. Ribash 236;
see also State of Israel v. Lubniov above, at 785 and State of Israel v.
Abukasis above, at 249 ff.).
Mi<c. 22/83
KRAUSS v. STATE OF ISRAEL
(1983) 37(1) P.D. 365, 368-369
The issue here was the propriety of the detention of the appellant under an indictment
containing thirteen counts relating to bribery, blackmail, fraud, breach of confidence,
theft and forgery committed during the course of one year when he was serving as
chairman of the Tel Aviv University Students Union.
Elon J.: It seems to me that when murder and the like is not involved
– express statutory provision exists regarding detention until the end of
the proceedings where a serious crime is concerned, which by its nature and
the circumstances raises fears of disruption of legal process or of danger
to public order – a person is not to be confined before he is duly convicted
unless the prosecution proves the existence of such fear and danger. When
these exist, '"It is not possible for a person suspected of a serious offense to
circulate freely whilst the court is considering his case" (State of Israel v.
Abukasis above, citing Ribash). But when these do not exist, the basic
rule is that a person's freedom is not to be denied before he is adjudged.
Accordingly, when such fear and danger do not exist, even if the offense
is extremely serious, such as breach of confidence by a bank clerk and the
like, we may not, in my opinion, detain the person before trial because
of "what people will say". Far be it from me to deride this important
consideration in deterring offenders and fighting crime, which we are
commanded to do, but this justified legal policy is a matter for the legislature
to deal with and it should provide that since crime and criminals have
increased, prejudicing public confidence and property, it prefers in the
light of contemporary and local needs to keep these elements in custody…
It is indeed true, as the learned judge said, that we learn from our Sages that
"a bet din [religious court] may administer flogging and punishment, even
without authority from the Torah; not, however, because of transgressing
the Torah but in order to set a fence for the Torah_ __ not because the
321
PART FOUR: REGULATION OF THE COURTS
penalty is deserved but because the exigencies of the hour require it"
( Yevamot 90b; Sanhedrin 46a). This was because lawlessness had spread
(Rashi to Sanhedrin loc. cit.). The task, however, was given over to the bet
din, which acted as legislature in making takkanot [regulations] as well
as judge. By virtue of this principle, Jewish criminal law and procedure
underwent considerable development, having regard to social and moral
changes that had occurred. It is otherwise in a system that distinguishes
between the legislature and the judiciary. A basic innovation such as the
detention of people because of contemporary exigencies demands legislative
enactment.
Misc. 862/85
STATE OF ISRAEL v. BEN-UOR et al.
(1985)39(3) P.D. 441,447
This was an appeal against a release on bail of the respondents who were charged with
a number of offenses offraud and conspiracy.
Elon J.: The State submits that it is not right, in view of the seriousness of
the offenses, to allow the defendants to circulate freely as long as the trial
has not been concluded. This subject has arisen repeatedly in the courts
and has its source in the Responsa of Ribash no. 236. (See also State of
Israel v. Abukasis, above; Surah v. State of Israel, above; Krauss v. State
of Israel, above, etc.). This is something quite different from the situation
where the court, under its procedural rules, adjourns a hearing for a
lengthy time-which may continue beyond what is commonly reasonable,
and which is undefined-in order to examine and discuss the case. Delay
in sentencing, even if short, is a difficult matter both from the viewpoint
of the defendant and from the viewpoint of the judiciary and especially so
under Jewish law (see Mekhilta, Mishpatim, 18; M. Avot 5:9; Shabbat 33a).
That is equally so with the present respondents, even though the court is
compelled to act in such a manner by reason of some provision of the
criminal procedural law. We may not deny personal freedom in addition
to the delay in sentencing.
322
CRIMINAL PROCEDU RES
Misc. 15/ 86
STATE OF ISRAEL v. ZUR
( 1986) 40(1) P.D. 706. 713-714
Elon J.: Since the above-mentioned decision in Misc. 290/76 (Yadin v.
State of Israel (1977) 31(1) P.D. 671) there has been a change in the
legal system of the State of Israel. The Foundations of Law Act, 1980,
which "constitutes one of the basic laws of the State of Israel and part of
its legal infrastructure" was passed. According to this law, the principles
of justice, equity and peace of the heritage of Israel (Foundations of
Law Act, sec. I) serve as "the infrastructure and the basic principles of
the entire legal system of the State" (El.A. 2/ 84 Neiman v. Chairman of
Central Elections Committee (1985) 39(2) P.D. 225). The right to personal
liberty is one of the cornerstones of Jewish Jaw, and it is a major rule
in that system that every man is assumed to be innocent as long as he
has not been proven guilty. As a result, we find that in Jewish law, one
may only detain a person on suspicion of the most serious crimes (Resp.
Ribash no. 236 regarding a person suspected of murder or of informing on
the whole Jewish community) or where there is a possibility that not doing
so will pervert the course of justice (Resp. Ribash lac cit.; Misc. 71/78
State of Israel v. Abukassis (1978) 32(2) P.D. 240; Misc. 1044/ 82 State
of Israel v. Molkho (1983) 37(1) P.D. 78; Misc. 691/82 Surah v. State of
Israel (1982) 36(4) P.D. IO; Misc. 22/ 83 Krauss v. State of Israel (1983)
37(1) P.D. 365; and Misc. 693/84 State of Israel v. Leviatan et al. (1986)
40(1) P.D. 544). There is another major principle in the area of Jewish
law, i.e. "You shall do no unrighteousness in judgment; you shall not
respect the person of the poor nor favour the person of the mighty; but in
righteousness shall you judge your neighbour" (Lev. 19:15). In the same
way that this fundamental principle has served as the basis for decisions
by this Court outlawing the favouring "of the person of the mighty"
and dealing leniently with him by releasing him from detention following
a guilty verdict (Misc. 118/79 Rechtman v. State of Israel (1979) 33(3)
P.D. 45), so it must senre as the basis for not perverting the judgment of
the "mighty" by dealing more strictly with him than with the "poor" in
the matter of pre-trial detention. This interpretation of the verse is cited
by the "great eagle", Maimonides, in his codification of Jewish law (M. T.
Sanhedrin 21:1): "It is a positive commandment for the judge to judge
righteously, as Scripture states, 'In righteousness shall you judge your
neighbour'. What does righteousness in the judicial process consist ofl
It is the equal treatment of both parties throughout the trial." If this
is the position with respect to legal procedure and the conduct of the
323
PART FOUR: REGULATION OF THE COURTS
trial, a fortiori ought it to be the case in relation to substantive matters
such as the deprivation of personal liberty pending trial.
2. Detention of Women
See: STATE OF ISRAEL v. ABUKASIS, p. 316.
B. Delay in Judgment and in Sentencing
I. Delay in Judgment
c,.A.
188/77
WERTHEIM v. STATE OF ISRAEL
(1978) )2(2) P.D. 225, 234, 242
The issue in ·this appeal was whether a conviction for a traffic offense is to be upheld
in view of the delay in proceedings before the Magistrate.
Elon J.: This important subject, known under the general name of innui
din (delay of sentence), of which more later, has recently been considered
at length and in depth, with all its implications, by Agranat P. and Witkon
J. in Cr.A. 125/74, 152/74 Mirom v. State of Israel (1975) 30(1) P.D. 57.
There a broad outline is given of the case law of this Court-and my friend
Etzioni J. has now supplemented it by reference to the cases that have
since accumulated-and to a considerable degree, the extensive American
jurisprudence on this subject. It seems to me that we ought to examine the
matter, if only in outline, as it is reflected in Jewish law.
Three legal technical terms are repeatedly used in respect of this
subject in Jewish law – halanat din (postponing judgment), hahmatzat
324
CRIMINAL PROCEDURES
hadin (reserving judgment) and innui din (delay of sentence). The first
two terms have a positive connotation, but the third – innui din – is
completely negative. Let us consider them in the given order.
Halanat din: the court is instructed to do this when dealing with capital
offenses. Once the court has begun bearing a case and has found that the
defendant should be convicted, it ought not to convict him on the same
day but must postpone pronouncement of its decision to the following day.
Thus, M. Sanhedrin 4: 1 states: "Civil cases are concluded on the same day
whether for acquittal or for condemnation. Capital cases may be concluded
on the same day for acquittal but only on the next day for conviction."
The reason for the latter rule is, according to Rashi (Sanhedrin 32a),
in case something in favour of the defendant is discovered during the
night. The obligation of ha/anal din (Sanhedrin 35a) exists not only where
the court makes its decision to convict on the day trial commenced but
"where all do not agree, they argue the matter even for several days
until agreement is reached, and thereafter judgment is deferred and on
the morrow the case is concluded" (Meiri, Bet haBehira ad loc). This
is therefore an additional aspect in which capital cases differ from civil
cases as regards the special consideration and great care required before
convicting a defendant (and capital law includes any imposition of physical
punishment and deprivation of liberty: M. T. Sanhedrin 11 :4).
In this regard the Talmud has an instructive idea of particular importance
to the present case. The idea is mentioned in connection with the following
rule. Just as a duty exists to postpone judgment overnight, there is a
duty not to postpone it for a longer period, in case the judges forget
the arguments advanced for acquittal or conviction. For this reason trials
are not held on the eve of the Sabbath or Festivals (M. Sanhedrin 4:1),
since if the judges agree to convict on the same day and are required
to postpone judgment, the postponement would have to extend over two
nights and the trial could only be concluded on the morrow of the Sabbath.
The Talmud wonders at this "forgetfulness", since two court scribes record
the views of each judge during their discussion of the case among themselves
and thus the views of each can be ascertained from the records kept, without
fear of forgetfulness. The answer given is that only the actual words used
are recorded but the spirit of the argument may not be recalled through
the written word (Sanhedrin 35a; Rashi and Meiri ad Joe.).
Hahmatzat hadin: This term also has a positive connotation. It is the
judge's duty to reserve judgment ("just as we leave the dough to ferment"
– Yad Ramah to Sanhedrin 35a [a play on the word hametz]) as may be
necessary to bring out the truth. This term originates in the observations of
Rava (ibid.): "Blessed is the judge who reserves his verdict" (derived from
Is. 1: 17 – asheru hamotz [ relieve the oppressed]). Although originally
325
PART FOUR: REGULATION OF THE COURTS
used in respect of reserving judgment, the underlying content of the term
is to be found in many dicta of the Tanna 'im and Amora 'im throughout
the Talmud, and the requirement of hahmatzat hadin, and of clarifying
the case before deciding it, was adopted in all areas of the law, criminal
and civil. One of the three dicta attributed to the Men of the Great
Assembly is: "Be deliberate in judgment" (M. Avot I: 1). The judge is
told: "If judgment is as clear to you as morning, pronounce it; if not, do
not pronounce it" (Sanhedrin 7b). Resh Lakish understood the Scriptural
injunction, "and judge righteously" (Deut. I: 16) to mean: "Consider the case
properly and then give your verdict" (Sanhedrin 7b). These observations
are repeated in all the halakhic codes. Hoshen Mishpat 17:7, reads as
follows:
The judge must hear the submissions of the parties and go over them in
order to put the parties at ease so that they do not think that the judges
argued the matter without understanding their own submissions … and
moreover, the judges actually may not have comprehended well such
submissions which should be repeated to the parties (Serna ad foe.,
para. 15) since it is written (I Kings 3:23) "Then the king said 'The one
sayeth, this is my son that liveth and thy son is the dead'. And the
other sayeth, 'Nay, but thy son is the dead and my son is the living… '":
he establishes what is just in his heart, and then pronounces judgment.
(According to Serna if the judge sits alone he must be certain in his own
mind and if a bench of three sits, they must be certain after discussion.)
And elsewhere (Hoshen Mishpat 10:1):
The judge must be deliberate and reserve judgment until, after careful
consideration, it is as clear as day to him; the haughty who rush into
judgment before they have well searched their minds … are foolish and
wicked.
Maimonides adds (M. T. Sanhedrin 30:7): "We are so commanded by the
Sages 'Be deliberate in judgment' as it says in Job (29: 16): 'And the cause
of him that I knew not I searched out.' "
The duty to reserve judgment in order to arrive at a truthful decision
has always been regarded by dayanim (judges) as a primary duty. It is
frequently mentioned in the responsa literature and here I shall quote only
one such passage taken from Resp. Ribash 491:
All the other pretexts about which you write I do not at all consider
capable of voiding the deed; but the dayan should reserve judgment
and consider it very well so as to come to the truth of the matter and
give truthful judgment.
326
CRIMINAL PROCEDURES
Innui hadin: This concept is obviously negative in significance and various
meanings attach to it in Jewish law. Let us examine them briefly.
The first, the classic and best known, occurs in fact in the area of criminal
law, where it means delay in carrying out the sentence. For example,
where the Sages thought in a particular case of a person condemned
to death, that the verdict should not be carried out immediately upon
its being given in order that the matter might be publicized, R. Yehudah
said that "the judgment of (the rebellious elder) is not delayed but he is
executed immediately" (M. Sanhedrin 11 :4; see also Sanhedrin 38a, 112a;
Arakhin 7a). In this sense, innui din is delay after, but not before, verdict.
"So long as the case is not concluded, there is no innui din, since one
always hopes for acquittal; but once the case is concluded, one awaits
death and that would be innui din" (Rashi to Sanhedrin 35a).
A second meaning of innui din is much wider and more embracing both
as regards the length of the judicial process and as regards its application
to civil law as well as to criminal law. M. T. Sanhedrin 20:6 observes:
'Ye shall do no unrighteousness in judgment' (Lev. 19: 15) means
miscarriage of justice, acquitting the guilty and condemning the innocent.
So also, delaying judgment and enlarging on matters that are obvious in
order to cause pain to one of the parties falls within the rule of not doing
injustice (cf. Maimonides' Commentary to the Mishnah, Avot 5:9).
Such innui din may occur throughout the judicial hearing, both as to
the need "to give judgment as soon as it is ascertained" (Tur and Shulhan
Arukh, Hoshen Mishpat 17:11), when "it is known which way the law
will go and one delays and does not decide it" (R. Ovadiah miBertinoro
M. Avot 5:9) and as to any unnecessary delay. "Innui hadin occurs when
the judges delay the case for no good reason, when after having ascertained
the law, they postpone judgment" (Rashi to Shabbat 33a).
A third, far-reaching meaning of innui hadin, which applies to both
civil and criminal law, is delay in hearing the case. It may be trivial or
considerable. It is exaggerated in the example of the Sages given, as is
their wont, in the form of an aggadah (legend).
When R. Simeon and R. Yishmael were being led out to be executed [at
the decree of Rome], R. Simeon said to R. Yishmael, "Master, my heart
fails me for I do not know why I am to be killed". R. Yishmael said to
him, "Did it never happen that a man came before you for a judgment
or with a question and you let him wait until you had sipped your cup
or had tied your sandals or put on your cloak? And the Torah has
said, 'If thou afflict in any wise' [Ex. 22:22] whether it be severe or
slight." Thereupon, R. Shimon said to him "You have comforted me,
327
PART FOUR: REGULATION OF THE COURTS
master" (Mekhilta, Nezikin, 18; the verse cited is construed as applying
to any person and not necessarily to the widow and the orphan.).
It follows from the above that Jewish law has two objectives regarding the
conduct of a trial, its hearing and determination. With respect to the first,
which is foremost in importance, the judge is commanded to be deliberate
in his judgment, to be sure of it being right before he decides, not to jump
to conclusions before the matter is well gone into. He must defer judgment
until the matter has matured in his mind; this is so both in civil and criminal
law. In the case of the latter something more is required, i.e., postponing
judgment until the final verdict, since criminal conviction is involved and
argument in favour of acquittal may yet be found. Regarding the second
objective, without prejudicing a just and full hearing of the case, the judge is
ordered not to put off and delay trial, both as regards its final determination
when it is already clear to him how the law should go and as regards the
hearing itself; delay in fixing commencement of trial is wrong, sometimes
in a minor way and sometimes in a major way.
One further observation. We have found that Jewish law provides clearly
and unequivocally that the judge must give judgment immediately upon the
matter being clear to him (Hoshen Mishpat 17: 11), similar to sec. 164 of
the Criminal Procedure Law, 1965, (and consider reg. 213 of the Civil
Procedure Regulations, 1963). On the other hand, Jewish law is content with
a general provision regarding the course of the hearing, i.e. that deferment
and delay should be avoided; it contains no unequivocal, restrictive
provision regarding the hearing of evidence, once trial has commenced
and regarding continuity of trial day after day until its determination,
similar to that of sec. 115 of the Criminal Procedure Law (and reg. 152 of
the Civil Procedure Regulations, 1963). The latter provision, as we know,
is "very unfortunately not observed in practice in many criminal cases, if
not in most" (per Agranat P. in Cr. A. 125/74, 152/74 Mirom v. State of
Israel (1975) 30(1) P.D. 57.
It also seems that objectively – in view of the burden on the courts
and pressing matters that arise from time to time, call-up to reserve army
service of the parties and counsel and the like-there is hardly a judge who
can avoid putting matters off. It might be better to formulate the provision
regarding the taking of evidence in more flexible terms to conform to the
actual situation, which is a matter of necessity not to be scorned, and
so obviate justified complaints concerning the legitimate conduct of a trial
and the observance of a law that we know in advance is not heeded. It
goes without saying that a more flexible formulation will neither in any
way release the courts from the duty not to delay trial nor will it remove
the prohibition of innui hadin.
328
CRIMINAL PROCEDURES
Now to the question posed at the beginning of our discussion: Does
innui hadin entail moderation of the punishment imposed upon a guilty
person or even, going further, setting aside the conviction? This Court has
already held that where innui hadin oversteps reasonable bounds – and
we are speaking of offences that are not "abhorrent", such as grievous
violence, harming state security and the like – i.e. where delay involves
the defendant suffering part of his punishment, then fear of judgment and
verdict long postponed are considerations for ameliorating the verdict.
Were that the argument in this appeal, we would certainly respond to it
for these reasons alone. The offence of which the appellant was convicted
is injury to a pedestrian due to lack of care-excessive speed in driving
-and almost five years have elapsed from commission of the offence until
the Magistrate's Court gave judgment. The appellant, however, argues that
his conviction as such should be set aside for two reasons-because trial
from its commencement in June 1972 until its determination in May
1976 was conducted in a manner of innui din, contrary to secs. 115
and 164 of the Criminal Procedure Law, and because, after such a lapse
of time, the judge could not possibly remember the evidence presented
to him in such a way as to relate to it properly and form the necessary
impressions.
It seems to me that, in principle, it is unacceptable to set aside the
conviction itself on the grounds of innui hadin as a result of non-observance
of secs. 116 and 164. With all respect I concur in the view of Agranat
P. in Cr.A. 152/74 Mirom Ltd. v. State of Israel (1975) 30(1) P. D. 57, and
in the remarks of my friend Eztioni J. An offence which has been properly
proven, irrespective of whether it is serious or not, entails conviction, and
the legislature provided what it did in secs. 115 and 164 without including
the sanction of annulment of the conviction. Jewish law also, which warns
strongly against innui hadin, provides a purely moral-religious sanction,
which does not include setting judgments aside. "The sword comes into the
world for delay of justice" (M. Avot 5:9). This is measure for measure, since
the purpose of the law is to save the oppressed from the oppressor, and
innui hadin and deferment of decision causes the oppressed to grow angry
with the one who oppresses him unlawfully and to take the law into his
own hands and strengthen the "sword", i.e., social violence (see Meiri ad
foe.; Shabbat 33a). Where indeed does the possibility of setting conviction
ac;ide figure? When the duty exists to reserve judgment and the court ignores
that duty and executes judgment, a miscarriage of justice is involved.
"A court that does not reserve a guilty verdict in capital matters is a
murderer" (Meiri to Sanhedrin 35a), and "it is as if it had killed the
accused unlawfully" (Yad Ramah ad foe.). Because the non-postponement
of judgment denies the court the possibility of further consideration and
329
PART FOUR: REGULATION OF THE COURTS
of finding argument for acquittal, the case has not been gone into as
ful1y as it might and the conviction is unlawful (see also Resp. Devar
Avraham, Part 2, 34). But innui hadin as such, i.e., delaying the hearing
and decision, does not entail voiding of the conviction itself so long as
it does not affect proper proof of the offense.
As against all this, in the case before us, the conviction should be set
aside for the second reason of the appellant, because, as my friend Etzioni
J. put it, the delay has Jed to a miscarriage of justice. Every record and
note is deficient because, as I have already said, the record contains only
the actual words uttered but not the spirit of the argumentation. To the
extent that the interval between the taking of evidence, the consideration
of the case and pronouncement of judgment is protracted-and proof rests
on the impressions recorded in the notes of the case-suspicion may grow
that the offence for which the defendant was brought to trial has not been
proved. That indeed occurred in the present case. From the admission
made by the appellant to the police, in which it was said that he drove at a
speed of 40 to 50 km an hour, it is not at all clear whether that was when
the accident happened or just before it; again the sketch made by the
witness is also surrounded by doubt, as Etzioni J. has explained. Since
these two matters alone were the foundations on which conviction rested,
once the proof is not accepted because of its doubtful nature, the conviction
must also be set aside.
2. Delay in Sentencing
See: WERTHEIM V. STATE OF ISRAEL, see previous, p. 324.
M;sc. 693/84
STATE OF ISRAEL v. LEVIATAN eta/.
(1986) 40(1) P.D. 544, 551-552
Elon J.: The two respondents were detained for the duration of the
proceedings. The reason for their detention is not that their release on
bail might prejudice the legal proceedings or constitute a danger to the
public, but rather the seriousness of the offences which they are alleged
to have committed, and the circumstances under which they occurred.
Since it is now evident that the respondents are facing – through no
330
CRIMINAL PROCEDURES
fault of their own – a severe and highly unusual delay in their trial,
and when we reconsider-as we are bound to do by law-the justification
for detaining the respondents pending trial for a period of almost a year
without any discussion of their case, there is no doubt that the abovementioned considerations of 'gain and loss" lead us to the conclusion
that the respondents should have their liberty restored and should be
released from detention. Counsel for the petitioner has argued that it
would not be right, in the light of the seriousness of the present offences,
for the respondents to "walk about freely" as long as their trial has not been
concluded. This argument, which has often been cited by this Court, and
the origin of which lies in the words of R. Isaac b. Sheshet Barfat (Resp.
Ribash no. 236; and see Misc. 71 /78, State of Israel v. Aboukassis (1978)
32(2) P.D. 240; Misc. 1044/82 State oflsraelv.Molkho (1983) 37(1) P.D. 78,
83; Misc. 691/82, Surahv. State of Israel (1982) 36(4) P.D. IO; Misc. 22/83,
Krauss v. State of Israel (1983) 37(1) P.D. 365, etc.) applies only to a person
accused of the most serious crimes (e.g. murder or informing on the whole
Jewish community). In such circumstances it is indeed "wrong that he should
walk about freely as long as the bet din (religious court) is examining and
discussing his case." It does not, however, apply to a situation in which the
court, for reasons of a purely procedural nature, interrupts the trial for an
unusually long and indeterminate period in order to discuss the relevant
legal issues in a more extensive fashion. The unjustified protraction of
judicial proceedings is a very grave matter both for the accused and for the
legal system, and it is irrelevant whether the delay is slight or protracted …. It
is a particularly grave matter in the context of Jewish law (see Mekhilta
Mishpatim, Masekhta deNezikin ch. 18; M. Avot 5:8; Shabbat 33a and
see Cr.A. 188/77 Wertheim v. State of Israel (1978) 32(2) P.D. 225, 233
ff.). As far as the respondents are concerned, the present case is one
of unjustified delay in the trial, notwithstanding that the court may be
compelled to adopt such a course by virtue of a particular rule of criminal
procedure. We may not add deprivation of personal liberty to unjustified
delay in the trial. The argument put forward by the State Attorney and
supported by the Vice-President of the District Court that the respondents
should continue to remain in custody until some progress is made in the
trial of the two witnesses (and the other accused persons) is unacceptable
to me. There is neither reason nor justification for depriving someone of his
freedom for a few more months solely on the grounds that he has "only
been in custody for three months", and especially since both logic and legal
experience dictate that the trial of the witnesses will take almost a year.
This is a classical case of an "advance" on a prison sentence, of punishment
pending trial, and we are neither authorized nor permitted to have any part
in it.
331
PART FOUR : REGULATION Of THE COURTS
C. The Hearings
I. Duty of the Court to Correct Indictment
Cr.A. 1/ 48
SYLVESTER v. ATTORNEY-GENERAL
(1948) I P. D . 5, 19
Smoira P.: It is also important that people should see that judges "enter the
throne room" where wrongdoing is judged and punished and do not "tarry
in the corridors" giving judgment on the technicalities of the indictment
alone, be it complete or deficient or void. Far be it from me to encourage
those lawyers who are negligent in properly drawing up charges. It is
their duty to examine the indictment most thoroughly and see that it does
indeed relate to an offence. But the courts have not only a right but also
a duty to correct what the prosecutors have done incorrectly, provided that
they do not thereby prejudice the principles of the rule of justice.
When, for example, I see from the conclusion of the judgment of the
Chief Justice in R. v. Hughes, (1927-28), 20 Cr.App.R. 4, 5, 9 that he
unwillingly set aside the charge sheet although on the merits and morally
that case had another aspect, I take leave to say that one should avoid
as far as may be possible such consequences that may perhaps satisfy formal
legal reasoning but not one's sense of justice and equity. In my opinion
our criminal procedure requires the courts to follow these principles and
facilitate that process, and all that is necessary is to employ its provisions
properly.
I have found it appropriate to utter these words not because I think
they contain anything new in the law but because at this moment of the
establishment of our State, it is right to reiterate two leading principles:
"Then shalt thou inquire and make search and ask diligently" (Deut. 13:6).
The present appeal is an instructive example of two features which, in
my view, are prerequisites for properly-conducted criminal hearings, i.e.,
the utmost care in examination, cross-examination and evaluation of the
evidence, and giving the defendant the benefit of all doubt, since all are
presumed innocent. Again, formality should be kept to a minimum so
that the accused does not go free simply thanks to some formal defect
which, in truth, has nothing to do either with him or with what he
did.
332
CRIMINAL PROCEDURES
D. Finality of Judgment
I. Acquittal and Retrial as Res judicata
H.C. 224/73
HAREL v. JUDGE GJLADJ et al.
(1974) 28(1) P.D. 337, 343-344
This was a petition against a civil examining magistrate who had held himself to be
unable to enquire into the death of a soldier during military service, after a military
examining judge had considered the matter and given directions that an indictment be
presented.
Kister J.: We understand the feelings of the petitioner whose son died and
who believes that it was murder and not merely the result of negligence,
and who wants the accused to be convicted of this offence and not a
lesser one. Although society also endeavors to uncover offenders, bring
them to trial, establish the seriousness of their offences and punish them
accordingly, the matter has a second side to it, i.e. the requirement of
justice, that an innocent person should not be convicted because of some
error and be punished for what he has not done. Jewish law displays
particular caution in this matter and tends not to convict and punish
a person on supposition: "It is better and more desirable to exempt a
thousand wrongdoers than to kill one innocent person" (Maimonides,
Se/er haMitzvot Negative Commandments, 290).
Modem law does not go as far as Jewish law: even where the death penalty
is involved it is possible to sentence a person to death on circumstantial
evidence. However, the leading rule, in Israel as well, is that if the offence
has not been proved beyond all reasonable doubt the accused must go
free.
The petitioner did all he could to bring the truth to light, but the decision
on what was proved does not lie in his hands but in the hands of the
judicial authorities. After the accused were convicted, there is no place for
applying to reopen proceedings.
It would be worthwhile to mention here the following guiding legal
principles:
(a) A person is presumed to be innocent until proven guilty, even when
brought to trial.
333
PART FOUR: REGULATION OF THE COURTS
(b) Where a person is acquitted of the crime of which he has been
accused, or is convicted of a lesser offense, then, subject to any right of
appeal that may exist, it is res Judicata and he is not to be tried again
for the same act, unless some special statutory provision permits that to
be done.
This is also the case under Jewish law:
Our Rabbis taught: whence do we know that if the accused leaves the
court guilty and someone says: 'I have something to say in his favour' that
he is brought back? Scripture tells us 'The guiltless slay thou not.' And
how do we know that if he leaves the court not guilty and someone says,
'I have something to say against him' he is not brought back? Scripture
tells us 'And the righteous slay thou not' (Sanhedrin 33b).
(c) Where a person is not to be charged again, there is no place for
charging and sentencing him indirectly by bringing him before a tribunal
of inquiry or an examining magistrate, even if these bodies will not impose
punishment but will be content solely with determining his guilt.
It should be added that the citizen, though personally affected or a relative
of the one injured, is expected to respect the court's decision; this is a rule
of ancient standing, and I will recall the attitude of Jewish law in this
regard. M. Sanhedrin 6:6, states that after a person had been sentenced
to death and executed, "the relatives came and greeted the judges and
the witnesses, as if to say 'We have no ill-feelings against you, for you
gave a true judgment.' Tiferet Yisrael ad Joe. explains this as meaning
that they wish to utter these words but refrain from doing so expressly,
out of respect for the dead and also because it is difficult for them out of
self-respect."
If we expect the relatives of a person lawfully convicted, who denied his
guilt, to act in this manner, a fortiori relatives of a murdered person are
expected to act so when the one accused of the murder is not convicted,
even if acquitted only because of a doubt.
For these reasons we have decided to deny the petition.
Cr.A. )84/78
STATE OF ISRAEL v. MISHALI
(1978) 32(3) P.D. 245, 250
This was an appeal against a lenient sentence for fraud and theft committed whilst a
suspended sentence was inforce.
334
CRIMINAL PROCEDURES
Elon J.: It is noteworthy that according to Jewish law, a person found not
guilty of a criminal offence will not be retried and convicted. Maimonides
in M. T. Sanhedrin I0:9 sums up the law as follows:
When a court has erred in a criminal matter and has found an innocent
person guilty, and then a reason occurs to them to controvert the
judgment and find him innocent, the judgment is set aside and he
is retried. Where, however, they release in error a person guilty of
a capital offence, the judgment is not reversed and he is not retried.
This far-reaching principle is not found in our criminal law, according to
which we must adjudicate, but the general idea it embodies finds expression
in the accepted principle: that the appellate court should not exhaust the
severity of the law in an appeal by the State against a lenient sentence, and
in the further principle which we also follow that an appellate court will
not interfere in the discretion of a lower court regarding sentence unless
such discretion is deviant and unreasonable. This latter principle should,
in my opinion, be zealously followed when an appellate court is asked
to increase the severity of a sentence passed in a lower court.
2. Rehearing on New Submissions in Capital Cases
H.C. 320/80
KUASSMA et al. v. MINISTER OF DEFENCE et al.
(1981) 35(3) P.D. 113, 125
The appellants were deported to Lebanon under the Emergency Regulations, 1945,
without being allowed to apply to the statutory advisory committee, on the grounds
that their immediate deportation was urgent in order to avoid a dangerous escalation
of the threat to security.
Cohn D.P.: One who claims a right and petitions this Court for relief
is told to state his case. If it emerges that there is nothing in his case,
his right is rather abstract. It is a leading rule in this Court that orders
are not to be made purely for glorification of the law when no real
practical purpose is served. That does not mean, however, that this Court
will turn itself into a committee or other authority which the person involved
335
PART FOUR: REG ULATION OF THE COURTS
can petition to argue his right and have it considered on its merits one
way or the other. If he has or may have something to submit, it is
his right to put his submission to the competent committee or authority
and not only to this Court. I agree, however, that the question whether or
not he has something to submit is not to be determined automatically or
mechanically on the grounds of what he states. If he makes a statement,
even a silly one, he has fulfilled the duty to submit; and it is for the court
to say whether there is any merit in it. This is like the right of a person
sentenced to death to say that he has something to state in his own favour
and having said so a number of times he is retried, "provided that there
is substance in what he says" (M. Sanhedrin 6:1). How can we know that
there is substance in what he says? Two learned men accompany him to
the place of execution and they decide whether his statement has substance
(Sanhedrin 43a and Rashi ad loc.). The same applies to the right to make
submissions to an administrative authority. The court must find some
substance, even if only prima facie, before it will recognize the right. The
court cannot be expected to do so when the submission is futile and on
the face of it a figment of the imagination.
3. Rehearing for a Convicted Person
C.A. 572;74
ROITMAN v. UNITED MIZRAHI BANK LTD. et al.
(1975) 29(2) P.D. 57, 58. 64
The appellant claimed damages for false evidence and conspiracy to give false evidence.
The issue was whether local law recognised the tort offalse evidence.
Kister J.: The principle of res judicata should properly be mentioned here.
This principle, which is intended to give finality to litigation, is not found
in Jewish law, at least not to the same extent. Where a person has been
sentenced to death he can ask that he be tried again and his submissions
heard. As Maimonides M. T. Sanhedrin 13: 1 states: "If he says I have
something to argue in my favour… he is retried the first and second time…
On the third occasion, if there is substance in what he says, he is retried any
number of times." In civil law, Maimonides (M. T. ibid 7:6) holds that when
136
CRIMINAL PROCEDURES
new evidence "controverts the judgment, a retrial is held even though the
previous trial has been concluded." (See also Hoshen Mishpat 20.)
337
Part Five
EVIDENCE
CONTENTS
Chapter One: GENERAL
1. Fraud in Proceedings –
Credibility of Parties and
Evidence
2. Credibility of a Proven Liar
3. Credibility of a Criminal
4. Evidence of a Minor
5. Weight of Evidence by Court Official
6. Giving Testimony on Oath
7. Evidence of Single Witness
8. "Wrongdoer" Disqualified as Witness
9. Disqualification of a Witness
10. Evidence of the Mentally Ill
11. Personal Knowledge of Witness
12. Contradictory Evidence on Minor Matters
13. Distinction Between Contradictions on Substantive
and Marginal Issues
14. Retraction by Witness
15. Circumstantial Evidence
16. Probative and Constitutive Evidence
17. Examination of Witnesses
343
344
346
346
346
347
363
365
366
367
367
370
371
374
375
376
377
Chapter Two: EVIDENCE IN CIVIL CASES
A. Admissions
1. Scope and Types
2. Weight
3. Conditions for Application of Rule Tacitare est
consentire
4. Ambiguous Admissions
341
379
381
383
384
CONTENTS
B. Presumptions
I. A Person Does Not Discharge a Debt Before It is
Due
2. Tacitare est consentire
3. A Person Does Not Implicate Himself
4. The Holder of a Deed is at a Disadvantage
5. The Holder of a Deed has a Lawful Claim
6. A Signatory Knows the Contents of the Deed
7. Omnia praesumuntur legitime facto
8. Witnesses Have Satisfied Themselves as to Capacity
of Signatory
C. Modes of Proof
I. Matters of Expertise
2. Presumption that is Baseless
3. Miggo – "Because"
385
386
387
389
389
389
390
390
390
391
392
D. Litigants' Oaths
I. Orphans
393
E. Burden of Proof
Chapter Three: EVIDENCE IN CRIMINAL CASES
A. Conviction and Acquittal
1.
2.
3.
4.
Conviction on Circumstantial Evidence
No Conviction on Probability
Acquittal in Cases of Doubt
Conviction on Confession
396
405
407
408
B. Extent of Proof
1. Intimidation and Guilt
2. Intimidation and Proof of Contemplating Offence
3. Extent of Proof in Cases of Unlawful Relations
414
416
416
C. Identification
1.
2.
3.
4.
Voice
Physical Features
Blood Tests
Facial Resemblance
417
418
418
419
342
Chapter One
GENERAL
I. Fraud in Proceedings – Credibility of Parties and Evidence
C.A. fM/78
BOROCHOVITZ LTD. v. RAMAT GAN MUNICIPALITY
(1979) 33(3) P.D. 690, 697-698
The sole question in this appeal was whether a lawyer had been appointed as an
arbitrator or as an umpire.
Cohn J.: As the learned judge rightly saw, the circumstances and indicators
revealed in this case cast serious doubt as to the veracity of the statement
of the director of the appellant company. His declaration that he did not
know or agree that the third arbitrator should be appointed as an umpire is
irreconcilable with the action of the arbitrator, Ehrlich, for the appellant,
and with the conduct of the appellant itself. The lack of credibility which
the director's declaration met with on the part of the learned judge, in
the light of those circumstances and indications, is enough to deprive it of
all evidentiary value.
Even under Jewish law, where, in criminal matters at least, a court
will not decide "according to its appraisal but on the clear evidence of
witnesses" (M. T. Sanhedrin 20:1), judges are cautioned not to decide even
on clear, uncontradicted and seemingly compelling evidence, if they do
not believe it. "How do we know that a judge who is rightly aware
that he is being deceived should not say that he will come to a decision
and leave the responsibility to fall upon the witnesses? Scripture says that
one should keep distant from falsehood" (ibid. 24:3). The same applies in
our own legal system and in our own times. No court will knowingly decide
something untrue on the basis of uncontradicted evidence and put the
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blame on the witness (or on the lawyer who neglected to cross-examine
the witness). The difference between the system of the early Sages and our
own is that we discharge our judicial duty by simply rejecting the evidence
or denying it weight, whilst they were concerned with the perplexities of a
judge who must decide on the strength of valid evidence given by competent
witnesses, which he finds tendentious. According to Maimonides, if a judge
has no hesitation aboutnot relying on a witness, even though he is unable to disqualify the
witness, or if he inclines to think that a party is lying and deceitful and
has procured witnesses, although they are competent and have given
evidence in good faith … he may not decide the case but must absent
himself from the bench and leave the decision to those who can reconcile
themselves with the situation (ibid.).
Rosh, however, disagrees and holds that the defendant is to be given
a quasi-decision, "that no judge is to endeavour to hear the case", and
this when the lying "appears more than certain" (Resp. Rosh 68:20 also
cited in Hoshen Mishpat 15:3). It is otherwise when the defendant is lying,
in which event, if the judge is "sure" that he is guilty, he must decide
against him so that the one at fault is not rewarded (Resp. Rosh 107:6,
cited in Hoshen Mishpat 15:4) …
The circumstances of the present matter and the indications of the truth
revealed during trial prove, and the learned judge, notwithstanding the
affidavit of the appellant's director, was at liberty to hold, that the appellant
did in fact agree to the appointment of the arbitrator as an umpire.
2. Credibility of a Proven Liar
C.A. 70/60
MENASHE v. ATTORNEY GENERAL
(1960) 14 P.D. 1625, 1626, 1627
Cohn J.: This appeal should be accepted.
The appellant sued … for a declaratory judgment that he was born in 1905
and not 1910. Three witnesses gave evidence on his behalf-he himself, his
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GENERAL
brother. .. and his sister. … Their evidence on this point was not contradicted
on cross-examination. Nevertheless the learned judge dismissed the claim
and in his judgment, marked by extreme brevity, gave his reasons for doing
so, as follows:
I do not ignore the evidence of (the sister), the only one of the witnesses
whom I heard whose veracity I would be prepared to accept. Her
evidence could serve to corroborate other evidence that I might have
considered credible. But the difficulty is that I am not prepared to rely
on the testimony of (the brother) nor on the credibility of the applicant.
I have not been persuaded to my satisfaction and accordingly dismiss
the application.
The sole question before us is whether the appellant brought evidence
that was credible to the lower court, and that can prove his claim. The
fact that the learned judge does not disclose the reason why he is not
prepared to believe the evidence of one witness or rely on the evidence
of another cannot move us to follow the same course. We have before us
only the evidence which was credible to the learned judge; in viewing such
evidence, however, we are not bound to follow the learned judge regarding
the weight to be attached to it. The question whether some particular
evidence is sufficient proof is a juridical question and an appellate court
will deal with it as it thinks fit…
Counsel for the respondent goes on to submit that in any event the
appellant is not entitled to the relief he claims since the observations of
Olshan P. in C.A. 282/ 59 Attorney-General v. Amar Simon (1959) 13
P.D. 1387, 1389 apply to him "literally" that the fact that the appellant
lied-as he admits-in order to facilitate his immigration to this country
"is likely to create doubt whether on this occasion as well he is prepared to
resort to a lie so as to deceive some other public institution." I can imagine
that doubt of this kind lurked in the mind of the learned judge when
he had reservations about the veracity of the appellant. Indeed I agree
with all respect that applicants for a change of age, who change their
age according to time and place, should be treated with all reasonable
suspicion and that a person who claims one age today and another age
tomorrow should not be presumed to be speaking the truth. On the other
hand these doubts and suspicions carry no force as long as the suspicion
has not been proved by credible evidence. In place of a presumption
of honesty of which he cannot avail himself, satisfactory evidence must
be adduced. That applies not only to independent evidence but also to
the evidence of the applicant himself. When the court is about to decide
on the issue of credibility, these doubts and suspicions need not be an
unsurmountable obstacle in every instance. If we can find no suggestion
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PART FIVE: EVIDENCE
of that in the law of evidence of the English Common law – where the
credibility of witnesses falls to the decision of a sworn jury or a judge at
first instance and is not open to argument or appeal-there are abundant
suggestions of that in the law of evidence of Jewish law.
It once happened with a woman of great beauty whom men were ardent
to marry, that told her suitors that she was already betrothed. Some time
later she became betrothed and the Sages asked her why she had chosen
to do so. She replied that at first when unworthy men approached her
she had said that she was already betrothed, but now that worthy
men had approached her she had betrothed herself. And this rule R.
Aha… put to the Sages of Usha and they said that if she gave a good
reason for her words, she is believed (Ketubot 22a).
Here also, a person who gives rhyme and reason for his incorrect statements
in the past, which appear good and substantive to us (see M. T. /shut 9:31)
may be believed in the present. Only when given no good reason or when
we find no substance in it is his credibility affected by previous utterances.
3. Credibility of a Criminal
See:
KALO
v.
ATTORNEY-GENERAL,
Part 4, Regulation of the Courts, p. 276.
4. Evidence of a Minor
See:
ESTATE OF REICHMAN.
Part 9, Property-Physical and Intellectual, p. 715.
5. Weight of Evidence by Court Official
See:
ATTORNEY-GENERAL V. SHEINBERGER,
Part 4, Regulation of the Courts, p.
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284.
GENERAL
6. Giving Testimony on Oath
C.A. 269/64
MARTZAFOT LTD. v. ALFASI
(1964) 18(4) P.D. 63, 64-45
The question here was whether to accept the evidence of a witness given by solemn
affirmation and not under oath.
Manny J.: In an action in tort…the second appellant appeared to give
evidence for the defence. In the witness box he said: "I am prepared to
be sworn but wish to give evidence on solemn affirmation. I am a Jew
and have never been sworn." His counsel then asked the court to allow
him to give his evidence under solemn affirmation. The respondent (the
plaintiff in the lower court) having objected to this course, the District
Court judge decided: "I will not accept the evidence of the witness unless
it is given under oath." Was the court right in so deciding?
Rule 182(a) of the Civil Procedure Regulations of 1963 provides as
follows:
Every witness shall be examined under oath unless the court is convinced
that an oath is contrary to the religious principles of the witness or that
he is not religious at all: in each of these cases the witness may be
examined on solemn affirmation alone.
It is clear from this rule that the principle is that every witness must
take the oath. When he objects, the grounds of his objection must be
examined, and if the court is convinced that his objection is due to the fact
that to take the oath conflicts with his religious principles, or the fact
that the witness is not religious at all, the witness may then be allowed
to give evidence on declaration only. Exemption from the oath can only
be given for one of the two reasons indicated in the rule.
It is clear from the decision of the Court that it was not "convinced" that
either one of these reasons existed, and it seems to me that it cannot be
criticized for that.
As I have said, two reasons were given by the second appellant for not
being prepared to be sworn: (a) that he is a Jew and (b) that he has "never"
been sworn. In my opinion, neither of these reasons justifies departing
from the basic principle that every witness must take an oath. The fact
that a person declares himself to be a Jew does not by itself mean that the
oath "conflicts with his religious principles", witness the fact that many
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verses are to be found in the Torah itself, which pronounce on, and even
render obligatory, a religious oath. I shall mention a few of these verses.
I. In Gen. 21:23, Avimelekh, the king of Gerar, says to Abraham:
"Now therefore swear unto me here by God that thou wilt not deal
falsely with me, nor with my son, nor with my son's son; but according
to the kindness that I have done unto thee, thou shalt do unto me
and to the land wherein thou hast sojourned." And in the next verse,
Abraham replies "I will swear."
2. In Gen. 24:3, Abraham says to his servant, the elder of his house,
"And I will make thee swear by the Lord, the God of heaven and
the God of the earth, that thou shalt not take a wife for my son
from the daughters of the Canaanites among whom I dwell." In verse
9 we read, "And the servant put his hand under the thigh of Abraham,
his master, and swore to him concerning the matter."
3. Ex. 22:9-10 states that "If a man deliver unto his neighbour an
ass, or an ox, or a sheep, or any beast to keep and it die or be
hurt or driven away, and no man saw it, the oath of the Lord shall
be between them both, that he has not put his hand unto his neighbour's
goods, and the owner thereof shall accept it and he shall not make
restitution."
4. Lev. 19:12 prescribes "And ye shall not swear by My name falsely
so that thou p-rofane the name of thy God: I am the Lord."
C.A. 216/ 65
ARTAN v. 4 NAGARIM
(1966) .SO P.M. 352, 354-360
This was an appeal by leave against a decision of the Magistrate's Court that the
appellant must be sworn by a religious oath before his evidence will be heard.
Lamm J.: The appellant was called by his counsel to give evidence in
an action against him brought by the Negarim Partnership. The learned
judge refused to allow the evidence since he thought that the view expressed
in C.A. 209/64 Martzafot Ltd. v. Alfasi [above, p. 347] prevents him
from hearing the evidence of a person who refuses to be sworn. Counsel
Sheinbaum for the appellant attacked the decision of the judge… and
maintained that the case cited is not decided law. There, he said, Jewish
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GENERAL
law was applied to a matter unconnected with personal status, and such
law does not possess the character of local enacted law.
Jewish law, argued counsel, is a question of fact, and no inference is
to be drawn from a view cited in some other matter on how to proceed
in the present instance. He also thought that Jewish law is like foreign
law, and as decided in l.Azard Bros. v. Midland Bank [1933] A.C. 289
and in Ottoman Bank of Nicosia v. Chakarian [1937] 4 A.E.L.R. 581, the
determination of the Supreme Court regarding the nature and interpretation
of foreign law is not binding on other courts.
I am not prepared to regard Jewish law as foreign law. A Jewish judge
cannot be required to hear expert opinion in order to establish what
Jewish law requires. I therefore agree with counsel (for the respondent)
that Jewish law in the State of Israel is not to be considered foreign law,
to be proved as if it were foreign law binding on the residents of a foreign
state. Nevertheless, it seems to me that counsel for the appellant was right to
say that when dealing with Jewish law, a view expressed by the highest
instance is not to be treated as decided Jaw in those cases in which the
legislature did not unequivocally render it applicable to particular matters,
as it did to matters of the personal status of Jews.
Accordingly there was no occasion to say in the decision against which
appeal is made that the view expressed by Manny J. in the above case
prevents a judge from admitting unsworn evidence, especially as in that
case the witness said "I am a Jew and have never been sworn", whereas
in the present case the witness was not satisfied with that but stressed
that he was religious and would never swear an oath, and there is no
reason to assume that he said what he did other than in good faith.
As to the question itself, whether swearing by the Divinity in accordance
with Rule 182(a) of the Civil Procedure Regulations, 1963, conflicts with
the religious observations made in the above case. Manny J. sets out
five Biblical sources from which he infers that there is nothing in Jewish
law to prevent a Jewish witness from swearing by the Divinity. Appellant's
counsel submits, and it seems to me correct, that it is not possible to
determine Jewish law in reliance on the Bible alone. To support his
argument, he gives an example. A restaurant worker who made it expressly
conditional that the kashrut (observance of dietary laws) of the restaurant
should be a term of his employment gave up his job because the restaurant
had become non-kosher (i.e. it no longer observed the dietary laws).
He claimed severance pay, maintaining that this change was indeed a
deterioration of the conditions of his employment. Could the employer be
exempted from paying severance pay on proving that the food served in
the restaurant was biblically kosher (in accordance with the dietary laws)?
According to the Bible, meat boiled in milk is not prohibited so long as
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1t 1s not a case of seething a kid in the milk of its mother. Moreover,
Scripture relates that the Patriarch Abraham provided his three visitors
with curd and milk together with a good and tender calf (Gen. 18:7-8).
Clearly a court cannot disregard the aggregate of rules regarding meat and
milk, referred to in the Talmud and in the earlier and later authorities,
an aggregate of rules according to which Jews have conducted themselves
over the generations.
It therefore appears that I have no choice but to review the opinions
expressed down the ages by our Rabbis. I shall permit myself to cite
certain matters which seem to me of importance in the present case.
Respondent's counsel drew my attention to the following sources:
a) M. T Shevuot 11: I decides that just as it is a negative commandment
not to swear falsely or tell a lie, it is a positive commandment to submit
to an oath required in court. Maimonides describes the taking of an oath
as follows:
The person to be sworn holds a sefer Torah in his arm and he stands and
swears by the Divine Name or its equivalent or by the utterance of an
oath, such as "I hereby swear by the Lord the God of Israel or the One
Whose name is 'Gracious' or 'Merciful' etc."
b) For authority in the post-Maimonides period I was referred to the
work by Dr. M. Elon on Freedom of the Individual in the Collection of
Debts in Jewish I.Aw (1964) where a description is given of an oath taken
before an open Ark.
To clarify Maimonides' position, it is important to quote what he says
in his Sefer haMitzvot (Positive Commandment 7):
The Torah says 'Swear in His Name' but it also says 'Do not swear.'
That is to say, just as one must be careful about an unnecessary oath,
for that is a negative commandment, an oath that is necessitated by
the circumstances is a positive commandment…
One may not ignore Nahmanides' comments in his critique to Maimonides'
statement.. .he would certainly agree with Maimonides that the taking of
an unnecessary oath is a transgression, but he goes further and disagrees
with Maimonides that a necessary oath is a positive commandment and
holds rather that it is allowable under a number of conditions.
Appellant's counsel drew my attention to the following halakhic sources
and asserted that the problem is not whether religious principles are at
all contrary to every oath in every circumstance and in every matter, but
whether the specific oath which a witness must take in a matter is in
.conformity with religious principle.
a) Midrash Tanhuma to Num. Matto! l (Buber ed.) reads:
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GENERAL
The Holy One blessed be He said to Israel: Do not think that you may
be sworn by My Name, even as to the truth, unless you possess all these
qualities: "And you shall fear the Lord thy God" – that you are like
the three who feared God, Abraham, Job and Joseph…. If you turn to
the Torah and keep the commandments and have no other service… .lf
you have these qualities you may be sworn but not otherwise.
b) Midrash Vayikrah Rabba, 6:3 states:
One who gets another to swear to a lie will not succeed. R. Assi said
that this applies to a lie. R. Y onah said it applies also to the truth.
c) Hovot haLevavot "Love of God" ch. 6, (written by Bahya ibn Pekudah
in the eleventh century):
He must be careful about swearing by the name of the Creator to
uphold the truth and avoid a lie; a fortiori to maintain a lie and avoid
the truth.
d) The Midrash on the Ten Commandments (attributed to Asher ben
Meshulam of Lunel), regarding the Third Commandment:
Accordingly, even as to the truth a person may not be sworn…. Anyone
who profanes the Holy One blessed be He and swears to a lie or even
to the truth, his end is that God will make apparent his evildoing and
punish him. Woe to him in this world and woe to him in the world to
come.
Counsel for the appellant pointed out that this view was accepted as binding
halakhah.
e) Tur, Orah Hayim 156:
A person should be extremely careful about swearing an oath since our
Rabbis were very critical about false oaths and even about oaths to the
truth.
f) So also in Shulhan Arukh, Orah Hayim 156:1:
One should be careful about swearing even to the truth.
In addition to the foregoing sources, counsel cites other authorities who
indicate that the oath was abolished since the penalty therefor is very
high even in those instances when a person is bound to take an oath in
court.
g) Tur, Hoshen Mishpat 87 states:
Rashi has written that the oath has today been abolished because of
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PART FIVE: EVIDENCE
the high penalty that attaches to it.. .. So also wrote Ramah, that in
post-Talmudic times, it was customary to administer a dire warning [of
the consequences of perjury]. ..
h) Hoshen Mishpat 87: 19 is to the same effect. Counsel observes that
although the Shulhan Arukh cites this rule as an opinion held by some
authorities, no opposing view is given and the authorities generally hold
that this is decided halakhah.
i) Appellant's counsel quotes a further source that describes the formal
procedure for the taking of an oath and sets out in detail the warning given
to a witness and calls those parties evildoers who are not satisfied with the
warning but insist on an actual oath…
In addition to the precedents mentioned by counsel for the appellant and
for the respondent one may point to other sources that are not consistent
with each other.
I) The Gemara in Gittin 35a states:
R. Kahana, and some say R. Yehudah in the name of Rav, relates that in a
year of scarcity a certain person deposited a gold dinar with a widow who
placed it in a jar of flour which she then baked and gave to a poor man.
Subsequently the owner of the dinar claimed it and she said, "May one
of my sons die if I had any benefit from your dinar." A little while
later one of her sons died. When the Sages heard of this, they said, "If
that can happen to one who swears to the truth, how much more so
to one who swears falsely."
2) Hatam Sofer writes in a responsum (Hoshen Mishpat 162):
What is worse is that he asked the witnesses to take an oath, which is
indeed secular usage and obligatory under state law, but he was unaware
that according to the law of our Holy Torah the contrary is the case.
3) R. Benzion Meir Hai Uziel in Mishpetei Uziel (Hoshen Mishpat 13:2)
observes:
Certainly, people are not sworn to tell the truth because such an oath is in
vain and it is forbidden … and if anyone demands it, he is not listened to.
That is the reason why the law relating to witnesses in Jewish law does
not mention the swearing of witnesses as to their personal knowledge
or the truth of the evidence they give.
4) • A slightly different
Responsa (Tashbetz 3:15):
view
appears
by
Rashbatz
m
his
You wish to know my view about the practice in Spain of swearing
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witnesses, whether it has taken root anywhere … .! attest as you do that
R. Yitzhak bar Sheshet (Ribash) was so accustomed to proceed here. I
am also informed that as to all evidence taken in Barcelona R. Nissim
used to require an oath.
He goes on to write:
It seems that although it is not obligatory for witnesses to be sworn… an
oath taken to attest to the truth is not a superfluous oath .. .In any
event, no obligation arises for witnesses to be sworn and all that we
can say is that it is permitted and does not involve the unnecessary
mention of the Divine Name. I would add that a court may require an
oath if it considers that people treat false evidence lightly….If that is so
and people claim that evidence given without an oath does not involve
the prohibition of lying, we must act according to their error… .I myself
do not swear witnesses unless the defendant requests it and the witness
stands silent, since people in this country find the local practice difficult
and in Christian Spain it is customary to administer an oath, not that
it is permitted to follow their practices, but because of the ideas of
witnesses who have grown up on such practice and think it is law.
I have not seen anything like this in the early authorities except Rabbenu
Hai Gaon…. Substantively, it seems, that the rule that witnesses need to
be sworn is derived from the law of evidence.
It follows from all the sources cited above that no hard and fast rule
can be laid down. One view is that there is nothing debarring a Jewish
witness from being sworn. Another view is that a Jewish witness may be
debarred from swearing even as to the truth. Whatever the halakhah, it
is a fact that God-fearing Jews are careful not to be sworn even where
that might involve them in pecuniary loss. That was already the case in
olden times as the Mishnah in Baba Metzia, 3:1 demonstrates:
Where a person deposits an animal or utensils with his neighbour and
they are stolen or lost, the neighbour pays, not wishing to be sworn,
since the ruling is that a gratuitous bailee may swear and be obligated
no further. If the thief is found, he must pay double.
In this case, the bailee refused to swear even to the truth, as emerges from
the reference to "if the thief is found". Hence the bailee was certain that
he was not the thief and yet refused to swear that "he had not possessed
himself of something belonging to his fellowman". Further proof of this
may be derived from the fact that in the period of the Gemara, a bailee was
required to take an oath by virtue of a takkanah (regulation) promulgated
by the rabbis of the Gemara, even after he had paid. The need for such
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PART FIVE: EVIDENCE
an oath arose from the fear that the bailee was deceiving the court and
for reasons of his own was prepared to pay for the goods which in
fact remained with him although he claimed that they had been stolen.
He was therefore made to take an "exemptory" oath instituted by the
rabbis, by which he swore that the goods were not in his possession.
If a bailee was indeed scared only of swearing falsely, it would be of no
avail to him that he paid, for he would still be forced to take the exemptory
oath. Why should he swear falsely and also be out of pocket? …
Consult in this connection the article by Dr. I. Englard, "The Oath of a
Witness"in 21 haPrak/it 435. It seems therefore that the court must leave the
decision to the witness, the religious Jew, in accordance with his religious
conscience. And if he refuses in good faith to be sworn, in sincerity, and
out of understanding that his religion prevents him from taking an oath
which the court wishes him to take, the court may not refuse to hear
his evidence even under the regulations in force when the lower court
decided not to hear the appellant without his being sworn.
See:
GERSHT
v.
VILDENBERG,
Part 12, Interpretation, p. 868.
ll.C. 112/78
BECKER v. EILA T et al.
(1978) 32(3) P.J) 370, 378-386
The petitioner, an agnostic, asked for a declaration that he might for reasons of
conscience give evidence under solemn affirmation.
Elon J.: The two questions that we have been asked turn on the construction
of sec. 154 of the Criminal Procedure law, 1965:
Before taking the testimony, the court shall caution the witness that
he must testify truthfully or be liable to the penalty prescribed by law.
The witness shall take an oath to testify truthfully: Provided that if he
states that he is prompted by reasons of religion or conscience he may
refrain from taking an oath and may make a solemn affirmation unless
the court is satisfied that those reasons are not invoked in good faith.
The questions are as follows: (a) May a witness who declares himself to be
an agnostic make a solemn affirmation upon stating that he is prompted
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by reasons of conscience; (b) To what extent must the court be persuaded
in order to reach the conclusion that the reasons of the witness were not
given in good faith?
It seems to me that learned counsel for the petitioner was not precise in
his search for the source of sec. 154 and therefore erred in finding that
it is to be construed by comparing it with, and against the background
of, the legal situation that preceded it. But although my conclusion is the
same as that of counsel, i.e. that under sec. 154 an agnostic, including
the petitioner, may give evidence on solemn affirmation alone and is not
to be required to be sworn, the manner in which this conclusion is reached
differs from that of counsel. I shall explain.
Whence did the legislature draw this provision regarding the cautioning
of witnesses …? There is nothing like it either in English or American law
which counsel cited so extensively. It is, however, found in a legal system
much closer to us, Jewish law. For that reason alone, clearly we must turn
to the sources of Jewish law if we wish to understand properly the content
and aim of sec. 154. There is no need to prove this origin, since it is
explicitly mentioned in the Bill of the Law of Evidence published by
the Ministry of Justice in December 1952, and it may also be inferred,
again very obviously, from the Explanatory notes to the Bill of the Evidence
Ordinance Amendment Law, 1955…
Before, however, we examine these Bills, we must glance… at the manner
in which the subject is regulated in Jewish law.
The giving of false evidence is a serious offence under Jewish law. It is
prohibited in the Ten Commandments: "Thou shalt not bear false witness
against thy neighbour" (Ex. 20: 13; cf. Deut. 5: 17). Thus, according to
Jewish law, there is no good reason for administering an oath to tell the
truth in evidence, since "he has already so been sworn on Mount Sinai"…. A
witness suspected of transgressing this Commandment is equally suspected
of transgressing "Thou shalt not take the name of the Lord thy God
in vain"which is also one of the Ten Commandments (Ex. 20:7; Deut. 5:11).
What is the reason for being sworn, what benefit does it bring? Not only
does swearing a witness not ensure the truth, but it may be forbidden for
him to be sworn; since he was sworn to tell the truth on Mount Sinai,
there is no occasion to administer another oath, for that may involve the
taking of the name of God in vain. (The latter observation is in dispute
but this is not the place to enlarge on that; see further below.)
To obviate any confusion let me say at once that the halakhah certainly
recognises the institution of the oath, but the area of its legal application
is largely confined to a mode of evidence by which a party may prove the
rightness of his claim (see M. Elon, Jewish Law, Part 2, 504 ff.). There also
exists in Jewish law an institution named "the Oath of Evidence" but that
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has nothing to do with the swearing of witnesses in order to authenticate
what they say. The "oath of evidence" means that one person makes
another-who has information about a matter pending in court-swear to
appear and give evidence and not refrain from doing so.
Where witnesses who possessed evidence in a civil matter were asked
by the party concerned to give testimony on his behalf but they denied
that they had such evidence and did not testify, they were sworn that
they knew nothing of such evidence. That is the Oath of Evidence (M. T.
Shevuot 1:12; see also 9 ff.; Shevuot 30a).
However, Jewish law originally never required that a person about to
give evidence be sworn in order to authenticate that evidence, and never
recognised such an oath. Furthermore, the view is found that witnesses
"are not credible after being sworn, since the Torah says, 'by the mouth of
two witnesses … shall a matter be established' (Deut. 19: 15) which signifies
that they are believed on the basis of what they say alone. Where witnesses
need to be sworn before being believed, their evidence has no substance"
(Tosafot to Kiddushin 43b; this is also the conclusion in Resp. Hatam
Sofer, Hoshen Mishpat 162; see also Mishpetei Uziel, Part 3, Hoshen
Mishpat 13).
Jewish law too was aware that it was right and proper to bring to the
attention of a witness about to give testimony that he must testify to
the truth, and to that end it provided that a witness was informed of
this requirement, of the serious offence of giving false evidence and of
the penalty entailed. Such warning differed as between testimony given in
civil cases and that in penal cases. Everything depended on the gravity of the
matter. The formula used is discussed in detail in the Talmud (Sanhedrin 29a
and 37a) but here it is sufficient to set out the summary given in M. T.
Edut 17:2):
Witnesses in civil matters are also warned …. They are warned in the
presence of all (who are in court, the reason being, according to Radbaz,
that they should be shamed from giving false evidence) and they are
informed of the force of false evidence and the shame that attaches to it
both in this world and in the world to come.
Hoshen Mishpat (28:7, relying on Sanhedrin 29a) supplements the formula
with the words "and that they are despised by those who suborn them."
That was the warning given in civil cases. In capital cases where the fate of
a person was involved, the formula was as follows (M. T. Sanhedrin 12:3):
They are told: Perhaps what you say is based on conjecture and hearsay,
on what another witness, even a trustworthy person, said. Perhaps you
do not know we will ultimately cross-examine you. Know therefore that
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civil matters are unlike capital matters. In civil matters a person may
atone by giving his money. In capital cases, he is responsible until the end
of time for the blood of the accused and of his [potential] descendants.
Thus it is said regarding Cain, "The bloods of thy brother cry out to
Me" (Gen. 4:10): that is, his blood and the blood of his descendants.
Therefore man was created alone, to teach us that whoever destroys a
single soul is imputed to have destroyed a complete world, and whoever
sustains a single soul is imputed to have preserved a whole world. Every
man was fashioned in the form of Adam and yet no one resembles his
fellow. Therefore every man can say that the world was created for his
sake.
Lest you should say, what has all this got to do with us? Has it not
already been written, "And he being a witness, whether he has seen or
known, and sayeth not, then shall he bear his iniquity" (Lev. 5:1). Or
lest you should say, What guilt have we for the blood of this person?
Has it not already been said, "When the wicked perish there is joy"
(Prov. 11:10).
To sum up: a witness is not required to take an oath since he has already
sworn to tell the truth and not to bear false witness against his neighbour.
Instead of being sworn he is solemnly warned to understand the nature
of testimony, as something in his personal knowledge and not hearsay,
and the gravity of giving false evidence and the punishment that may
ensue.
Before proceeding to consider Jewish law as it developed over the ages,
the situation regarding the oath of a witness in other legal systems may
be briefly noted. The need to swear in witnesses was common long before
the rise of Christianity. It is as old as the Creation (see Willes L.C.J.
in Omichund v. Barker (1744), and W.M. Best, The Principles of the
Law of Evidence (1922) 42-43). The duty of a witness to be sworn,
as a necessary condition for his testimony to be received, still persists
down to modern times, along with the additional alternative of making a
solemn declaration…. It is noteworthy that the leaders of the Church based
the need for the oath on a verse in Scripture: "When a man voweth a
vow unto the Lord or sweareth an oath to bind his soul with a bond,
he shall not break his word; he shall do according to all that proceedeth
out of his mouth" (Num. 30:3). (See the remarks of Archbishop Secker
quoted by Best, op. cit. 44-45.) This verse clearly has nothing to do with
the need and duty to swear in a witness so as to substantiate his testimony.
(See also J.H. Wigmore, Evidence (1976) 380 ff.; "Oaths in Judicial
Proceedings and their Effect upon the Competency of Witnesses", The
American Law Register (1903) 373, 376-77, 384-89.)
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From the beginning of the fifteenth century a material change occurred
in Spain and North Africa in the position taken by Jewish law in respect
of the witness oath. For our present purpose it is sufficient to quote two
responsa that indicate the nature of this change and its extent, as well as
the social and psychological reasons that gave rise to it.
In 1405 the communal leaders of Barshak in Algeria addressed a question
to Ribash, as to whether evidence given by witnesses was good, when
"the court wished to receive such evidence under oath on a scroll of the
Torah, but the witnesses refused to swear out of fear of the punishment
the oath entailed." From the very character of the question we may discern
the revolutionary change that had occurred in legal realities. The question
was not whether the evidence given on oath was void, as under the original
halakhah, but the reverse, whether evidence given not on oath, although
such oath was requested, was valid. Ribash replied:
To receive evidence from witnesses without an oath is not contrary to
the law. We have not found anywhere that witnesses need to be sworn
to tell the truth; for that they were sworn on Mount Sinai…. ln some
places, however, it is customary to swear witnesses so as to put them
in fear, but not under law. We here are accustomed to swear witnesses
when they are suspected of suppressing evidence in order to flatter the
accused …. The witnesses themselves also wish to be sworn so as to be
able to counter the accused against whom they testify with the argument
that the oath compelled them to tell the truth (Resp. Ribash 170).
From the very same period there has come down a responsum by R.
Shimon bar Tzemakh Duran in answer to R. Amram of Grenada (Resp.
Tashbetz Part 3, 15), which adds important details about the background
and the motivation for the change in Jewish law in this regard and the
extent of its reception by the Jewish courts in the different communities:
You wish to know my view about the practice in Spain of swearing
witnesses, whether it has taken root anywhere, for you find it strange
although you are aware that many worthy people so act. I too can attest
that R. Yitzhak Bar Sheshet used to do so here. I am also informed that
in Barcelona R. Nissim used to require an oath … Jt seems that whilst
it is not obligatory, it is not in vain to swear an oath to tell the truth for
we surely know that people are sworn to obey the Commandments… .In
any event, it is not obligatory for witnesses to be sworn and all that
we can say is that it is permitted and does not involve the unnecessary
mention of the Divine Name.
I would add that a court may require an oath if it considers that people
treat false evidence lightly. Although false evidence and false oaths both
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involve transgression of a negative commandment, if you suspect that a
person may testify to a lie, how can you believe him on oath? Why is
one a greater sin than the other? If, nevertheless, we find that people
today make light of things and seek license that evidence not given on
oath does not involve the prohibition of lying, we must act according
to their error and administer an oath, as it is said:" 'Thou shalt not
covet' is understood by people to apply to what one is not prepared
to pay for" (Baba Metzia 5b). I myself do not swear witnesses unless
the defendant requires it and the witness stands silent, since people in
this country find the local practice difficult and in Christian Spain it
is customary to administer an oath, not that it is permitted to follow
their practices but because of the ideas of witnesses who have grown up
on such practice and think it is law.
This substantive change in the law regarding the swearing of witnesses
is based on contemporary moral, social and psychological changes and
increasingly it came to be accepted as part of the Jewish legal system. The
change is summed up by Rema in his annotations to Hoshen Mishpat 28:2
– "If the court finds need to swear them to tell the truth, it is permitted
to do so." (See also Elon, op. cit. 107-10; Z. Warhaftig "The Swearing of
Witnesses in the Courts of Israel" 3 Yavneh (1949) 147-51).
This approach of Jewish law was adopted by the Ministry of Justice in
its Bill of the Evidence Law, published for public consideration in 1952.
Secs. 19 and 20 provide as follows:
19. Before giving evidence a witness shall first be warned by the court
in a language he understands that he must tell the whole truth and
that if he does not do so, he will be liable to the penalty prescribed by
law; after the witness has been warned, his evidence shall be treated as
evidence under oath for the purpose of sec. 117 of the Criminal Code
Ordinance, 1936.
20. Where the court has grounds for assuming that the swearing of a
witness may help in discovery of the truth, it may administer an oath,
in the following terms: I swear that my evidence in this court shall
be the truth, the whole truth and nothing but the truth.·
The Explanatory Notes to these sections explain that the oath has turned
into a common-place formula which witnesses mumble without thought or
understanding. The Bill adopts the position of Jewish law:
It is ancient Jewish tradition that the court would warn the witnesses
before they gave evidence or, in the terms of the halakhah, threaten them,
pointing out the force that attaches to false testimony and the dishonour
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PART FIVE: EVIDENCE
it entails in life and after death, as well as the contempt in which they
are regarded by those who suborn them (Hoshen Mishpat 28:7). Such
caution given by the judge in a form and in a language which a witness
can comprehend may influence him and render him conscious of the
value of testimony, which is the purpose of every oath in the view
of the law.
The very reason which we came across in the responsa of Ribash and
Tashbetz regarding judicial discretion in administering the oath is set out
in the Explanatory Notes to sec. 20:
There are some people, particularly judges, who urge that in this country
the time is not yet ripe for abolishing the oath. According to those who
so think, primitive persons are deterred from swearing false oaths,
but not from giving false evidence. Should such a person appear in
court as a witness, the court, under this section, would be permitted to
swear him, whether after or before he had commenced to testify. The
Divine Name has been omitted from the formula of the oath in order
to avoid religious implications.
In 1955 a Bill was published to amend the Evidence Ordinance by
providing that a written declaration required to be given under oath or
by solemn affirmation before a Magistrate or District Court registrar,
according to existing Mandatory law, should also be valid if given before
a dayan (religious court judge), a lawyer or other person learned in the
Law, and in place of the oath or solemn affirmation "the declarant is to
be warned that he must declare the truth or be liable to the penalties
prescribed by law, if he does not do so". It was also provided that the
sections of the Criminal Code pertaining to false evidence should apply
to such a declaration. The Bill also cites in its Explanatory Notes the
reliance placed upon Jewish law. The Bill was shortly afterwards enacted
into law.
We now return to sec. 154 of the Criminal Procedure Law of 1965 which is
the subject of the present hearing. Although, as the petitioner's counsel has
observed, this section did not figure in the original Bill but was introduced in
Committee, it is clear beyond doubt that the Committee drafted it with secs.
19 and 20 of the Bill of 1952, as above, in mind. The Committee, however,
did not accept those sections as they were, but made an important change.
Sec. 19 was adopted in full except for some insignificant verbal variations,
and it forms the first part of sec. 154: "Before taking his testimony, the
court shall caution the witness that he must testify truthfully or be liable
to the penalty prescribed by law". This caution is the very same caution
found in Jewish law, which has the singular purpose of warning the witness
and reminding him of his obligation to speak the truth.
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As against what is said in sec. 20, which leaves the oath to the discretion of
the judge if it appears to him in the given circumstances that it would help
in discovering the truth, sec. 154 of the Criminal Procedure Law contains
a general provision regarding the oath and adds a proviso that the section
shall not apply when the witness states that for reasons of religion or
conscience he will not swear but desires to make a solemn affirmation
alone. Why was this change made? The report of the proceedings in
the Knesset provide the answer. During the second and third reading of
the Bill, members of different parties and of a variety of outlooks, each
for his own reason, had reservations, and proposed that the phrase, ..the
witness shall take an oath to testify truthfully" should be replaced by
"the witness shall make a solemn affirmation to testify truthfully" (see 43
Divrei haKnesset 2370 and 2434). The majority of the Committee, however,
rejected these reservations. The explanation for the text actually adopted
was inter a/ia given by one member (ibid. 2434-35) as follows:
All those who propose to abolish the oath today suppose prematurely,
in my opinion, a certain development. Possibly in a generation or two
the Israeli population may come to value the caution and warning of
the court before taking evidence as a sufficient deterrent, instead of the
oath.
Thus we see that even in the view of the majority, the basic provision of
sec. I 54 is that contained in the beginning of the section, i.e. the warning and
caution. However, as Tashbetz indicates, there are some who whilst they
treat false evidence lightly, do not do so with a false oath. The Committee
preferred to make it a requirement to take an oath rather than follow
sec. 20 of the earlier Bill, under which the matter would in each case
be left to the discretion of the court. That constitutes an example of the
reception of a principle of Jewish law by the Knesset, whilst adapting it,
however, to the social and moral actuality of the present day and with
the prospect that at some future date the oath will be abolished, in the
same manner as it was adapted in Jewish law in the fifteenth century in
accordance with the social and moral realities of that period. The change
then introduced was greater than the present one, since no possibility then
existed of compelling a witness to take an oath; on the contrary, it was
something that was not to be done (see Eibeschutz in his Urim veTumim to
Hoshen Mishpat 28:10: "The exigency of the hour-since it is customary
among the gentiles to swear witnesses to speak the truth, the mass of
the Jews think that those who are not sworn are not prohibited from
testifying untruthfully. Thus the court usually administers an oath". The
words "usually administers an oath" would seem to mean automatically
and in every case, and if this is indeed so, it means that this was the
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practice in the times of R. Eibeschutz, because thus does "the mass of the
Jews think"…)
Incidentally, it may be noted that a formula identical to that of sec. 154
was adopted a short while later as an amendment to the Civil Procedure
Regulations, 1963 in rule 182(a).
Let us now go back to the matter before us. The leading principle in
sec. 154, as we have seen, is contained in the first part: the giving of
truthful evidence is assured by cautioning the witness that he must testify
truthfully or be liable to the penalty prescribed by law. The subsequent
provision that the witness shall take an oath is secondary and subordinate
to the principle and is to be construed in its light and its spirit. Indeed, the
legislature amply allowed for exempting a witness from taking an oath;
the grounds for that may be reason either of religion or of conscience.
If a witness honestly seeks to be exempted on these grounds, he is not to be
cross-examined thereon, and in that event it is sufficient for him to make
solemn affirmation. But more than that, a court may not deny a witness
his right not to take an oath unless it is satisfied that the witness did not
give his reasons in good faith …
What follows from the foregoing is that one purpose informs sec. 154 as
a whole, which is to make the witness aware that he must speak truthfully,
or else he will be liable to the statutory penalty. Each era has its own
requirements; sometimes it is enough to caution and "threaten", sometimes
a different course must be taken. Wigmore has put it very well: "It follows
that the form of the administration of the oath is immaterial, provided
that it involves, in the mind of the witness [cf. the remarks of Tashbetz],
the bringing to bear of this apprehension of punishment" (op. cit. 387). A
little further on he adds:
The true purpose of the oath is not to exclude any competent witness,
but merely to add a stimulus to truthfulness wherever such a stimulus is
feasible. Until the 1800's, however, this advanced notion of its purpose
had not been reached (ibid. 413-14).
Jewish law reached that stage some 1800 years ago. The principle in
its unfolding development lies behind sec. 154 of the Criminal Procedure
Law, 1965.
In view of that, the present petitioner, having stated that for reasons of
conscience he wishes not be sworn, is entitled under sec. 154 to refrain
from the oath and his evidence is to be accepted on solemn affirmation
alone.
Learned counsel for the petitioner further argues that the said policy
emerges not only from an interpretation of the words of sec. 154, but also
from the point of view of desirable policy, such policy being to restrict the
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need for an oath insofar as possible, both in order to safeguard freedom
of religion and conscience by not forcing an oath upon a person who
does not believe, and because of the serious doubts as to the advantages
of an oath over a declaration on affirmation as a means of assisting in
eliciting the truth (see E. Hamon, Law of Evidence, Part 1, p. 46).
I agree that this is desirable policy, and we have seen that this is
the legislative intent (Divrei haKnesset, op. cit.), i.e. that the legislature
anticipates the day when it will be possible to do away with the oath
altogether. I have an additional reason for supporting this policy. Great
are the degradation and the insult when we see daily how the oath, which
holds deep significance for the believer, becomes a hum-drum matter to
be mumbled and held lightly. Our Sages warned repeatedly that a person
should not become accustomed to swearing, even as to the truth (see
Midrash Tanhuma, Mattot l; Vayikrah Rabba 6:3; Midrash on the Ten
Commandments, Jellinek ed., 1:72; Hovot haLevavot, "Love of God", 6).
The halakhah was stated in the following form:
And he will deal faithfully, and will take care not to mention the Divine
Name in vain… and a person will take the utmost care in the matter of
oaths, for our Rabbis spoke extensively on the matter of false oaths,
and even on an oath as to the truth (Orah Hayim 156).
Every man is presumed not to bear false witness against his neighbour,
and it falls to us only to remind and warn him that he is so sworn. This
is the policy to which we should aspire and in the light of which the
said sec. 154 should be interpreted.
7. Evidence of Single Witness
C.A. 88/ 49
ROSEN v. BIALI
(!951) 5 P. D. 72, 73, 78-80
Silberg J.: This is an appeal by leave against a decision of the Tel
Aviv District Court dealing with an application to enforce the award of
arbitrators. The Court had decided to remit the award to the arbitrators…
The main question before us is the meaning of "uncontradicted" that
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appears in sec. 6 of the Evidence Ordinance: not controverted in any way,
even by way of pleading, or not controverted by evidence and only by
evidence …
If the latter, one could argue that the plaintiff has been benefited but
not the defendant. What should an honest defendant do, when unable
for lack of information to attest under oath in denial of the claim,
and how can he defend himself against the sole but false evidence of a
fraudulent plaintiff? For example, a closed box, deposited with a paid
bailee, is lost. The bailee does not know what the box contained. He
can challenge the claimed value thereof but he cannot testify to the true
value. Is that not sufficient and decisive ground to require the plaintiff to
bring evidence in support of his sole testimony, even if that is denied only
in the pleadings of the defendant? The answer is more than plain.
In the first place, the danger of fraudulent plaintiffs cannot be overcome,
even if evidence corroborating their claims (denied only in the pleadings)
is always required. A dishonest plaintiff who knows that his opponent is
truthful but cannot give evidence (or call witnesses) in his defence will
exploit the situation and be ready to confirm his pleadings by sworn
evidence. Such a plaintiff is also capable of producing, in more than one
sense, evidence in support.
Secondly – and this is the important point – a judge may, on the
view I have expressed, charge a defendant on the solitary uncontradicted
evidence of the plaintiff, but he is not obliged to do so. All depends on
the credibility he gives to the single witness, and if he is not convinced
of the truthfulness of that witness-even if it is not readily apparent that
he is lying – he may decide not to accept the evidence and to dismiss
the action. On the other hand if the judge is wholly persuaded of the
truth of the evidence, and the defendant has merely denied the claim
and brought no contrary evidence, why should we always assume that
the judge has erred in appraising the evidence and order him not to rely
thereon and to dismiss the action?
In any event, by weighing the two considerations – the difficulties and
the wrong that might be caused to an upright plaintiff if corroboration
is asked for, and the wrong that may be done to an upright defendant
by a fraudulent claim if no such evidence is required – it appears to
me that the first prevails, because by reason of "the legitimate tactic" of
denial which we noted above, the danger of the harm that can be done
by "denying" defendants – denying but not calling evidence – is much
more imminent and more real than the danger of the opposite harm by
lying plaintiffs.
It may be observed here that under Jewish law as well-which classically
represents the concept that two witnesses are required to establish a
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matter – whilst one witness cannot bind the defendant, the evidence
may compel the latter to take an oath and only when he does so is he
free from paying. If he refuses to be sworn, although only one witness
gave evidence against him, he must pay (Shevuot 40a and elsewhere;
M.T. To'en veNitan 1:1 and 3:6; Hoshen Mishpat 87:1). One must only
emphasize, in order to avoid error, that the oath of a defendant denying
the evidence of another witness, is the oath of a party and not evidence
under oath since, as is well-known, in Jewish law a party is incompetent
to give evidence.
·
In brief, the rule is that the evidence of a single witness is not regarded
as being "contradicted" in the sense of sec. 6 unless it is contradicted by
a witness for the other side. Since in the present case the appellant did
not call any contrary evidence, there was nothing in law to prevent the
evidence of the single witness from being accepted even though it was not
supported and reinforced by other evidence.
8. "Wrongdoer" Disqualified as Witness
C.A. 41/75
NILi v. SHLOMI
(1976) 30(2) P.D. 3, 4, 6-7
The appellants sold their apartment to the respondents but did not fulfill their obligation
to transfer it. In an action for enforcement of the agreement, the vendors pleaded
illegality of contract but the Court rejected this plea and ordered them to transfer the
apartment on payment of the balance of the purchase price. The vendors appealed.
There was no dispute that the written agreement did not specify the true purchase price
agreed but a smaller amount, the difference to be paid to the vendors in the guise of
a loan that was not intended to be repaid. Each of the parties testified that it was the
other party which had instigated the drawing up of an agreement not disclosing the
full consideration, but the Court explicitly held that it was unable to say which version
was correct.
Cohn J.: The President of the District Court is to be congratulated for not
sitting back at ease and for not sparing effort or thought until he found
a means which satisfied him to prevent the wrongdoer from benefiting
from his wrongdoing. Since he did not believe the appellants' claim that
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concealment of part of the purchase price in the contract had an illegal
purpose, they had not discharged their evidentiary obligation. In this
regard the path pursued by the Court which heard the evidence is not to
be cast into doubt. The repugnance with which, as is well-known, we are
filled when illegality is pleaded by the parties themselves guilty thereof
naturally enough makes us suspect them of giving false evidence as well.
Just as they are not deterred from deception and lies in order to evade
tax (or some other breach of the law) they are also suspected of not being
deterred from deception and lies in order to succeed in trial. It is not for
nothing that in Jewish law, wrongdoers are incompetent to give evidence,
among them those "who take money that is not theirs" (M. T. Edut 10:4).
9. Disqualification of a Witness
CA 238/53
COHEN-BUSLIK v. ATTORNEY-GENERAL
(1954) 8 P.D. 4, J0-31
Silberg J.: At this point it will be asked, why indeed were the witnesses
not disqualified at the time of the actual sanctification of the marriage?
If infringement of the herem [the Salonica ban upon marriage not in the
presence often witnesses] disqualified the witnesses attending the ceremony,
surely the sanctification itself was invalidated?
The answer is to be found in Resp. Maharshakh 3:1 (cited from Freimann,
Seder Kiddushin veN1"ssu'in, 175). After. .. stating that in spite of numerous
cases at the time of "fraudulent sanctification in the presence of two
witnesses" in Salonica, he had never heard of a decision invalidating the
sanctification because of infringement of the herem by witnesses, he offers
a solution:
In my humble opinion, it seems that a possible reason for this is that
there is no reason for disqualifying the witnesses … since the infringement
occurred when they witnessed the sanctification and they were under no
prior disqualification before they attended the ceremony. It follows that
the witnesses were not disqualified until after the woman was sanctified.
Thus the sanctification is complete but the witnesses are evil men and
thereafter disqualified.
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The language is somewhat difficult but the idea is clear and simple: a
person who is disqualified as a witness by reason of some transgression
is so disqualified upon completion of the transgression -in this instance,
on completion of attending the act of sanctification, and by that time the
sanctification is perfectly valid.
Exactly the same idea, regarding a very similar question, occurs in Resp.
R. Moshe Rotenberg, Hoshen Mishpat 5 (quoted in Pithei Teshuvah to
Hoshen Mishpat 34: 5). The question there was the validity of evidence given
by witnesses … who by their very testifying in court had transgressed a biblical
prohibition. Was their testimony valid or not? The answer was that whilst a
transgression had been committed, there was no disqualification because
the disqualification was the result of giving evidence and commenced only
when that was complete.
Such "arithmetical" calculation of hours and minutes will doubtless seem
to many as being excessively formalistic or as insubstantial quibbling, but
that objection is not justified. Let us note that the very disqualification
of an "evil man" from giving evidence, in most cases issuing from a
biblical prohibition (see Sanhedrin 25a and Baba Kamma 72b) is ultimately
a formal disqualification … operating irrespective of the credibility of the
witness (see Shakh to Hoshen Mishpat 34: 1). Hence it is right that the
parameters of the disqualification should be zealously observed, in this
formalistic way, in order to reduce its actual application.
IO. Evidence of the Mentally Ill
See: LEVI v. STATE OF ISRAEL. p. 411.
11. Personal Knowledge of Witness
Cr.A. 20/61
SAHAR v. ATTORNEY-GENERAL
(1961) 15 P.D. 561,576,579, 581-582
The appellant, who was at one time Inspector General of the Israeli Police, had testified
in a civil action, that as a member of the police force he had not regarded a given person
in question as a suspect and on being asked by counsel to produce police files, he had
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PART FIVE: EVIDENCE
pleaded privilege. Some few weeks later, after such privilege had been removed in
respect of a number of files by order of the Supreme Court, he persisted in testifying
that he had not known that the person was then a suspect or that he had ever been such.
The appellant was subsequently convicted of having given false evidence. A suspended
sentence was imposed and also the maximum fine. He appealed against conviction and
sentence.
Silberg J.: Briefly, "suspicion" is the doubt harboured by one person about
another, whether it is reasonable or not. That is the correct meaning of
the term. If proof is necessary, it may be found in abundance in the
sources of Jewish law. "Whoever suspects proper people will suffer in
his own person" (Yoma 19b). "May my portion be of those who are
suspected but are innocent" (Shabbat 118b). " 'For they have dug a
ditch to ensnare me'… they suspected [Jeremiah] of lying with a harlot"
(Baba Kamma 16b). "Is the Holy One blessed be He suspect of punishing
without justice?" (Berakhot 5b). "Suspicion of the public… suspicion of
townspeople … " (Shabbat 23a with reference to the various degrees of
suspicion). More examples in the same vein are to be found throughout
the Talmud and later rabbinic literature down to modern times. In Yiddish
as well, the language of millions of Jews, the term "hashud" has the very
same significance-the doubt that gnaws in one's mind without becoming
a certainty …
The question of the "non-believing" witness (non-believing in the sense
of lacking positive personal knowledge of what he is attesting to) was
already dealt with in the Talmud, and it is interesting that the Talmudic
Sages not only considered him a false witness who transgresses the Ninth
Commandment, but they were also amazed that anyone could think the
opposite. A beraita (Shevuot 31a) says:
How do we know that a disciple whose master tells him, "You know
that if a hundred maneh [type of coin] were given to me, I would not
lie. At this moment someone owes me a maneh and I have only one
witness against him", may not join with that witness to give evidence
of what is owing to the master? Because Scripture says, "From a false
matter keep far" (Ex. 23:7). Is that indeed inferred from the words,
"From a false matter keep far"? Surely he would definitely be lying?
And the Torah says "Thou shalt not bear false witness against thy
neighbour" (Ex. 20: 13).
Thus a disciple who joins with a witness of his master to testify that
he personally knows that someone borrowed from his master a sum of
money is actually lying and there is no need to learn about the prohibition
from the words "From a false matter keep afar". The lie he utters is not so
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"distant" but very close, an intimate part of the very giving of the evidence.
That is the nature and obvious interpretation that the Sages attributed
to the expression "false witness" in the Ten Commandments. And that
is also … the natural and obvious meaning to attach to "false testimony"
that appears in sec. 117(1) of the Criminal Code Ordinance …
Sahar well knew that the impression left in the mind of the Court from
his evidence would be that the person involved was not a "suspect" in
the usually accepted meaning of the term and that the police had not
conducted any criminal investigation. It follows that the appellant lied
at least in the first part of his testimony before privilege was removed.
Even if in his heart – as learned counsel tried to persuade us – he was
thinking about something else such as a proven criminal charge or material
sufficient for putting him on trial, that was an unspoken condition, a
mental reservation, which is not taken into account when evaluating the
truth or falsity of sworn evidence. Our Sages have already pointed out that
when a person is sworn, he is admonished: "Know that we do not swear you
for what you have in your heart but according to our mind and the mind of
the court" (Nedarim 25a. As an example of what a person has in his
heart, a story of deceit is told in the Talmud, known as "Raba's cane".
A dishonest borrower was asked to swear that he had repaid the lender.
Thereupon he brought a thick hollow cane and secreted the money inside.
He then gave the cane to the lender to hold for a moment whilst he swore
on a Torah scroll that he had paid all that was due from him. The lender
in rage broke the cane he was holding and the money fell out).
The modern legislature considers it unnecessary even to give an explicit
warning of the kind mentioned in the Talmud as above.
See:
DEKUSSIAN v. STATE Of ISRAEL.
Part 6. Penal Law, p. 478.
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PART FIVE: E VIDENCE
12. Contradictory Evidence on Minor Matters
Cr. A. 106/ 53
SULIMAN et al. v. ATTORNEY-GENERAL
(1953) 7 P.D. 824, 826
This was an appeal against conviction for robbery, relying on various inconsistencies
in the prosecutions evidence and in the evidence which each witness had given as
compared with what he had told the police, the Examining Magistrate and the Court.
AssafJ.: As regards inconsistencies disclosed in the evidence, this Court has
already said that not every inconsistency renders the evidence contradictory.
An inconsistency in substance must be distinguished from an inconsistency
in some minor detail. If a witness was not precise as to a detail in his
evidence, that does not mean that his evidence was false. Actually, false
witnesses who harmonise their remarks can give evidence that is perfectly
consistent, whereas truthful witnesses may well contradict each other and
even themselves in some unimportant particular, especially the incidental
circumstances of the case, since their attention wandered in the confusion
and excitement following the event.
During the Mandate this Court also held that inconsistencies in the
evidence do not as such disqualify it unless they give rise to doubt about
the defendant's guilt (Cr.A. 42/ 47 Faraj v. Attorney-General (1947) A.L.R.
Vol. I, 422).
All this is of ancient lineage. Rav, the foremost Talmudic Sage, put his
seal upon it by closely examining witnesses whose evidence seemed to be
consistent ( Y. Sanhedrin 4:9).
When he saw witnesses giving evidence in the same concerted language,
he would suspect that they were lying and had deliberately planned
their testimony and would cross-examine them. If, however, they did
not speak in the same terms, he did not examine them provided that
the evidence was consistent (Rosh to Sanhedrin 3:31; Tur, Hoshen
Mishpat 28) .
.. If two prophets do not prophesy in the same style, a fortiori ordinary
people do not speak in the same terms" (Resp. Zikhron Yehudah 72).
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GENERAL
13. Distinction Between Contradictions on Substantive and Marginal Issues
Cr. A. 3/48
KATZ-COHEN v. ATTORNEY-GENERAL
(1949) 2 P.D. 681, 68~87
This is an appeal by the defendant against his conviction of killing his wife.
Assaf J.: Husband and wife were married in 1938 and from the very
beginning they quarrelled because of the excessive jealousy of the husband.
On the morning of the very day when the killing occurred … a bitter dispute
broke out between them. The woman's father said that the whole business
must stop and that his daughter and her child should come and live with
him. Before that could be done, the woman was killed, at about 4:30 in
the afternoon. Neighbours who entered the apartment soon after hearing
shots found the woman dying. They saw nobody in the house apart from
her. The lower Court was satisfied as to the credibility of the prosecution
witnesses and in reliance thereon came to the following conclusions: The
accused had been alone with his wife in the apartment when the murder
was committed, the shots were fired by him with a revolver he had bought
two months previously, and the spent cartridges found in the place matched
almost identically the bullets the accused had bought with the revolver. In
the opinion of the lower Court the prosecution had proved the first and
third constituents of the offence of murder, i.e. "resolve" and "preparation"
to kill, but it had doubts about the second constituent, whether he had
killed "in cold blood". It therefore acquitted him of premeditated murder
and found him guilty of manslaughter.
The accused did not admit his guilt but pleaded that it was entirely
untrue that he had bought a revolver and bullets, or that he was at the
scene of the crime when the killing occurred: he had gone to Petah Tikvah
to talk to his nephew whom he had been asked to look up. The lower Court
did not give any credibility to the accused or the witnesses he had brought
in his defence …
The second important witness for the prosecution was Rahel Wiener,
who places the accused at the place and time of the crime. She testified
that when she went out onto the balcony of her apartment, after hearing
the shots, she saw the accused in the road adjoining the house, walking
quickly away…. At the same time she heard him shouting "Magen David,
Magen David'' ("Ambulance, ambulance').
371
PART FIVE: EVIDENCE
In the conclusion to which the lower Court came, it said:
The accused was at that time .. .in his apartment with his wife and there
was nobody else there. This emerges from the evidence of the accused
who said that he came home about noon and from the evidence of
Rahel Wiener who said that immediately after hearing the three shots
she saw the accused rushing away, shouting "Magen David, Magen
David." These facts are confirmed by the evidence of the witness who
ran to the place instantly after hearing the shots and who testified that
they found no one in the apartment or on the staircase. There was
also the evidence of the driver who took the accused to Petah Tikvah
within half an hour of the killing.
Counsel submitted that the lower court had unjustifiably come to incorrect
and far-reaching conclusions from this evidence and the facts that had been
shown. The accused said that he had left home about an hour before the
killing. The court did not believe him. But how had the court come to the
conclusion that no other person was there? Moreover, Mrs. Wiener told
the police that she had gone out on to her balcony only ten minutes
later and not at once. Her evidence that she heard the accused shouting
"Magen David, Magen David" was contradicted by another witness who
said that she had heard the woman shouting "Magen David, Magen David."
The conclusion of counsel was that the accused was not at the scene of the
crime at all.
14. I do not agree with him. That there was no other person in the home
follows from what was said by the witnesses who rushed there as soon
as they had heard the shots and found nobody else there or on the
staircase. As to the time when Mrs. Wiener went out on to her balcony,
she explained to the Court, that she had meant ten seconds; the Court was
satisfied that she had so meant. We think that this is not an instance of
second thoughts, if a witness himself explains what he said in an acceptable
manner (see Hoshen Mishpat 29). It is also apparent that Mrs. Wiener ran
to the balcony at once after hearing the shots, fearful of her young son
who was then in the street below. As to what another witness said that
she had heard a woman shouting "Magen David, Magen David", which
counsel regarded as completely inconsistent with Mrs. Wiener's evidence,
it is possible that another woman did so or that what one thought was
a man's voice another thought was a woman's voice. But that was not
the main element of Mrs. Wiener's evidence but the fact that she saw the
accused leaving the house immediately after the three shots were heard.
That is decisive.
This is the point at which a general observation may be made about
counsel's submissions, in which he tried to show certain inconsistencies in
372
GENERAL
the evidence of the prosecution's witnesses and on that basis claimed that we
should look upon it as contradictory evidence. We are of the opinion that
not every inconsistency renders the evidence such. An inconsistency as to
the substance of a matter is to be distinguished from one affecting marginal
issues (see Sanhedrin 41a). If one witness is not precise as to the particulars,
that does not mean he is a false witness. It is in fact false witnesses who
have connived together that are capable of giving perfect evidence without
any inconsistencies, whereas truthful witnesses may contradict one another
and indeed be inconsistent themselves in unimportant details, especially as
regards incidental circumstances, since they may become confused by the
excitement the incident created.
Cr.C(Misc.) 540/ 85
STATE OF ISRAEL v. DADON
(1987) 3 P.M. 127, 130
The accused was charged with carrying out an indecent act by force in violation of sec.
354(a) of the Penal Law, 1977. The issue before the Court was the weight to be attached
to the evidence of a minor given to the Juvenile Investigator but not to the Court, and
the corroboration of such testimony.
Pilpel J.: The Sages taught (see M. Sanhedrin 5:1) that witnesses are to be
examined as follows:
They used to examine them [i.e. the witnesses] with seven searching
queries: in which septannate [of the Jubilee] was the crime committed?
In what year? In what month? On which day of the month? On what
day? At what hour of the day? And, at what place?
The Mishnaic rules reflect the importance attached by the Sages to
the examination of witnesses, and the need to establish the basic factual
framework of the evidence which consists of the time, the place and the
alleged crime. It is inconceivable that the victim of the attack, a threeyear-old female minor, should have been interrogated in such a brief
and superficial fashion. As any father knows, it is extremely difficult to
get any three-year-old to express himself or herself in a coherent fashion.
It is, therefore, also somewhat disturbing to find that the testimony given
to the Juvenile Investigator was as concise and to the point as if it had
been given by a mature girl.
It is difficult to imagine that a three-year-old could have provided the
373
PART FIVE: EVIDENCE
Investigator with such a short and lucid report of the events. In my
opinion, the Juvenile Investigator ought to have asked the child many
more questions concerning the alleged incident (in accordance with the
second mishnah in the above-mentioned chapter: "The more exhaustive
the cross-examination, the more praiseworthy the judge") and should have
written down her answers in a full and exact form.
14. Retraction by Witness
C.A. 238/ 53
COHEN-BUSLIK v. ATTORNEY-GENERAL
(1954) 8 P. D. 4, 26-27
Silberg J.: It happened that a young man spread a report that he had
solemnly married his brother's daughter, a girl of twelve or thirteen, and he
produced in evidence a deed certifying the act of solemnization. The deed
was signed by two witnesses and "confirmed [that is to say, the signatures
of the witnesses were authenticated] by three by-standers" [that is, persons
who were not expert religious judges or expert at all]. Two or three days
later, the matter came before the community and the witnesses tried to
retract. One of them said that nothing like it had happened. The other
said that it was true that the young man had given the girl a certain
sum of money but he had said nothing to her at all (about marrying
her thereby): all he had said to the witnesses was "Be my witnesses" but
the girl had not heard that. Thus there were grounds for believing that
the entire matter was a fabrication. What is to be done when the law
is that a witness cannot go back on his original testimony (Ketubot 18b
and elsewhere)? The only question remaining is the value to be attached
to the deed, whether it could serve as evidence of the solemnization of a
marriage. R. Shmuel di Medina (Rashdam) was asked to make a thorough
investigation. He considered the case in all its aspects and ruled that the
marriage was beyond all doubt invalid and the girl remained unmarried
(Responsa, Even haEzer 21).
374
GENERAL
Cr. A. 421/71
MYMARAN v. STATE OF ISRAEL
(1972) 26(1) P.D. 281, 287
The appellant was accused and convicted of rape. The complainant was aged thirteenand-a-half at the relevant date. The court had accepted evidence of what had occurred
that was given by her to the youth investigator. During the trial the complainant turned
fourteen and was called to give evidence for the defence. Under oath, she denied her
previous evidence.
Cohn J.: A lesson which experience teaches must be added to the simple
psychological fact that in seeking the truth, earlier evidence is to be
preferred to later evidence. If a witness goes back on his original evidence
and testifies the opposite, he does so not in order to correct a bona fide error
but, generally, to achieve a purpose that has nothing to do with the truth,
whether he has been influenced by those involved in the matter or whether
he anticipates some benefit from changing his evidence, or whether his new
evidence has been adapted to the requirements of the trial. It is perhaps this
consideration that lies behind the provision of Jewish law that a witness
cannot go back on his earlier evidence ("Once a witness has testified, he
cannot retract", Sanhedrin 44b; Makkot 3a and elsewhere), even if he
gives reasons for doing so, such as that he had been mistaken or had
spoken unwittingly and then remembered that it was otherwise or had
spoken in fear (M. T. Edut 3:5).
See: KATZ-COHEN v. ATTORNEY-GENERAL, p. 371.
15. Circumstantial Evidence
See: NAGAR et al v. STATE OF ISRAEL, p. 396.
See: GOLDSTEIN v. STATE OF ISRAEL, p. 405.
375
PART FIVE: EVIDENCE
16. Probative and Constitutive Evidence
C.A. 99/ 63
PELEG et al. v. ATTORNEY-GENERAL
(1963) 17 P.D. 1122. ! 128
This was an appeal against a refusal to grant probate of an oral will made on two
occasions just prior to death and before separate pairs of witnesses, leaving his property
to stepchildren who cared for him after his wifes death. The property consisted of the
testator's share of his wifes estate.
Cohn J.: There remains the question of the difference between probative
and constitutive witnesses. This difference has become the backbone of
the law of evidence in matters of personal status, ever since the judgement
of this Court in C.A. 26/51 Kutik v. Wolfson (see below). For myself,
without this difference I cannot imagine the possibility of civil jurisdiction
in matters to which religious law applies. In the present case there can be
no doubt that even if a death-bed will made orally, not before witnesses
(constitutive witnesses), is valid, under religious law it still requires two
competent witnesses (probative witnesses) to evidence it, unless the heirs
make acknowledgement, since the admission of a party is equal to the
testimony of one hundred witnesses. If indeed religious law applies not
only to the nature and validity of a will but also to its proof, that will
not assist us at all since fully competent witnesses under religious law
are almost impossible to find today: at least we are unable to investigate
with any thoroughness their competence in the strict religious sense.
The learned judge regarded the distinction between probative and
constitutive witnesses… as something artificial….lt is very difficult to establish when witnesses
are required under Jewish law for the purpose of the law of evidence
in the English sense and when the requirement for witnesses under
Jewish law is a procedural requirement under English law. It is perhaps
impossible to import into English law the concepts of evidence and
witnesses of Jewish law. In the latter the question of testimony and
admissions by a party, of evidence in matters of marriage and divorce
and generally in civil cases derive from the same source and these matters
are closely related.
Everyone who is acquainted with the Talmud and the later authorities will
376
GENERAL
agree with the learned judge that such is the situation. Nevertheless, there
is no escaping this "artificiality", and the civil courts must give regard
to it so long as they have jurisdiction under religious law. As Silberg
J. has already said in C.A. 26/51 Kutik v. Wolfson (see below), such
a situation is no different from that which prevails when a court is obliged
to proceed according to foreign law and elucidate the substantive foreign
law and decide according to that law alone; but insofar as the procedural
rules of that foreign law are not part and parcel of the substantive law,
the court may not apply them but they must yield before the court's
municipal procedural rules. Every occasion of choice of law entails a
confusion of disparate elements. However, it seems to me that in our
special circumstances such confusion is the lesser of two evils.
17. Examination of Witnesses
c,.C.(Misc.) 540/85
STATE OF ISRAEL v. DADON
(1987)(3) P.M. 127, 130
The accused was charged with carrying out an indecent act by force in violation ofsec.
354(a) of the Penal Law, 1977. The issue be/ore the Court was the weight to be attached
to the evidence of a minor given to the Juvenile Investigator but not to the Court, and
the corroboration of such testimony.
Pilpel J.: The Sages taught (see M. Sanhedrin 5:1) that witnesses are to be
examined as follows:
They used to examine them [i.e. the witnesses] with seven searching
queries: in which septannate [of the Jubilee] was the crime committed?
In what year? In what month? On which day of the month? On what
day? At what hour of the day? And, at what place?
The Mishnaic rules reflect the importance attached by the Sages to
the examination of witnesses, and the need to establish the basic factual
framework of the evidence which consists of the time, the place and the
alleged crime. It is inconceivable that the victim of the attack, a threeyear-old female minor, should have been interrogated in such a brief
377
PART FIVE: EVIDENCE
and superficial fashion. As any father knows, it is extremely difficult to
get any three-year-old to express himself or herself in a coherent fashion.
It is, therefore, also somewhat disturbing to find that the testimony given
to the Juvenile Investigator was as concise and to the point as if it had
been given by a mature girl.
It is difficult to imagine that a three-year-old could have provided the
Investigator with such a short and lucid report of the events. In my
opinion, the Juvenile Investigator ought to have asked the child many
more questions concerning the alleged incident (in accordance with the
second mishnah in the above-mentioned chapter: "The more exhaustive
the cross-examination, the more praiseworthy the judge') and should have
written down her answers in a full and exact form.
378
Chapter Two
EVIDENCE IN CIVIL CASES
A. Admissions
I. Scope and Types
C.A 26/ 51
KUTIK v. WOLFSON
( 1951) l P.D. 1341, 1343-1344, 1346-1347
Silberg J.: This is an appeal against a judgment of the Tel Aviv District
Court, holding that the appellant is the father of the child born to the
unmarried respondent, and charging him with maintenance of the child
and the expenses of the pregnancy and delivery.
The submissions made in this appeal are largely legal and accordingly
it is unnecessary to reiterate the facts and the evidence. It is enough to
point out that the learned judge decided the question of paternity also
upon the admission of the appellant which was made (a) outside the court
and (b) before the birth of the child – two details by means of which
appellant's counsel seeks to attack the judgment, as will appear below….
The question on which the appeal turns is when and upon what proof
will Jewish law order a defendant to pay maintenance for a child born
to an unmarried woman? The answer which counsel propounded was that
it does so only when the defendant makes his admission in an action
in court. He relies on Even haEzer 71 :4 – "When a man has intercourse
with an unmarried woman and she bears him a child, he is required to
maintain the child if he admits that it is his child." "Admits", counsel
urges, means "admits in court and after the child was born", since the
rule says "when a man has intercourse with an unmarried woman and she
bears him a child … ".
379
PART FIVE: EVIDENCE
What is the nature of an admission under Jewish law-a mode of proof
or a basis for a cause of action? In Talmudic terms, is an admission
"a ground of credence" or "a ground for acquisition?" There is no short
and simple answer, for it all depends on the kind of admission, its contents
and the occasion when it is made.
Two kinds of admission exist in Jewish law, although they have not
been precisely defined in the literature: (a) an abstract admission of the
obligation of the person making it or of the entitlement of another; (b)
a concrete admission of facts. A further division that cuts across the
first is (c) an admission of truth, that one does not know that a thing
is untrue, and (d) a "false" admission, which the person receiving the
admission and the court know is untrue.
Without a doubt, an admission coming under (a) and (d) is "a ground for
acquisition", i.e., it gives rise to the obligatory or real right of the person
receiving the admission. A classic example of "an admission of falsehood"
in the abstract is the well-known admission of the proselyte Issur, * (Baba
Batra 149a; see Tosafot to ibid. 44b and Baba Metzia 46a; Noda biYehudah,
(Mahadura Kamma) 30; Resp. Haham Tzvi 16; cf. Hoshen Mishpat 40:1
and annotations thereto and note the title of the section "The Law Relating
to a Person Who Binds Himself to Another'l
On the other hand, I equally have no doubt that an admission under (b)
and (c) is "a ground for credence", testifying with the force of a hundred
witnesses that the facts admitted occurred. Here no special formality is
necessary, neither court nor witnesses, neither formal mode of acquisition
nor deed. It is enough that witnesses subsequently appear in court and
testify that they heard the admission, although the person making it knew
nothing of their presence and did not say to them "You are my witnesses" or
"Be my witnesses." (This ensues from the discussion of "an admission after
loan" in Sanhedrin 30b and Hoshen Mishpat 30:5-6.) All the formalities
involved in admissions are applicable only to an abstract admission "which
is not true"; i.e. an admission that does not speak to the past but is
* Jssur on his deathbed wished to transfer money he had deposited with Rava to R. Mari,
his "illegitimate" son (by Rachel, the daughter of Mar Shmuel) who was conceived "not in
holiness", i.e. whilst Issur was still a heathen, but who was born "in holiness", i.e. after
Issur had converted to Judaism. The matter was very urgent and R. Mari was far distant.
For reasons explained in the Talmud it was not possible legally to employ any other mode
of acquisition. lssur therefore "admitted" that the money belonged to R. Mari, who thus
"acquired" it. The admission (udita) relates to something belonging to the person making the
admission, stating that it actually belongs to another, although everyone knows otherwise.
380
EVIDENCE IN CIVIL CASES
intended, by mere utterance and deliberately, to create an obligatory
or property right that did not exist before the admission was made. In
view of this basic logical distinction one can, I think, explain sensibly the
entire law relating to admissions and reconcile the apparent contradictions
that may be met in this area. But the present is not the occasion to enlarge
thereon.
What does all this tell us regarding the problem of the present appeal?
That even the admission of paternity by the appellant, which was not
an abstract admission of an obligation to maintain the child nor on the
face of it "a false admission", is in the view of Jewish religious law,
"a ground of credence", and is thus not a norm of Jewish law. Hence
the last ground which counsel invoked for employing the rules of the
Jewish law of evidence~its restrictiveness-regarding the determination
of the appellant's paternity, falls away. The learned judge was therefore
at liberty to decide what he did in accordance with the provisions and
principles of secular law.
2. Weight
C.A. 168/55
CONRADS et al. v. TRUSTEES OF THE WILL OF Z. LEVI dcd.
(1956) 10 P.D. 1310, 1315
Silberg J.: The testator admitted that "all the above-mentioned matters
were arranged in the most effective manner… each according to its (mode
of) acquisition." The admission of a party is equivalent to the evidence of
a hundred witnesses and binds the court to give judgment accordingly, as
if it were proven that such indeed was the case. Now, Jewish law enables
a thing which does not yet exist to be acquired upon its coming into
existence by annexing existing capital to future income-"and this is not the
vesting of a nonexistent thing for the capital exists and the income thereof
is annexed" (M. T. Mekhirah 23: 1), and a debt can also be vested, though
not by kinyan sudar or agav (two forms of legal acquisition) but in the
presence of all three parties concerned in the transaction or by deed signed,
sealed and delivered (ibid. 22:9; Hoshen Mishpat 205:9, 66 and 126) and in
fact there is nothing that cannot be vested in one manner or another under
381
PART FIVE: EVIDENCE
Jewish law. Therefore, the verbal admission as above of the testator that
the things mentioned in the will were vested "each according to its (mode
of) acquisition•~ created a kind of estoppel barring the heirs from attempting
to show that no proper vesting had been effected when the will was drawn
up or before then. The force of an admission in Jewish law is so strong
that in the view of one of the leading Tosafists, a person who owns no
land at all can vest by kinyan agav (transfer of ownership of something
as an adjunct to transfer of title in land) any movable property whatsoever
by virtue of an admission that he possesses such land.
It appears to Rabbenu Tam that the reason (why even a person who
owns no land can utilise kinyan agav) is because he admits that he has
land and assumes an obligation, having vested it in his neighbour by
means of land, even if several witnesses contradict him, since a party's
admission is equivalent to a hundred witnesses and there is no fear
that it may appear to be a falsehood, as we have found in the case of
Issur the proselyte. (Tosafot to Baba Batra 44b).
Even those who do not acknowledge this extreme rule and think that
an admission cannot create something ex nihilo-for example, Rema to
Hoshen Mishpat 202:7, or Bet Yosefto Tur, Hoshen Mishpat 202:1, do not
dispute that a person who makes an admission against interest can properly
and irrevocably vest his possessions, since his admission is equivalent to
the testimony of a hundred witnesses. (Consider carefully the observations
of Rema lac. cit.; Be'er Hetev, ibid.; Hoshen Mishpat 103:4.)
C.A. 211/63
YEHEZKEL v. KALPER et al.
( 1964) 18(!) P.D. 563, 561,571
Halevi J.: The grounds of the judgment here involve a question of principle:
how far will a party be bound by the version he has given in evidence, and
more particularly how far will he be prevented from relying on other
evidence in his favour which contradicts his own testimony?
There can be no doubt that a party's evidence can serve as an "admission",
which can be used by the other party. As Lord Jessel said in Ex parte
Hall [1882] 19 Ch. D. 580, 583: "Any statement made by a man on oath
may be used against him as an admission".
In Hebrew, one can say that a party's admission is involved here, but
this does not entail-as was suggested to us-the application of the rule
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EVIDENCE IN CIVIL CASES
of Jewish law that "the admission of a party is equivalent to the testimony
of a hundred witnesses". This rule means, as Rashi explains in Baba
Metzia 3b, that "if a person admits a debt of a maneh and witnesses
appear who contradict him, saying that he owes nothing, he is not exempt,
since the admission of a party is equivalent to a hundred witnesses". Or as
Rema puts it in Hoshen Mishpat 79:l, a party who makes an admission
"is believed in respect of himself more than a hundred witnesses". That
is to say, his admission replaces all other evidence and binds him even
if such other evidence is to the contrary.
See: ROSENBERG v. KARMARJ er al., p. 392.
3. Conditions for Application of Rule Tacitare est consentire
C.A. 502/69
BET YANNAY…LTD. v. HOLLANDER
(1970) 24(1) P.D. 378. 388-389
Since becoming a member of the appellant cooperative agricultural society, the
respondent had, according to the society's books, accumulated a number of debts.
Cohn J.: The rule is that silence alone does not give rise to estoppel:
"Where there is no obligation to answer and speak, no inference may be
drawn from the silence" (see Everest and Strode, Law of Estoppel, 3rd
ed., 290). If a person is under no obligation to act and protest when he
receives a demand for payment which he does not admit that he owes, then
his silence and inaction cannot create estoppel.
And again, I know of no such obligation. If payment of a tax is demanded
of me and I know that by law I am not obliged to pay it, I cannot become
liable for it merely by ignoring the demand for payment and throwing it
in the wastepaper basket; and this applies to demands for payments based
on a contractual or other obligation when in fact no such obligation exists.
This is what we learn from the Mejelle (sec. 67): "A person's silence says
nothing, but some would view silence as admission. In other words, one
383
PART FIVE: EVIDENCE
cannot say of a person who has said nothing that he has said something
definite; but where he ought to have spoken, his silence is like an admission
and notice."
Jewish law is somewhat different from Moslem law. There the rule is
that a person's silence indicates nothing, whereas in Jewish law the rule is
that tacitare est consentire (silence constitutes agreement) (Yevamot 87b).
There are, however, exceptions that balance the rule. In Moslem law, the
exception occurs where a person was under an obligation to speak but said
nothing. With us the exception is where a person was under no obligation
to speak and kept silent (see Hoshen Mishpat 81:7-"If the plaintiff says,
'You owe me a maneh' and the defendant keeps silent, and then the plaintiff
says to the witnesses, 'You are my witnesses' and the defendant still keeps
silent, his silence has no effect since silence is not an admission except where
a person first makes a statement and the other agrees, and then when the
plaintiff calls upon bystanders to be his witnesses, the defendant remains
silent. Where, however, a person keeps silent throughout, he can say
'I did not think that an answer was necessary' "). A defendant has no duty
to say "yes" or "no" when someone claims that he owes something, but
he may remain silent; if later on it is claimed that his silence amounted to
an admission, he may say that he did not think it necessary to respond.
Here also the respondent could say to the appellant, "I did not think
it necessary to react to your requests and arguments, I had no duty to
respond, and since. I kept silent throughout my silence does not amount to
an admission."
4. Ambiguous Admissions
C.A. 505/64
ABU YON AS et al. v. ZBEYDAT et al
(1965) 19(4) P.D. 169, 172-173
A parcel of land belonged to the appellants and the first respondent in equal shares.
When the parcel was partitioned, the respondent claimed half. of one plot and the whole
of another. His claim succeeded. The appellants unsuccessfully asked for a declaratory
judgment that they were half owners of the other plot.
384
EVIDENCE IN CIVIL CASES
Silberg J.: The facts of the present case remind us of the incident where
application was made of the well-known talmudic rule: "If one says 'I
did not borrow' it is as if he said 'I did not repay' " (Shevuot 41b).
A person there said to his neighbour, "Give me the hundred zuz I lent
you" and the neighbour replied "Nothing of the kind ever occurred", and
then brought witnesses that he had borrowed the money but repaid it.
Rava said that the law is, "If a person says he did not borrow, it is as if he
said he did not repay". Rashi (ad foe.) explains "as if he said he did
not repay" as meaning that since he did not borrow, as he has asserted,
he therefore did not repay. However, there are witnesses that he did borrow
and they are believed as regards the loan but not as regards the repayment,
since the admission of a party is equivalent to the testimony of a hundred
witnesses (cf. M.T. To'en veNitan 6:3; Hoshen Mishpat 79:l) …
I am well aware that the above talmudic rule does not bind the civil courts.
Had the learned judge held that he believed the witnesses … notwithstanding
the inconsistency between their evidence and the defendant's own version
as such, I would have said nothing, but it seems to me from the recital of
the facts by the learned judge that he paid no attention to this inconsistency
and that it did not serve him as a consideration in deciding the question
of credibility.
B. Presumptions
1. A Person Does Not Discharge a Debt Before It is Due
C.A. 332/76
GRAND HOTEL THEODORE HERZL LTD. v. DAKLO
(1977) 31(1) P.D. 228, 234-235
Cohn J.: Secondly, the vendors argue and the learned registrar decided,
that the purchasers could not plead that the date for payment of the
balance of the purchase price had not yet arrived since they had (earlier)
paid the vendors the amount they considered to be the balance, a sure
385
PART FIVE; EVIDENCE
sign that it did not occur to them at all that the terms of clause 4(c)
of the original contract might defer the payment. The learned registrar
attached considerable importance also to the letter which the purchasers'
lawyer wrote to the vendors when he sent them the money, from which
it would appear that the purchasers thought they were then bound to pay
the balance of the price (as they themselves understood it).
I do not suggest that the vendors are debarred from arguing that they
paid what they did before the due time. No one argues-or thinks-that
by paying the vendors half a million lira when they did the purchasers
adversely affected the vendors' position. On the contrary, that payment
changed their position to the good, and I have never heard that the good
is to be penalised in the same way as the bad.
Some Sages of the Talmud decided that a debtor is not believed when
he says he paid in advance, since the presumption is that a person does
not do so (Baba Batra 5a-b). Although this is a minority view (Resh
Lakish and Mar bar R. Ashi as against Abaye, Rava, R. Pappa and
R. Huna de R. Yehoshua) the law was so decided. But that is only
where the defendant claims that he paid in advance and is no longer
bound to pay and the plaintiff denies the payment, for then the defendant
is required to take an oath to prove that he has paid (M. T. Ma/veh
veLoveh 14: 1). The presumption was further restricted to loan and hire
and did not apply in bailment and sale or otherwise (Hoshen Mishpat 78,
annotations and Shakh, ad loc.). In any event the presumption cannot
displace evidence that the date when the debtor made payment was the
date agreed upon by him and his creditor.
Even had the purchasers and their advisers thought that they must
pay the balance immediately and the terms of clause 4(c) of the original
contract were not applicable to them, that is no reason to stop them now
from admitting their error, because that error only caused the vendors to
profit financially.
2. Tacitare est consentire
See:
BET YANNAI…LTD.
V.
HOLLANDER,
p. 383.
386
EVIDENCE IN CIVIL CASES
3. A Person Does Not Implicate Himself
C.A. 384/61
STATE OF ISRAEL v. PESLER
(1962) 16 P.D. 102, 103, 106-107
Cohn J.: This is an appeal by the State against a decision .. .in favour of the
respondent, granting her a declaratory judgment that she was the "common
law" wife of the late Aryeh (Leon) Schiff, and was living with him at the
date of his death …
Marriage by repute or marriage de facto as distinct from marriage de
Jure is not the preserve of Scottish law alone. We find it or something
like it in most legal systems. But whereas in Scottish law, as in Jewish
religious law, cohabitation is regarded as one of the modes by which a
"wife is acquired", in most other systems persistent reputed cohabitation
does not serve as an alternative to the marriage ceremony but merely as
evidence of the subsistence of a marriage. The fact that a man and woman
have lived together continuously for some time as married persons creates
a presumption that they are in fact lawfully married or constitutes prima
facie evidence thereof…
The doctrine of this issue is simply a part of the important rule that
when a man and woman are living together in apparent matrimony,
so that they are accepted by the community as husband and wife, they
are presumed, in the absence of contrary presumptions or proofs, not
to be violating the due order of society and breaking the law, but to
be in fact married (Bishop, Marriage, Divorce and Separation (1891)
vol. I, 405-6).
The same presumption is found in Jewish religious law. A person is
presumed not "to put aside permitted food and eat what is forbidden"
(Gittin 37b; Bullin 4a), i.e., where a person is faced with the alternative of
doing something which is allowed or something which is prohibited, the
presumption is that he will do the former and not the latter…. Silberg J.
has anticipated me in writing that this presumption … forms the basis of the known presumption that 'no man turns his
intercourse into an act of prostitution' (Ketubot 73a) and it normally
converts the cohabitation of a man and woman into marriage by way
of intercourse according to the Torah, making it necessary for her to
387
PART FIVE: EVIDENCE
receive a get [bill of divorce] (Principia Talmudica (in Hebrew) 113,
note 64).
As to the specific matter involved here – cohabitation over a lengthy
period-a particular presumption exists in Jewish religious law:
When a man and woman come from overseas and he says "She is my
wife" and she says "He is my husband"-the death sentence for adultery
is not executed in their regard. Where a presumption arises (that they are
husband and wife), the death sentence for adultery is executed. When
does the presumption arise … after thirty days ( Y. Kiddushin 4: 10).
In terms of the contemporary law of evidence, the fact that a man and
woman live together is not in itself sufficient for her to be regarded as a
married woman for criminal purposes; that is to say, if another man has
intercourse with her, he is not charged with adultery by reason only of the
woman living with the first man. But where the couple are presumed man
and wife for thirty days that is sufficient for the conviction of the other
man as an adulterer.
The fact that this presumption does not create, so to speak, a married
status and does not change a single woman into a married woman but
is simply one way of proving that the female participating in the act
of intercourse was a married woman forbidden to the male, emerges clearly
from the context in which the rule appears in Maimonides. Before he cites
the presumption mentioned above, he lays down two rules of evidence
(M. T /ssurei Bi'ah l:19-20):
Witnesses are not required to see the adulterers actually copulating… but
when they are observed embracing one another in a sexual manner
they are condemned on such evidence and we do not say perhaps they
were not copulating, because the presumption arising from this form of
behaviour is that they were copulating.
Whoever is presumed to be a kinsman is adjudged on the basis of
that presumption although there is no evidence that the latter is a
relative (and due punishment is exacted on the strength thereof)… .It is
related of a woman who came to Jerusalem bringing with her a young
child whom she reared presumptively as her son. He had intercourse
with her and she was charged and sentenced by the bet din [religious
court]. Proof of this rule lies in what the Torah decides in the case of
one who curses his father or fatally strikes him. Have we clear evidence
that the victim is his father? Only presumptively. The same applies to
other relatives.
It must be noted that the presumption that a person will not put aside
388
EVIDENCE IN CIVIL CASES
permitted food and eat what is forbidden, like the presumption that no
man makes his intercourse into an act of prostitution, serves as evidence
which the law itself provides and which, therefore, a party need not adduce.
It is otherwise with the presumption of thirty days' cohabitation as man
and wife or the presumption of kinship. These arise from repute, matters
of public knowledge for those interested, and need to be proved as such
in court. The common denominator of these two different presumptions
is that they are both part of the law of evidence and have nothing to do
with substantive law of marriage.
4. The Holder of a Deed is at a Disadvantage
See:
MIZRAHI
v.
YADID,
Part 10, Commercial Law, p. 783.
5. The Holder of a Deed has a Lawful Claim
See: BEN SHITREET v. BEN SHITREET. Part 10, Commercial Law, p. 782.
6. A Signatory Knows the Contents of the Deed
c.c. 364/75
SHIMONI v. MIF'ALE REKHEV ASHDOD LTD.
(1977) I P.M. 444, 446, 454-455
The plaintiff claimed damages from the defendant for breach of contract to deliver a
truck. One of the arguments of the defe_ndant which is material in this case was that the
delivery date agreed upon was merely "estimated': and that it was stipulated expressly
in the contract that this date was not binding on the defendant.
Tirkel J.: The final outcome accords with Jewish law, too, as set
out in Hoshen Mishpat 61: 13: "Whosoever pleads against his wife's
389
PART FIVE: EVIDEN CE
ketubah [marriage document] that he was uneducated and did not
understand when the ketubah and the terms therein were read out during
the marriage ceremony, is not heard". The same view is expressed by Bet
Yosef in the name of Ribash in sec. 480: "The same applied with regard to
other particulars of a deed to which attention must be paid, and no one is
to be heard to say that he did not pay attention". Siftei Kohen adds, ad
/oc., that "even if it is known that he does not understand the language of
the deed, he is bound thereby because he adopted it and kept silent".
That is the law which, in my humble opinion, applies to the present case,
but cf. Z. Warhaftig, The Law of Contract in Jewish Law 232-239, dealing
with the validity of a standard contract, or of a standard term that is
inconsistent with some other contractual term, either in law or in logic.
7. Omnia praesumuntur legitime fact a
See:
STATE OF ISRAEL
V.
PESLER,
p. 387.
8. Witnesses Have Satisfied Themselves as to Capacity of Signatory
See:
SHARABI
v.
SUBERI.
Part 10. Commercial Law, p. 784.
C. Modes of Proof
1. Matters of Expertise
C.A. 407/ 60
A. v. B.
(1961) 15 P.[). 212,216
The appelfant claimed that the respondent was the father of her child. He refused to
undergo a blood test. The action was dismissed for lack of evidence.
390
EVIDENCE IN CIVIL CASES
Cohn J.: Appellant's counsel voiced another grievance, that the learned
judge who had seen both the child and the respondent did not in his
judgment say anything about his impression concerning the likeness of
the two. In fact, counsel submitted, they clearly and obviously resembled
each other. With all respect, the learned judge acted wisely in keeping his
impression to himself. If he saw no resemblance, his impression would have
helped neither the appellant nor the respondent; if he did find a resemblance,
that might harm the respondent but would not help the appellant since in
a case such as the present the judge's perception is not in the nature
of corroborative evidence. The situation is unlike that of distinctive marks
which a person may perceive at once without reasonable fear of doubt
or error, such as that a child is an infant or grown up, male or female,
dark or fair, and the like, where no need arises in general for expert
opinion in order to discern them, and the impression of the judge is
sufficient. It is different with matters that may be understood in several
ways; these require evidentiary proof, and if an impression is required, it
must be of experts giving their opinion as witnesses in the trial. It is
very true that in the books many precedents are to be found of judges
reaching a decision in disputed instances of this kind according to their
perception, instances that include paternity based on the child resembling
the defendant (Wigmore, Evidence, 624 note 2). In Israel, too, the courts
have decided cases of mental illness based on "what the judge has observed"
(in the words of M. T. Edut 9:10). All these, however, are matters of the
past, before the era of the "experts". Today, blessed as we are with qualified
experts in every area and on every subject, no judge will presume to
decide scientific questions that lie in the realm of expert knowledge simply
on his own perception. (Maimonides expressed a similar idea~ "Today,"
he said, judges "not being as wise and understanding as they should, most
Jewish courts have agreed not…to decide in reliance on their own views and
without knowledge, saying 'I believe this in my heart and I put reliance on
that,' but on clear evidence, not as they think it should be, by appraisement"
(M. T. Sanhedrin 24:2).)
2. Presumption that is Baseless
See:
GILBERG
v.
PANOSS,
Part 9, Property-Physical and Intellectual, p. 103.
391
PART FIVE: EVIDENCE
3. Miggo – "Because"
C.A. 88/57
ROSENBERG v. KARMARJ et al.
(1958) 12 P.D. 1096. 1102, ll03
Cheshin D.P.: Admission by heirs is not the only way of proving an
unwitnessed deathbed will. Jewish law recognizes two further ways of
doing so: "miggo" ("because"-see below for explanation) and deeds made
in gentile courts. The following rule is to be found in Resp. Rosh (83:4):
As to what the Sages have said, that the directions of a person on his
deathbed are as if they were duly signed and sealed … as to whether they
are effective if they are not in writing and there are no witnesses, know
that without writing, they are as effective as a deed sealed and delivered
by a healthy person and even better than what has been written and
vested, although the latter point is disputed, some thinking that no
vesting can occur after death. However, witnesses are certainly required
if the assets are held by the heirs, but if they are held by one who
claims that he was given a gift, he is believed by virtue of miggo for he
could have said that he has nothing or has already returned the assets,
and could have taken an oath to that effect.
The meaning of the plea of miggo is well-known: because (miggo) he
might have pleaded that he held nothing belonging to the deceased or
that he had returned to the deceased what he had held, but in fact did
not so plead but said that the deceased had given him a gift, credence
is therefore given him, since had he wished to lie he could have chosen
another plea better suited for him in order to keep what he had. It follows
that miggo is a mode of proof. A will acquires validity not when the
argument is voiced during the proceedings concerning the directions of the
deceased but at the moment the directions are given by him. Miggo serves
only as a ground for believing the donee of the gift. In other words,
it is the directions of the deceased themselves that vest the gift in the
donee even if not made before witnesses and the miggo is only advanced
to persuade the court that the deceased did in fact make the disposition as
the donee claims. It is easy to assume that were the donee to deliver the
gift to the heirs before the court comes to deal with the matter, the basis
for the plea would disappear and the recipient would not be believed
because of miggo. But in these circumstances the will would be invalid
392
EVIDENCE IN CIVIL CASES
not because it was not made in the presence of constitutive witnesses but
because of the absence of one of the two possible modes of proof mentioned
above, the admission of the heirs or miggo. This is demonstrated by a
responsum of Rabbenu Gershom, Me'or haGolah, reproduced in Resp.
Maharam miRotenberg 861:
A and B were partners and went overseas together. A fell ill and was
on the verge of death. He called B and directed him to give to a third
person certain assets of his which B held … A died … and B returned
home. On his return he addressed himself to the bet din [religious
court] and told them what A had directed, and then carried out what A
had directed. Now A's widow is claiming from the donee what B had
given him, (maintaining) that A could not have given him anything
since all was charged to her under her ketubah [marriage document). In
whose favour is the law? I am inclined to think that the widow cannot
obtain anything from the donee, since the directions of a person on his
deathbed are as if they were duly signed and delivered … B is believed in
what he says, since before he disposed of the assets, he turned to the bet
din and told them what had happened, and our rabbis have taught [T.
Baba Metzia l] that admission by a party is as valid as the testimony of
a hundred witnesses (see also Resp. Maharam miRotenberg 870).
D. Litigants' Oaths
1. Orphans
C.A. 459/59
FINKELSTEIN et al. v. ESTATE OF MOSHE FREUSTEIER et ;J/,
(1960) 14 P.D. 2331, 2333
This appeal involved a claim made against the estate ofa deceased person for repayment
of a loan, allegedly admitted by the deceased during his lifetime.
Silberg J.: Both Ottoman and Jewish law adopt a similar-if not quite
identical- approach to claims made against a deceased person's estate.
393
PART FIVE: EVIDENCE
Art. 1746(1) of the Mejel/e provides thatWhen a person lays claim to and proves that he has an interest in
the estate of a deceased person, the Court requires the plaintiff to
swear an oath that he has not received anything in any way whatsoever
in satisfaction of his interest from such deceased person, either directly
or indirectly, nor that he has given a release thereof, nor transferred
it to any other person … nor received any pledge from the deceased by
way of security of his interest.
Jewish law has the following to say on the matter:
A widow has no right to recover [her ketubah] (marriage settlement)
from the property of the orphans except on oath (that she had not
received any part thereof – Rashi, ad loc.). (The rabbis), however,
abstained from requiring her to take an oath. Rabban Gamliel the Elder
then made a regulation that she should take any vow which the orphans
chose to impose on her and so recover her ketubah (M. Gittin 34b).
Thus they provided that where a widow claims her ketubah after
the husband's death she should not do so until she takes an oath that
nothing was left with her and that she had not commuted her ketubah to
the deceased nor foregone it (M. T /shut 16:4).
A widow will only collect her ketubah, principal or supplementary, on
her taking an oath …. When the court or orphans require her to swear,
that is done outside court since the courts refrain from administering
an oath in case she is careless, but an oath taken outside court is not
serious (ibid. 16:11).
As regards an admission discovered in the accounts of the deceased-as in
the case before us-we find in Shulhan Arukh two seemingly contradictory
statements:
Where Reuven died and there was found among his papers a note in
his handwriting that he owed Shimon a sum of money, the orphans are
exempt, since an oral loan even with witnesses is not recoverable from
orphans unless it is not yet due (Hoshen Mishpat 107:12).
One is to adjudge a matter according to the papers of a person in
which he was accustomed to note down his affairs, even if this requires
minor orphans to discharge a debt, where some grounds exist that what
the deceased wrote down was the truth (ibid. 91 :5).
Primafacie, here is an obvious contradiction, but in fact there is none. A
condition is appended to the second above rule-"where some grounds exist
394
EVIDENCE IN CIVIL CASES
that what the deceased wrote down was the truth." In modern terminology,
there must be some "corroboration" from elsewhere as to the veracity of
the admission found in the deceased's papers. That is what Serna to Hoshen
Mishpat 108:27 indeed observes.
We can thus see the suspicion and distrust with which Jewish law regards
claims made against heirs. But the following observation must be added.
Since Jewish law, as we know, adopts the view that evidence is to be
formally evaluated, as opposed to a free evaluation that characterises
modern statutes, and the judge must – except in the case of "deceit"
(see Hoshen Mishpat 15:3)-rule in reliance upon the testimony of two
competent witnesses, then if such witnesses are available to testify to
the loan/ debt of the deceased, the suspicion arising on the latter's death
is not whether he did not borrow anything but whether he had discharged
the debt before his death.
The common formula by which to define the position taken by the
three systems of law, English law, Ottoman law and Jewish law, is that
where a claim is against the estate or one of the heirs, one must have
no doubt as to whether the deceased might have had some defense that
militates-either by way of denial or by way of contrary evidence-against
the claim. Where such doubt is not removed, the claim fails since the
claimant bears the burden of proof, i.e. conclusive proof.
This notion requires that caution be applied not only to the evidence of
the plaintiff, since the doubt persists, but to a somewhat lesser degree also
when the claim is based on the evidence of a witness not involved in the
matter.
E. Burden of Proof
See: Part 7, Torts, p. 511.
395
Chapter Three
EVIDENCE IN CRIMINAL CASES
A. Conviction and Acquittal
1. Conviction on Circumstantial Evidence
Cr A. 543/79
NAGAR et al. v. STATE OF ISRAEL
(1981) 35(1) P.D. 113, 154, 163-170
A majority in the District Court convicted the appellants of the murder of one Yosef
Arbiv, although his body was not found. The Court relied on the evidence ofthe principal
witness, which was corroborated to some extent, and according to which the appellants
separately confessed to the murder though each attributed it to the other of them. The
judges held that they would have convicted the appellants even without such confessions
because of circumstantial evidence. The judge in the minority held that it had not been
proved beyond all reasonable doubt that the appellants had committed the murder
since no credibility was to be given to the principal witness. The central question in
the appeal was whether the conviction could stand in the absence of the body of the
victim and in reliance on the confessions made out of court and on circumstantial
evidence.
Elon J.: Opinions in various legal systems are divided as to whether a
person can be convicted by a confession made outside court when there
is no independent evidence, in addition to the confession, of the existence
of the corpus delicti, i.e., proof of the occurrence of the event – here
the death of a man – effected by criminal conduct and not by natural
causes. This Court has held that when there is such a confession, no such
proof is needed and some minor corroboration is sufficient ( C.A. 290 / 59
A. v. Attorney-General (1960) 14 P.D. 1489, 1496). Later I shall have
something to say about that. No one disputes that failing a confession from
396
EVIDENCE IN CIVIL CASES
that what the deceased wrote down was the truth." In modern terminology,
there must be some "corroboration" from elsewhere as to the veracity of
the admission found in the deceased's papers. That is what Serna to Hoshen
Mishpat 108:27 indeed observes.
We can thus see the suspicion and distrust with which Jewish law regards
claims made against heirs. But the following observation must be added.
Since Jewish law, as we know, adopts the view that evidence is to be
formally evaluated, as opposed to a free evaluation that characterises
modern statutes, and the judge must – except in the case of "deceit"
(see Hoshen Mishpat 15:3)-rule in reliance upon the testimony of two
competent witnesses, then if such witnesses are available to testify to
the loan/ debt of the deceased, the suspicion arising on the latter's death
is not whether he did not borrow anything but whether he had discharged
the debt before his death.
The common formula by which to define the position taken by the
three systems of law, English law, Ottoman law and Jewish law, is that
where a claim is against the estate or one of the heirs, one must have
no doubt as to whether the deceased might have had some defense that
militates-either by way of denial or by way of contrary evidence-against
the claim. Where such doubt is not removed, the claim fails since the
claimant bears the burden of proof, i.e. conclusive proof.
This notion requires that caution be applied not only to the evidence of
the plaintiff, since the doubt persists, but to a somewhat lesser degree also
when the claim is based on the evidence of a witness not involved in the
matter.
E. Burden of Proof
See: Part 7, Torts, p. 511.
395
Chapter Three
EVIDENCE IN CRIMIN AL CASES
A. Conviction and Acquittal
1. Conviction on Circumstantial Evidence
Cr. A. 543/79
NAG AR et al. v. STATE OF ISRAEL
(1981) 35(1) P.D. 113, 154, 163-170
A majority in the District Court convicted the appellants of the murder of one Yosef
Arbiv, although his body was not found. The Court relied on the evidence ofthe principal
witness, which was corroborated to some extent, and according to which the appellants
separately confessed to the murder though each attributed it to the other of them. The
judges held that they would have convicted the appellants even without such confessions
because of circumstantial evidence. The judge in the minority held that it had not been
proved beyond all reasonable doubt that the appellants had committed the murder
since no credibility was to be given to the principal witness. The central question in
the appeal was whether the conviction could stand in the absence of the body of the
victim and in reliance on the confessions made out of court and on circumstantial
evidence.
Elon J.: Opinions in various legal systems are divided as to whether a
person can be convicted by a confession made outside court when there
is no independent evidence, in addition to the confession, of the existence
of the corpus delicti, i.e., proof of the occurrence of the event – here
the death of a man – effected by criminal conduct and not by natural
causes. This Court has held that when there is such a confession, no such
proof is needed and some minor corroboration is sufficient ( C.A. 290/ 59
A. v. Attorney-General (1960) 14 P.D. 1489, 1496). Later I shall have
something to say about that. No one disputes that failing a confession from
396
EVIDENCE IN CRIMINAL CASES
the accused, the prosecution must first prove the existence of the corpus
delicti, and before everything else in a charge of murder, the death of
the victim. Of the three elements of murder mentioned above-death of
the victim, in consequence of criminal conduct, and identification of the
accused – the first two lead to the very existence of a criminal offence,
and in the absence of either of them there is no such offence at all. Of
these two elements, in the nature of things, proof of the first-the actual
death-calls for the strongest and most reliable evidence, since without it
the elementary factual basis of murder, the deprivation of human life, is
lacking. For this reason, stress was laid in the past, as Shamgar J . has
pointed out, on finding the body or upon direct evidence of the victim's
death, in case at some future date "the victim arrives on his own feet"
(Baba Kamma 74b; Keritut 24a) and the fatal error in convicting the
accused becomes apparent…
The path pursued by Jewish law in the present regard is most interesting
and instructive. In Ha/ihal v. State of Israel (1969) 23(1) P.D. 733, the late
Silberg J. quoted the statement of R. Tarphon and R. Akiva: "Had we
been members of the Sanhedrin, no one would ever have been executed"
(M. Makkot 1:10). The Talmud (Makkot 7a) explains:
How would they have proceeded? Both R. Yohanan and R. Elazar
suggested that the witnesses would be asked, 'Did you see whether the
victim was fatally sick or perfectly healthy?' R. Ashi said that if the
reply was that he was perfectly healthy, they would be asked, 'Perhaps
the weapon penetrated an internal lesion, (and the victim would have
died in any event)?'
Silberg J. cites this view which would acquit an accused in mere reliance
on the remote and rare possibility that his deed did not cause the victim's
death, as against the usual view taken in modern case law:
Since judicial proceedings are necessary to punish criminals, it is essential
to ignore remote circumstances, i.e. extraordinary events far removed
from reality, although this may lead to a miscarriage of justice. That is to
say, the legislature perceived the risk, but found it unavoidable, since
otherwise judicial requirements would never be satisfied, and necessity
should not be denigrated (Halihal, as above, at 741).
Nevertheless, the extreme view of R. Tarphon and R. Akiva was disputed,
even by their contemporaries. R. Shimon b. Gamliel, the President, reacted
caustically: "And they would also multiply the shedding of blood" (M.
Makkot 7a), since, according to Rashi, people would not go in fear of the
law (see also Tosafot to M. Makkot 7a). Yet it is true that with regard
to the means of proving the facts of a case, whether or not A stabbed B
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PART FIVE: EVIDENCE
with a sword, Jewish law was careful to insist on direct evidence. This
requirement is explained clearly by Maimonides (Sefer haMitzvot, Negative
Commandment 290) as follows:
The caution against carrying out punishment on very strong and even
almost certain conjecture – such as arises where one pursues another
to kill him and the latter seeks refuge in a house and is followed
by the former and then upon entering we find the pursued slain or
in the throes of death with the pursuer standing over him, sword
in hand, and both covered in blood-even in such a case the Sanhedrin
would not order the execution of the accused since there were no
witnesses who saw the killing…
Do not find this difficult and do not think that it is a miscarriage of
justice – of things that are possible, some are very possible and some
not, and others lie in between. The "possible" is extensive in range.
Had the Torah permitted punishment to be exacted on a very strong
possibility alone, which the actual circumstances render likely, as in the
example I have mentioned, we would impose punishment for what is
more remote and still more remote, until a person might wrongfully be
put to death on some slight conjecture of the judge. Accordingly the
Supreme Being closed this avenue and commanded that no punishment
should be inflicted unless two witnesses have testified clearly to the act
beyond all doubt and admitting of no other explanation. If punishment
is not imposed on the strongest conjecture, all that will happen is that
the guilty person will die a natural death. If, however, it is imposed
on the basis of conjecture and imagination, an innocent person may
sometimes be deprived of life. It is better and more desirable that a
thousand wrongdoers should go free than that one innocent person ever
be killed .
… On this last dictum, see Glanville Williams, Proof of Guilt (1963) 186 ff.
Towards the close of the Mishnaic period a principle was laid down that
had long before been applied (see the story related to Shimon b. Shetah in
Sifre to Deut., Ki Tetze 221). The principle made a substantive change in
Jewish criminal law with regard to both punishment and procedure.
Eliezer b. Ya'akov said, "l heard that even without Scriptural authority
the court administers flogging and other penalties, not in order to
transgress the words of the Torah but in order to make a fence around
it" ( Yevamot 90b; Sanhedrin 46a; see Y. Hagigah 2:2 for a slightly
different version).
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EVIDENCE IN CRIMINAL CASES
According to this principle, a court may render judgment, not in accordance
with the Torah, over the entire field of penal law and criminal procedure
if circumstances require it in a given situation, so as to. set up a barrier
to wrongdoing and to criminals. To this end the courts and public leaders
exercised their authority to enact, via broad legislation, regulations in every
generation and at all times for a variety of religious, social, economic and
moral reasons. These regulations were formally said to be instituted as
"emergency legislation" because "the times necessitated it" and the like.
They became in fact a substantive part of Jewish law generally, and are
cited and discussed in halakhic literature, particularly the responsa (see M.
Elon, Jewish Law, Part 2, 421-25, 566-69. Much material is to be found
in S. Assaf, Criminal Law After the Close of the Talmud; M. Ginzburg,
Low for Israel, and Y. Bazak, "The Taking of Life and its Law in the
Responsa" Proceedings of the Fifth World Congress on the Science of
Judaism (1969) 37). I permit myself to quote what I wrote in summary
elsewhere (op. cit. 424-25):
This far-reaching legislative principle in penal law and criminal procedure
served at all times as a very valuable and important tool in regulating
Jewish social life, and by virtue thereof there developed in Jewish law
-as far as the judicial autonomy granted to various Jewish centres made
it possible – an extensive range of legislation in matters of penal law
and procedures. This legislation provided wide authority in determining
penalties and regulating procedure appropriate for contemporary social
needs but without being unnecessarily oppressive. Maimonides, after
setting out this wide authority of the Sages of the halakhah in matters
of criminal law, sums up the duty which its exercise entails: "All these
things are according to what the judge thinks proper and required by
necessity; in everything he should act for the sake of Heaven and let him
not treat lightly the honour of human beings" (M. T. Sanhedrin 24: 10).
An instructive development occurred in the modes of proof under criminal
law, which is the subject under discussion here. Some of the leading
precedents which concern the present case may be examined.
(a) At the end of the thirteenth century, Rashba in Spain dealt with the
question of receiving evidence from relatives, from a wife and a minor, as
well as with self-incrimination (Resp. Rashba 4:3 I I); the inquiry was as
follows:
The public has agreed to appoint us to act as judges in criminal matters
and we have sworn to do so. The (relevant) takkanah [regulation]
states that we shall have authority from the state to chastise and
punish physically and by fine as we see fit. Inform us, if witnesses
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PART FIVE: EVIDENCE
who are relatives of A testify that he had transgressed his oath, are
they fit to be relied upon, or if a woman and minor relate something
in good faith, may we chastise A? So also, if the witnesses or one of
them is a relative and we find grounds for thinking that they are telling
the truth, may we act accordingly although the evidence is not clear?
Rashba's reply was clear and unequivocal:
These things seem to me very simple. You may do whatever you find
proper. What you have said (about witnesses who are relatives and so on)
applies only to a court that adjudicates according to the Torah-such as
the Sanhedrin or the like. One, however, that is appointed by communal
takkanah does not deal with matters according to the law actually written
in the Torah but according to what is required at the moment by leave
of the state. If that were not so … no person would be punished on
his evidence since under law no one can incriminate himself.. .. All these
matters arise only where the court acts according to the Torah ….Thus it
has been said that flogging and other punishments may be administered
not in accordance with the law, not to transgress the words of the Torah,
but to make a fence around it.. .. That is clear for us in every place where
a takkanah has been made in this respect.
(b) In the fourteenth century, a responsum of Ribash… dealt with a
conviction for murder. Ribash held that the conviction would stand on
circumstantial evidence if there is no doubt about the death of the victim,
provided "the evidence is strong and there are grounds supporting its truth"
(Resp. Ribash 251).
You already know that, where the state has permitted it, capital offences
at the present time are not dealt with in accordance with Jewish law, since
Jewish law relating to capital offences has long been abolished (see on
this Elon, op. cit., vol. l, pp. 7-8 note 10), but because the situation
requires it, the court would administer flogging and punishments not
in accordance with the Torah, in order to make a barrier around
the Torah …. If, regarding other offences, people were executed not in
accordance with the law because the times made that requisite, then
needless to say the same applied to the spilling of blood, where the
rabbis were very severe … .If you find it proper to sentence a person
to death because he acted abhorrently and defiantly and with malice,
such as by ambushing the victim at night or being armed during the
daytime and waiting to attack the victim in a public place in the
sight of leading citizens, you have authority to do so, as Maimonides
wrote [M. T. Rotze'ah 2:4-5] even where there are no witnesses but only
strong evidence and indications for what actually happened.
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EVIDENCE IN CRIMINAL CASES
(c) As the responsum of Rashba cited above indicates, at this new stage in its
development Jewish law adopted the view that a person may be convicted
by self-incrimination. This conflicted with the attitude originally taken by
Jewish law, the confession of the accused not being admissible to convict
him under the rule that a person is "a relative to himself and therefore
no man can render himself a wrongdoer" (Yevamot 25b) as we have seen
from the passage from Maimonides cited above. We may learn something
about the background of this innovation in the Jewish law of evidence
from a responsum written by Ribash to the communal leaders of Teruel in
Aragon, where there was a large Jewish community with judicial autonomy
in many areas of criminal law. The responsum concerned a Jew suspected
of being an informer who was put on trial before the local Jewish court
(Resp. Ribash 234):
Nowadays, a Jewish court is permitted to deal with capital cases only
under royal authorization and the judgment must be verified before the
local non-Jewish judges so that they do not suspect us of giving unjust
and illegal verdicts. Moreover, at the present time capital offences are
dealt with according to the exigencies of the hour, such jurisdiction
having been abolished among us, and flogging and other penalties are
imposed not tinder law but when the times require it, even without
complete evidence, as long as clear grounds exist for believing that an
offence has been committed. To this end, it is usual to accept confessions
made by the accused even in capital cases so that the issue is also clarified
out of his own mouth.
Where no other evidence exists to convict a person, a confession alone is
not enough. Some ground must, as Ribash says, be available to support the
confession, a rule which reminds us of the requirement of corroboration
that has been introduced into Israeli case law in Cr.A. 3/49 Andlarski v.
Attorney-General (1949) 2 P.D. 589 (see Cr.A. 290/59 A v. AttorneyGenera/, below).
(d) Jewish scholars attached importance to the fact that the secular
authorities had conferred criminal jurisdiction upon Jewish courts, and
regarded that as a vital factor for maintaining good public order in the
Jewish community, for which purpose they initiated far-reaching regulations
in the law of criminal procedure and evidence. Thus we hear from R.
Yehudah b. Asher in fourteenth century Spain that.. .it is well-known that from the time that the Sanhedrin was removed
from the Chamber of Hewn Stone, the law relating to capital offences
has been set aside among us Jews and all that remains for us is to
circumscribe blatant violations. Blessed be God for putting into the
401
PART FIVE: EVIDENCE
minds of the rulers of this country the thought of empowering Jews to
deal with and eradicate evil-doers. Otherwise Jews would not be able
to maintain themselves in this country …. The laws which we apply in
capital offences are not at all in accordance with the Torah (Resp.
Zikhron Yehudah 58).
What are these laws by which capital offences are judged? An answer is
given by another responsum sent to the Jewish Court in Cordova regarding
a person charged with attacking and grievously wounding a member of that
Court (ibid. 79):
It is well-known that it is not possible to set out in detail in the texts all
the innumerable new situations that occur today. For this reason our
Sages provided us with one rule that covers many matters, and enabled
the court to set a boundary at any time as necessity might require …. Even
if there are no witnesses that he attacked the judge, persistent report
has it that he did so. Further, there are grounds and indirect testimony
to that effect, as well as evidence that he was lying in wait at the place
where the judge was attacked and his face was masked,so that he should
not be recognised. Moreover, after striking the judge he ran away and
was not seen again in the town … .It seems to me that he may properly
be punished as if there were witnesses of his attacking the judge, since
the punishment is intended to contain such lawlessness and every judge
must be able to adjudicate truthfully without fear of the parties …. Every
law may be applied and punishment inflicted by a court as it deems fit
in times of emergency, provided that the intention is solely to pursue
justice and the truth.
(e) Not in all periods of the Diaspora was such a wide autonomy in
criminal law enjoyed by Jews. The situation varied even in the same place
from age to age (Elon, op. cit., Part I, 11 notes 23-25, and 36 note 112).
In Spain, as we have seen, Jews did enjoy this autonomy-even to the
extent of imposing the death penalty-for considerable periods of time.
A like autonomy was at one time to be found in Poland as well, where
we witness changes in the law of evidence in Jewish criminal law. Thus,
for example, we read in a responsum by R. Meir of Lublin in the sixteenth
century (Resp. Maharam miLublin, 138):
I have received a judgment which you gave about a strange and fearful
act, the slaying of a person by a tyrannical Jew, as mentioned in
the evidence which you … sent me. Since the evidence of one witness
is hearsay, it would appear that the evil act was widely known …. The
basis on which the authorities decide that today also the court has the
power to impose punishment, whether corporal or capital, rests on what
402
EVIDENCE IN CRIMINAL CASES
is said in the Talmud [Sanhedrin 46a and Yevamot 90b]. … Rabbenu
Yeruham has written that all this applies even outside the land of Israel
and without formal warning and the like, and even in the absence of
clear testimony. What a judge deems requisite he may do [see Resp.
Eitan haEzrahi 43-44 by R. Avraham Rapaport, responsum No. 45 loc.
cit. by R. Meir bar A vraham Zak].
(f) These rules were expressed concisely in the later literature. Tur. Hoshen
Mishpat 2 devotes one section and part of another (425) to criminal
jurisdiction in his day, observing inter alia:
Where the court sees that the exigencies require it because people are
lawless, it may impose the death penalty and fines and other forms
of punishment …. Even, it seems, when no complete evidence exists, as
required when penal matters are dealt with, but there are grounds, even
if slight, to support judgment… provided that all is done for the sake
of Heaven and human honor is not treated lightly.
R. Yosef Karo in Shulhan Arukh, Hoshen Mishpat 2: 1 is even briefer
regarding modes of proof (see also 425:1):
Every court that sees people acting lawlessly (Rema adds: " … and the
exigencies of the hour call for it') may issue the death sentence or impose
fines and other penalties even if complete evidence is not available.
The brevity with which Tur and Shulhan Arukh deal with criminal law,
substantive and procedural, is very patent, in contrast to the detailed
manner in which these two authorities deal with civil law. One may
reasonably assume that the narrow autonomy in criminal jurisdiction at
the time contributed in part to that, as against the much wider civil and
administrative autonomy enjoyed in different parts of the Diaspora. A
further factor may lie in the fact that lawlessness was not very widespread
in the Jewish communities, although, as we have seen, there were times
when this was not so.
To sum up: over long periods of time and in changing circumstances,
Jewish law could not meet the requirement that "no punishment may be
imposed unless witnesses are available to testify clearly to the act beyond
all doubt and admitting of no other explanation" (Maimonides, Sefer
haMitzvot, cited above). In times of emergency it might be necessary
to pronounce sentence based on circumstantial evidence, "conjecture and
probability". In order to dispel the fear that a person might be condemned
by reason of some easy conjecture of the court, it was repeatedly reiterated
that the evidence, even if not direct and clear, must be such that it appears
to the court to reflect the truth (Resp. Rashba attributed to Nahmanides
403
PART FIVE: EVIDENCE
279) and judgment was to be given only when the situation was confirmed,
when "the intention is solely to pursue justice and the truth." Thus Jewish
law admitted the evidence of relatives and the legally incompetent as well
as confessions, if there was some supporting ground, and circumstantial
evidence in murder cases when no doubt existed about the death of the
victim.
Cr.C. 683/79
STATE OF ISRAEL v. PRESSMAN etal.
{1982) 2 P.M. 98, 117
In the course of dealing with the charges against the accused, the Court was asked to
consider three specific issues: (a) the interpretation of the laws concerning the regulation
of foreign currency with respect to the element of "aggravating circumstances" in the
offences of possessing gold and dealing in it without a permit; (b) the significance of
the refusal of the accused to provide the Inspector with information and documents to
which he is legally entitled on the basis of their right to avoid incriminating themselves;
(c) the significance of the term "breach offaith" in sec. 248 of the Penal Law 1977.
I/an J.: In fact, the Supreme court has already addressed itself to the question
of whether protection against self-incrimination is a basic right in the State
of Israel as well. In Cr.A. 242/63 Kiryati v. Attorney General (1964) 18(3)
P.D. 477 at p. 497, Halevi J. made the following statement, after having
observed that the right to avoid self-incrimination is one of the sacred
rights of the Common law:
With the adoption of the "essence of the Common law" in our country
by way of art. 46 of the Palestine Order in Council, and sec. 11 of
the Law and Administration Ordinance, 1948, this principle of Jewish
law has been restored to the rock from which it was hewn.
In order to understand this extract, it is necessary to recall that it begins
with a citation from the 1820 case of Ex Parte Cossens in which Lord
Eldon declared that the right to avoid self-incrimination "is one of the most
sacred legal rights in this country." The Honorable Judge then proceeded
to observe that the origin of the Common law principle lies in the Jewish
legal maxim: "A man may not declare himself guilty", which is exactly
paralleled in the Latin: "nemo tenatur se ipsum accusare." Finally, he
concludes that the principle has returned to its roots, although he also
takes care to distinguish between the Hebrew source according to which a
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EVIDENCE IN CRIMINAL CASES
man may not incriminate himself, and its Common law form in which a
man is not obliged to do so.
Cr. A. 90/81
GOLDSTEIN v. STATE OF ISRAEL
(1982) 36(1) P.D. 610,612
Shilo J.: Early Jewish law refused to convict without direct evidence and
refrained from deciding a case on "conjecture", i.e., on circumstantial
evidence. In distinguishing between direct evidence and "conjecture"
[probability], the Talmud (Sanhedrin 37b) gives a clear example of
circumstantial evidence which, although it would to all appearances lead
necessarily to a conviction, is without foundation because of the doubt
that attaches to it:
What is meant by "based on conjecture''? The judge says to the witnesses:
Perhaps you saw him running after his neighbour into the ruins and you
pursued him and found him sword in hand with blood dripping from
it, whilst the murdered man was writhing. If that is what you saw,
you saw nothing.
2. No Conviction on Probability
See: HAREL v. GlLADI er al., Part 4, Regulation of the Courts, p. 333.
Cr.A. 360/80
STATE OF ISRAEL v. AFANGAR
(1981) 35(1) P.D. 228, 234
The respondent was found guilty by the District Court of the offence of acting as
an agent for the purpose of dealing in drugs under sec. 14 of the Dangerous Drugs
Ordinance [Consolidated Version] 1973. The State appealed on the grounds that
the respondent ought to have been convicted of trafficking in drugs, and that the
sentence was too lenient. The respondent appealed against the severity of his sentence.
405
PART FIVE: EVIDENCE
Elon J.: The principle in our legal system-as formulated by the Sages
concerning the temptation of Eve by the primordial serpent-is, "When the
words of the teacher and those of the pupil [ are contradictory], whose words
should be heeded: surely the teacher's!" (Sanhedrin 29a). The very same
expression is used in order to establish criminal responsibility of an agent
who commits an offence at the behest of his principal (Kiddushin 42b).
When the words of the law and those of a seducer are contradictory, those
of the law should be heeded, and the person led astray cannot free himself
of criminal responsibility with the primordial claim, "Someone seduced me
and as a result, I sinned."
Cr.A. 88/86
ZUCKERMAN v. STATE OF ISRAEL
(1986) 40(4) f.D. 209, 211
The appeal was against the severity of the sentence imposed upon the appellant for
the offences of accepting bribes, supplying forged documents, theft by a government
employee, forgery of documents, receiving property obtained illegally and breach of
trust. The appellant's deeds were exposed on television and were the subject of a
programme. The grounds for the appeal were principally the shame, disgrace and
suffering endured by the appellant and his family as a result of the programme.
Elon J.: Now, whatever the case may be regarding the merits or demerits
of investigation by television, it is evident that the programme caused an
almost unbearable amount of suffering to the appellant, his wife, children
and whole family as a result of the shame and disgrace to which he
was subjected as a result of the broadcast. In the appellant's own words
– "from the day of the broadcast…!, my wife and my two small children
have been constantly hounded and have been mentally ravaged as a result.
Wherever we go there is an accusing finger pointed at us." Such suffering
is an extremely severe punishment-"a punishment which is not written in
any law" (as stated by Witkon J. in the context of the undue protraction of
judicial proceedings in Cr.A. 125/ 74 Mirom International Trading Co. et
al. v. State of Israel (1976) 30(1) P.D. 57, 152) for the offender, his wife,
and most seriously, for their children. There is surely no greater torment
than that undergone by children whose companions taunt them in the wake
of the exposure of their father's crime. The Sages took pains to administer
the following warning to a judge passing sentence on an accused person:
"Do not let the dignity of your fellow man be a small thing in your
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EVIDENCE IN CRIMINAL CASES
eyes… " (M. T. Sanhedrin 24: 10); and the cardinal principle in the Torah,
" … And you shall love your neighbour as yourself…" (Lev. 19:18), was
also applied by the Sages to convicted criminals. Care must be taken
not to disgrace a criminal sentenced to death, and his execution must
be carried out in a dignified fashion (Sanhedrin 45a). The fundamental
rule in Jewish penal theory is that "once punishment has been administered,
the offender becomes one of your brethren" (M. Makkot 3:15, and see at
length C.A. 4/82 State of Israel v. Tamir (1983) 37(3) P.D. 201). All
this must be taken into account when considering the degree of punishment
imposed upon the criminal.
3. Acquittal in Cases of Doubt
Cr. A. 112/69
HALIHAL v. STATE OF ISRAEL
(1969) 23(1 ) P.D. 733, 741
The appellant was convicted ofmurder on the evidence of a ballistics expert. On appeal,
the qualifications of this expert and the results of his tests were challenged.
Silberg D.P.: My learned friend criticizes the learned judges for applying
to the present case an observation of Glanville Williams quoted above. My
friend says that this observation is not relevant.
He [Williams] proceeds on the assumption that the defendant's guilt
has already been abundantly proved-for example, that the defendant
fired the shots which brought the death of the victim. After such proof
there is no need to go much further and surmise whether the victim died
from heart failure a moment before the bullet penetrated his heart.
For all the high regard I have for my learned friend, it seems to me that
Williams did not have in mind a case where it had already been proved
that it was the defendant who fired the shots that led to the victim's death.
The English scholar is there expressing the view that it is not for the court
to think of some remote and exceptional event which, if indeed it occurred,
is reconcilable with the innocence of the defendant, when the evidence given
in the case, which the court believed, leads to the much more reasonable
407
PART FIVE: EVIDENCE
conclusion that the defendant is not innocent. Here Williams in fact differs
from the attitude taken by R. Tarphon and R. Akiva who said that had
they been members of the Sanhedrin no person would be executed (M.
Makkot ?a). The Gemara says about this:
What would they have done? R. Yohanan and R. Elazar both suggested
that the witnesses might be asked "Did you notice whether the victim
was fatally sick or in perfect health?" R. Ashi went on to say that should
the reply be that he was in perfect health, the witnesses might be asked
whether the weapon merely severed an already existing internal lesion
(from which he might in any event have died)?
The reason why Williams "differs" from the Tanna'im (sages predating
redaction of the Mishnah) is that notwithstanding that such rare events
may at times occur, and to ignore them could on rare occasion involve
a miscarriage of justice, this possibility does not counterbalance judicial
requirements, and the risk must be taken. That is to say, contrary to the
views of the Tanna'im who think that a defendant is to go free whenever
the least doubt of his guilt exists, Williams is of the opinion – and this
is the view reflected in all modern case law – that because of judicial
requirements to punish wrongdoers, it is essential to disregard "remote
circumstances", events that are exceptional and far from reality as such,
although that might well involve a miscarriage of justice. The legislature,
that is to say, had the risk in mind but found it necessary to ignore it since
otherwise judicial needs would never be satisfied.
See: KOBI v. STATE OF ISRAEL. Part 6. Penal Law, p. 433.
4. Conviction on Confession
Cr. A. 290/ 59
Av. ATTORNEY-GENERAL
(1960) 14 P.D. 1489, 1494-1495
This was an appeal against conviction and sentence for an offence under the Official
Secrets Ordinance and the Prevention of Infiltration (Offences and Jurisdiction) Law,
1954.
408
EVIDENCE IN CRIMINAL CASES
Landau J.: In order to understand the problem that faces us, we might do
well to discover the reasoning of those who follow a "strict" line and are
not prepared to convict a person simply on his confession made outside
court. The solution according to Willis in his classic work Circumstantial
Evidence (6th ed. 109) is as follows:
Judicial history presents abundant warning of the danger of placing
implicit dependence upon confession even where exempt from all
suspicion of coercion, physical or moral, or other sinister influence. How
greatly must such danger be aggravated where confession constitutes
the only evidence of the fact that a crime had been committed; and
how incalculably greater in such cases is the necessity for the most
rigorous scrutiny of all collateral circumstances, which may induce a
false confession! The agonies of torture, the dread of their infliction,
the hope of escaping the rigours of slavery or the hardships of military
service, a weariness of existence, self-delusion, the desire to shield a
guilty relative or friend from the penalties of justice (Chitty's Criminal
Law, vol. i., p. 85), the impulses of despair from the pressure of strong
and apparently incontrovertible presumptions of guilt, the chance of
escaping unmerited punishment and disgrace, the hope of pardon, even
the love of notoriety-these and numerous other inducements have not
infrequently operated to produce unfounded confessions of guilt.
Fear of false confessions stems, therefore, from the possibility of external
physical and moral pressure exercised by others, as well as internal factors
that operate in the mind of the person making the confession without any
undue external pressure. As to the internal factors, Silberg J. has drawn
my attention to Maimonides' description of "mental fatigue":
The Sanhedrin does not sentence to death or impose flagellation on one
who admits an offence, in case his mind is deranged over the matter, in
case his intense anxieties in waiting for death when the sword strikes,
releasing him from disgrace, may bring him to admit something he did
not do (M. T Sanhedrin 18:6).
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PART FIVE: EVIDENCE
Cr. A. 242/63
KrRYATr v. ATTORNEY-GENERAL
( 1964) 18(3) P. 0. 477, 497
This appeal involved conviction for offences under the Income Tax Ordinance.
Halevi J.: The principle of immunity against self-incrimination-"one of the
most sacred principles in the law of this country" according to Lord Eldon
in Re Worral. Ex parte Cassens (1820) Buck. 531, 540 L.C.-a principle
of the Common law which has been raised to the rank of a constitutional
rule of the Fifth Amendment … has its source, it appears to me, in Jewish law
in the form set by the Sages-"No man can render himself a wrongdoer"
(Sanhedrin 9b). This source of the rule is attested to by the Latin maxim
nemo tenetur se ipsum (prodere) accusare, which is a literal translation of
the Hebrew. It is also attested to by the writings of the Church Fathers
(see the quotations in Riesenfeld, "Law Making and Legislative Precedent
in American Legal History", 33 Minn. LR. (1949) 103, 118, reproduced in
McCormick, Law of Evidence (1954) 253 notes 9-10; see also as regards the
history of the principle in England, Wigmore, Evidence (McNaughton rev.)
(1961) para. 2250). With the reception of the substance of the Common
law in this country, through art. 46 of the Palestine Order in Council, and
sec. 11 of the Law and Administration Ordinance of 1948, the principle
returned to its original home.
One must indeed distinguish carefully between the wide scope of the
principle in Jewish law, under which no one can incriminate himself by
confession, and its more limited meaning in the Common law, under
which no person is obliged to incriminate himself. "Everyone is treated
as a relative to himself and no man can render himself a wrongdoer"
(Sanhedrin 9b). As Rashi explains, his own evidence cannot incriminate
him since such evidence is disqualified.
See:
BAHAMOTZKY
v.
STATE OF ISRAEL,
Part 6, Penal Law, p. 486.
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EVIDENCE IN CRIMINAL CASES
Cr. A, 774/78
LEVI v. STATE OF ISRAEL
(1979) 33(3) P.D. 228,240,241
The appellant was convicted of murder by a majority decision. The minority view was
that he should be convicted of manslaughter.
Cohn J.: There was no medical evidence before the court to negate the
free will of the mentally sick person. The circumstances that were in
evidence… gave rise to no fear of "external pressure" which might have
negated his desire to make the confession he did. In that event, the question
of the authenticity of the confession would arise, which, as my learned friend
pointed out, is a question about the evidentiary weight of the confession.
Just as, regarding the testimony of a mentally sick person, the court
has judicial notice that mental sickness may sometimes lead to delusions,
hallucinations and imaginings completely divorced from reality, so also
as regards the confession of a mentally sick person the court has judicial
notice that some mental sickness may lead to delusions of confession,
self-torment over a wrong, which issue from hidden and impelling feelings
of guilt that have nothing to do with the offence involved (see, e.g. Noyes,
Modern Clinical Psychiatry (4th ed.) 106).
This kind of pathological phenomenon was already known to our Master,
Maimonides, who wrote:
It is a Scriptural command that a court shall not sentence a person to
death or order flagellation on his own admission.. .in case his mind is
deranged over the matter, in case his intense anxieties in waiting for
death when the sword strikes … may bring him to admit something that
he did not do (M. T. Sanhedrin 18:6).
If according to the Torah, the confession of a person is disqualified as
evidence against himself for fear that he is mentally sick, no wonder that a
mentally sick person is incompetent to act as a witness under the Torah
(M. T. Edut 9:9). There the manner of seeking out the truth differs from our
law of evidence mainly in that before disqualifying any evidence because
it is false, any witness who is presumed to be lying is first disqualified,
either because he is a wrongdoer who is likely to lie deliberately or because
he is mentally sick and might lie out of delusions.
See:
NAGAR et:1/. v. STATE OF ISRAEL, p.
396.
411
PART FIVE: EVIDENCE
Cr.C 683/79
STATE OF ISRAEL v. PRESSMAN
etal
1982(2) P.M. 98, 117
In the course of dealing with the charges against the accused, the Court was asked to
consider three specific issues: (a) the interpretation of the laws concerning the regulation
offoreign currency with respect to the element of "aggravating circumstances" in the
offences of possessing gold and dealing in it without a permit; (b) the significance of
the refusal of the accused to provide the Inspector with information and documents to
which he is legally entitled on the basis of their right to avoid incriminating themselves;
(c) the significance of the term "breach offaith" in sec. 248 of the Penal Law 1977.
flan J.: In fact, the Supreme court has already addressed itself to the question
of whether protection against self-incrimination is a basic right in the State
of Israel as well. In Cr.A. 242/63 Kiryati v. Attorney General (1964) 18(3)
P.D. 477 at p. 497, Halevi J. made the following statement, after having
observed that the right to avoid self-incrimination is one of the sacred
rights of the Common law:
With the adoption of the "essence of the Common law" in our country
by way of art. 46 of the Palestine Order in Council, and sec. 11 of
the Law and Administration Ordinance, 1948, this principle of Jewish
law has been restored to the rock from which it was hewn.
In order to understand this extract, it is necessary to recall that it begins
with a citation from the 1820 case of Ex Parte Cassens in which Lord
Eldon declared that the right to avoid self-incrimination "is one of the most
sacred legal rights in this country." The Honorable Judge then proceeded
to observe that the origin of the Common law principle lies in the Jewish
legal maxim: "A man may not declare himself guilty", which is exactly
paralleled in the Latin: "nemo tenatur se ipsum accusare." Finally, he
concludes that the principle has returned to its roots, although he also
takes care to distinguish between the Hebrew source according to which a
man may not incriminate himself, and its Common law form in which a
man is not obliged to do so.
412
EVIDENCE IN CRIMINAL CASES
Cr. A. 556/80
ALI etal, v. STATE OF ISRAEL
(1983) 37(l) P. D. 169, 184, IS6-l88
This was an appeal by some of the appellants against conviction for murder and by
another appellant against sentence for auempted robbery. This was also a counterappeal by the State against the acquittal of the latter for murder.
Elon J.: This Court has adopted in its decisions the leading principle that no
person is to be convicted solely on confessions made by him outside court,
even when properly made without external pressure. Foremost of our fears
is that because of the "internal pressure" besetting the defendant, he believes
that he has committed an offence which in fact another had committed.
This fear has been well expressed by Maimonides (M. T. Sanhedrin 18:6):
"Perhaps because out of the pangs of desperation they contemplate killing
themselves and admit to something they do not do … "
In view of the foregoing it is in my opinion right that the policy of
relying on confessions should be different from that adopted lately by the
legislature, which has been lenient with respect to statements made outside
of court in certain circumstances (see sec. 10 of the Evidence Ordinance
(New Version)). There may be some good reason for that, having regard
to the growing phenomenon of witnesses being terrorized to go back on
statements they have made to the police. But such reason cannot prevail
against the necessary requirement of some supporting evidence in the case of
a confession by an accused person. On the contrary… the growth of crime
and of criminals who forcefully dominate their weaker associates calls for
particular caution when relying solely on the confession of an accused
person, even when made in court. In this context, we have adopted the
great rule that "it is better and more desirable that a thousand sinners go
free than to punish one innocent person" (Maimonides, Sefer haMitzvot,
Negative Commandment 290). Moreover, to punish the innocent on their
own admission may lead to the acquittal of the guilty who evade their
deserts and continue to endanger the public good and our security. It seems
that the growth of violence among dangerous organised gangs who cast fear
not only on people in general but also on their "petty" collaborators who
take upon themselves the offences committed by the "bosses", requires
us to proceed with the utmost caution before convicting anyone on his
own confession alone. I would therefore advise the legislature to consider
supplementing the existing law by providing that even when a confession
is made in court, conviction should not rest on that alone unless there is
something to strengthen and corroborate the confession.
413
PART FIVE: EVIDENCE
It is instructive to note the position taken by Jewish law on this weighty
matter. Jewish law, as we know, originally urged that the confession of the
accused not be accepted, on the ground that "a man is a relative to himself
and cannot (be a witness to) render himself a wrongdoer" (Yevamot 25b).
Self-incrimination was in no way admissible, whether the confession was
made outside or in court, and even when some support existed for it.
Conviction could only occur on the evidence of witnesses. In the course
of time, as social circumstances necessitated it, far-reaching changes were
introduced to render proof in criminal matters easier. The evidence of
witnesses who were strictly speaking disqualified was made valid, and
circumstantial evidence was allowed if it was strong and significant (see
Cr.A. 543/79 Nagar v. State of Israel, above, 163-170). Conviction could
also stand on self-incrimination (Res. Rashba 4:311) although confession
alone was not enough unless there was some ground that authenticated the
confession in the absence of the clear evidence (Resp. Ribash 234) …. This
course would appear to be desirable both in respect of a defendant who is
not convicted if he is innocent of wrong and as regards the apprehension
of the truly guilty so that they do not evade due conviction.
B. Extent of Proof
1. Intimidation and Guilt
Cr.A. 19/ 50
DANOCH,AFANGER,ZUCKERMANv.ATTORNEYGENERAL
(1951) 5 P.O. 81, 84, 88-89, 91
Assaf J.: The present case is an appeal against the decision of the Tel Aviv
District Court, given on 7.2.50, according to which the appellant Yehoshua
ben Yichyeh Danoch was found guilty of premeditated murder and was
sentenced to death under sec. 214(b) of the Criminal Code Ordinance,
1936.
414
EVIDENCE IN CRIMINAL CASES
The facts are as follows: The accused, Danoch, and the murdered man,
Massaoud Suissa, dealt in black market meat. The deceased was suspected
of having links with the police, and was paid by the butchers to keep silent.
Relations between the accused and the deceased were extremely strained.
A few days prior to the murder, the bad feeling between the two grew more
intense as the result of a police raid in the Yemenite Vineyard district and
their confiscation of contraband meat. The accused suspected the deceased
of having tipped the police off, and subsequent to the police confiscating
more meat, the accused charged the deceased with informing and said to
him: "You have fixed me but I will also fix you." According to another
version, he said to him: "I will fix you by the evening." In his testimony
in Court, the accused admitted to the first version and denied the second.
That evening, the eve of the [Passover] festival…the deceased was shot
as he was leaving his home. He was hit by five or six bullets and died
of his wounds about half an hour later.
The decision in Cr.A. 203/45 Aki/eh v. Attorney- Genera/(46 A.L.R. 16)
is also relevant here. In that case, two people were accused of armed
robbery, and only one was found guilty. The decision was appealed, and
the judge held that two people had indeed taken part in the robbery, and
the sole question was one of identification. One witness had identified both
accused, but the judge accepted his testimony regarding only one of them …
In that case, the witness saw only one of the accused, whose mask had
slipped off his face during the robbery. The other one had his mask on all
the time and the witness only saw part of his face. Such partial testimony
is invalid, and in the case of witnesses testifying with regard to the death
of a man whose wife wishes to remarry, the Sages held that "no testimony
may be accepted unless it includes the whole face together with the nose.
Identification [of the corpse] based upon bodily marks and clothing is
insufficient." The halakhah was decided accordingly (M. T. Gerushin 13:1;
Even haEzer 17:24), even though there is a general tendency to rule leniently
in order to prevent a woman from remaining an agunah (abandoned wife).
The present circumstances are different. Here, Nissim testified that he saw
the three accused, Yehoshua, Shimshon and Najar walking in the direction
of the home of the deceased, carrying guns in their hands. A few minutes
passed, shots were heard, and then he maintains that he saw the three
accused running away in the opposite direction. The three accused were
therefore seen together on two separate occasions. There is no uncertainty
in the testimony regarding Gedalia Najar. That testimony is as certain as
the evidence concerning Yehoshua and his son, Shimshon…
Having reached the conclusion that Yehoshua ought not to be found
guilty on the basis of the testimony of Nissim Suissa, there is no need
to examine Simha Suissa's testimony in relation to which the Court
415
PART FIVE: EVIDENCE
had expressed doubts concerning its veracity. As a result, both Nissim's
testimony and its supporting evidence become legally irrelevant. The quarrel
between Yehoshua and Massaoud, and Yehoshua's threat that he would
"fix" Massaoud are central to the decision of the District Court, and
the testimony regarding the quarrel between Yehoshua and Massaoud is
also cited in the conclusion as grounds for the guilty verdict. However,
the threat alone is not sufficient for a guilty verdict. The Talmud recounts
that a certain man grabbed an axe and said: I will go and cut down
so-and-so's date tree, and some time later, the tree was found cut down
and lying on the ground. The halakhah in such a case is that a person
may very well make a threat and not carry it out (Shevuot 46a). It is also
possible that the quarrel and the threat, coupled with Nissim's awareness
that notwithstanding his efforts, relations between the two men, Yehoshua
and Massaoud, remained strained, caused him to testify that the appellant,
his son and son-in-law had gone to murder his son, Massaoud. Nissim's
evidence, therefore, is the lynchpin of the entire case, and if it is dismissed,
then the entire case fails. In the light of all this, there is no need to express
any opinion in relation to the appellant's alibi, a matter which caused
much concern in the lower court. An alibi is only required when there
is sufficient evidence to convict the accused: in the present case, Nissim
Suissa's evidence is insufficient for this purpose.
2. Intimidation and Proof of Contemplating Offence
See:
SUISSA
V.
ATTORNEY-GENERAL.
Part 6, Penal Law, p. 440.
3. Extent of Proof in Cases of Unlawful Relations
See; BALILI v. STATE OF ISRAEL. Part 6, Penal Law, p. 455.
416
EVIDENCE IN CRIMINAL CASES
C. Identification
1. Voice
Cr. A. 87/53
EL-NABARI v. ATTORNEY-GENERAL
(195)) 7 P./J, 964, 965, 972
This was an appeal against a conviction for murder. The judgment was a majority
judgment; the minority judge thought that the appellant should enjoy the benefit of
the doubt and be acquitted.
Silberg J.: There is no doubt that the identity of a person can be established
with the utmost certainty by the sound of his voice alone. It is widely known
that one person can recognise and "identify" another by hearing his voice
without seeing him at all and the first person has no fear that the voice
which is known to him might "belong" to a third person. If, however, he
wishes to explain expressly how he recognised and identified the other and
what he said, we know from experience that he cannot do so at all or
can do so only partially. The reason for this is that the qualities of a
person's voice are, in the vast majority of instances, so individual, so
unique, that the dictionary does not attribute to them any names or
descriptions. This is the immediate, complete and absolute recognition
which our sources call "the impression of the voice" (Gittin 23a).
417
PART FIVE: EVIDENCE
Cr.A. 234/81
HARBON v. STATE OF ISRAEL
(1982) 36{1) P.D. 90, 98
This appeal involved the identification of the appellant by the sound of his voice.
Shilo J.: At times an impression is composed of features that come to us
through more than one of our senses, which makes identification generally
easier, but even in such a case the instinctive reaction is decisive. If
we may perhaps mention the first case known to us in our history, in
the meeting between Isaac and Jacob when the latter came to ask for
the blessing of his father. Jacob was clothed in the garment of Esau
to mislead his father and one can distinguish the double identification
in Isaac's remarks- "The voice is the voice of Jacob but the hands are
the hands of Esau." The identification by the voice was instructive and
it was the correct identification but the imposture of covering Jacob's
arms with the hairy garments of Esau misled blind Isaac. He felt the hairy
garment on Jacob's arms and honestly believed that it was Esau, his eldest,
who stood before him. Isaac's error was in putting aside the first instinctive
identification. Isaac was also deceived by his sense of smell, because it
is likely that the impression he received from the voice as opposed to
that he obtained from his sense of touch left some doubt in his mind and
he used a third sense, that of smell-"And the smell of my son is as the
smell of the field" (Gen. 27:27).
2. Physical Features
See: DANOCH et al. v. ATTORNEY-GENERAL, p. 414.
3. Blood Tests
See: SHARON et al. v. LEVI. Part 7, Torts, p. 516.
418
EVIDENCE IN CRIMINAL CASES
4. Facial Resemblance
C.A. 407/60
A. v. B.
(1961) 15 P.D. 212, 216-219
In an action involving paternity, the respondent refused to take a blood test and the
action was dismissed for want of evidence_
Silberg J.: The learned judge at the beginning of his judgment describes
briefly, but with feeling and incisively, the tragic condition of the child. He
cited Eccles. 4: 1-"But I returned and considered all the oppressions that
are done under the sun; and behold the tears of such as were oppressed and
they had no comforter." I imagine that the learned judge had in mind not
only that verse but also the comment in Lev. Rabba, 32:8, which applies
the verse to parents and their pitiful children.
Certainly, the pain of the unfortunate child penetrates the heart. He was
certainly oppressed, but preventing oppression should not entail further
oppression, i.e., the attribution of lawful parenthood to one who is not his
father. For that reason, the learned judge dismissed the mother's claim.
I came to that conclusion because I thought that the learned judge gave
no credence at all to the appellant's evidence. Had I thought that the
judge believed what she said or did not reject her words in entirety but
dismissed her action for want of corroboration – necessary by virtue of
sec. 6 of the Evidence Ordinance in respect of the sole evidence of a
plaintiff when that is denied by the evidence of the defendant… had I
thought so, I would remit the case to the lower court for the learned
judge to examine carefully and decide upon the close physiognomical
resemblance that exists, according to the appellant, between the child
and the respondent. For if indeed the facial features of the child are so
strikingly similar- as counsel submitted – to the respondent's features, I
would have regarded that as corroboration of the mother's evidence. The
Talmud (Baba Metzia 87a) relates:
On the day that Abraham weaned his son Isaac, he made a great banquet,
and all the peoples of the world derided him, saying, "Have you seen that
old man and woman who brought a foundling from the street and now
claim him as their son. And what is more, they make a great banquet
to establish their claim". What did our father Abraham do? He went
419
PART FIVE: EVIDENCE
and invited all the men of the time, and our mother Sarah invited their
wives and each brought her child with her but not the wetnurse. And
a miracle happened to our mother Sarah… she suckled them all. Yet
they still scoffed and said "Could Sarah give birth at the age of ninety?
Could Abraham beget at the age of a hundred?" At once the features of
Isaac's visage changed and became like Abraham's. Whereupon they all
cried out "Abraham begat Isaac."
Rashi to Gen. 25:19-"And these are the generations oflsaac"-comments
"because the scoffers of the time said that Sarah had conceived from
Avimelekh, since she had been with Abraham many years without conceiving
from him. What did the Holy One Blessed be He do? He changed the
visage of Isaac into that of Abraham. And they all testified that Abraham
begat Isaac."
Obviously I do not overlook the fact that all this is legend, but in all
legend there is a grain of reality and experience of life. The grain of
reality, the "prosaic" from which the legend stems, is that it is possible
to attribute paternity based on facial resemblance. I do not say that such
resemblance is complete and convincing proof – as with Abraham and
Isaac-but it is corroboration and in association with the credible evidence
of the mother may sometimes turn the scale.
Not only rabbinical legend, but English and Canadian case law does not
make light at all of the weight of physiognomical resemblance… but regards
it as evidence or evidence supportive of paternity (see Wigmore, Evidence,
3rd ed., I, 622, para. 166 note 2).
420
Part Six
PENAL LAW
CONTENTS
Chapter One: GENERAL PRINCIPLES
1. Ein Onshin Min Hadin – No Creation of Offences
by Inference
2. Forewarning
3. Emergency Legislation
4. Res judicata
5. Confiscation of Property
6. Conspiracy
7. Attempt
8. Punishment in Cases of Doubt
9. Human Dignity
427
429
430
431
431
432
432
433
434
Chapter Two: MENTAL ELEMENT
A. Volition
I. Ability to Distinguish Good from Evil
435
B. Knowledge
I. Absolute Liability
2. Foreseeability
436
438
C. Intention
I. Threats
2. Killing of the Wrong Person
440
441
Chapter Three: DEFENCES
1. Self-Defence
2. Theft for Charitable Purposes
3. Enticement
423
443
450
450
CONTENTS
Chapter Four: IMMUNITY
1. The President
452
Chapter Five: EXTRADITION
I. Extradition to Foreign States
453
Chapter Six: OFFENCES
1.
2.
3.
4.
Unlawful Relations
Rape of Spouse
Unnatural Relations
Suicide
5. Physical Injury by Parents and Teachers
6. Abortion
7. Mercy Killing
8. Autopsies
9. Deceit and Fraud
10. Bribery
11. Invitees and Trespassers
12. Desecration of Tombstones
13. Theft
14. Extortion
15. Defamation
16. Publication of Suspicions
17. False Evidence
18. Failing to Take Reasonable Means to Prevent
Wrongdoing
19. Contempt of Court
455
457
460
462
462
465
468
469
470
471
473
473
474
475
477
477
478
480
481
Chapter Seven: PUNISHMENT
A. General
I. Punishable Persons
2. Judicial Considerations
3.
4.
5.
6.
Plea Bargaining
Contempt of Court
Punishment Fitting the Crime
Human Dignity
424
482
484
486
489
489
491
CONTENTS
B. Purposes of Punishment
I . Deterrence
2. Suspended Sentence and Repentance
3. Benefiting from Criminality
493
496
497
C. Reasons for Severity or Leniency
I.
2.
3.
4.
5.
6.
7.
8.
Custom to be Uprooted
Seriousness of Offence against the Public
Past Merit of the Condemned Person
De minimis
Negative Effect on Public
Return of Stolen Goods
Penitents
Shame as Punishment
498
499
499
499
501
502
503
504
D. Rehabilitation
I. General
2. Validity of Pardons
505
506
E. Status of Ex-Convict
1. Innocence
2. Freedom of Activity
3. Public Office
507
508
509
425
Chapter One
GENERAL PRINCIPLES
See further, Part 5, Evidence, p. 339.
I. Ein Onshin Min Hadin – No Creation of Offences by Inference
Cr.A. 41/52
WILKOMIRSKY v. ATTORNEY-GENERAL
(1952) 6 P.D. 663, 664, 669-670
The appellant was convicted of leaving a motor vehicle for which he was responsible
on a public highway, without taking proper steps to prevent it from moving or being
moved from its stationary position.
Silberg J.: It seems to me that from a purely literal point of view,
reg. ll(c) of the Traffic Regulations applies to the present offence. No
vehicle has yet been made that will move by itself. If it does begin to
move by itself, as it were, that is a sign that something has pushed or
pulled it. This is the "movement" of which the regulation speaks. Even
if we assume that the regulation does not in so many words include
"self-propulsion", it certainly, to my mind, includes it in point of law. If
the regulation applies when a driver does not take care that the vehicle
should not be moved, it is all the more so when he does not take care to
prevent it from moving.
In saying all this we are not violating the well-known rule of interpreting a
criminal provision strictly. This rule itself is not so strict and in recent years
breaches have been made in it. I do not mean to recommend a liberal use of
inference to create offences not explicit in the law …. An inference intended
to reach a logical conclusion drawn from one particular to another is unlike
427
PART SIX: PENAL LAW
an inference intended to reach a conclusion, more logical by far, drawn
from one explicit particular to the generalization included within it, in
a subjective rather than a literary sense: "Two hundred" includes "one
hundred". To take care to prevent a vehicle from being moved is certainly
the more "general" in comparison with the lesser concern of preventing
self-propulsion. He who bears the first obligation bears ipso facto the
second obligation. The situation is very similar to the case in which a
person tells a neighbour to look after an animal of his so that it is not stolen.
Does not this include an almost express request that it should not be allowed
to stray? The rule of strict construction common in English and Israeli
criminal law is not as rigid and severe as its counterpart in Jewish law:
"No penalty is inflicted on the strength of a logical inference" (Makkot Sb).
Were that the binding norm in Israeli criminal law, it is possible that the
above reasoning could not be employed here.
I have said "possible" but not certain, since we also find in the Talmud,
in the observations of one amora, some indication or ground for the idea
expressed above: "How can we inflict a penalty by inference alone? Because
it merely explains the matter" (Sanhedrin 76a) i.e., this is not an inference
from what is written to what is not written but a demonstration of the
substantive intention of the explicit rule. This is a fine but very clear
distinction.
c,.A.
205/73
ROSS v. STATE OF ISRAEL
(1 973) 27(2) P.D. 365, 372
Cohn J.: According to sec. 2(2) of the Extradition Law, 1954, a person may
be extradited only if the offence of which he is charged in the requesting
state would have been "one of the offences set out in the Schedule to
the Law" had it been committed in Israel. The offences of which the
accused is charged in the U.S.A. are first, the transporting of a kidnapped
person from one state to another and secondly the receipt of money paid
as ransom. Counsel for the appellant submits that neither is an offence
under the Schedule if committed in Israel.
It is a leading principle in penal law that "no penalty is inflicted on
the strength of a logical inference" (Sanhedrin 54a and elsewhere) by way
of arguing from minor to major, or by similarity of phrase, by syllogism
or analogy, but only by virtue of enacted law. It is a law alone that
can render an act, with all its defined constituents, criminal. What the
428
GENERAL PRINCIPLES
law does not render criminal in clear, explicit terms, no interpretation,
analogy or logical inference can render so. All this is axiomatic and there
is no need to expand thereon. Since on one view extradition is a criminal
process it follows that with respect to extradition, one must be meticulous
not to treat a criminal act as an offence punishable in Israel simply because
it has been made an offence under the law of another country, as long
as the Israeli legislature has not, in clear and precise language, made
that same act an offence in Israel as well.
Assuming even that extradition is a criminal process, it is in any case not
intended as a punishment but merely to compel the accused to abide by
his obligation to be answerable to the law for the act he had committed.
2. Forewarning
Cr.A. 1/48
SYLVESTER v. ATTORNEY-GENERAL
(1948) I P.D. 5, 29
The case dealt with the publication of information that was liable to benefit the enemy
and harm State interests.
Smoira P.: I may add for my own satisfaction that in recognizing the
retrospective validity of this Law I am far from recognizing a "barbaric"
enactment, since, in following Blackstone's definition, I think it is not to
be said that the act of which the appellant is charged was an indifferent
act when committed, which the legislature thereafter, for the first time,
pronounced to be a criminal act. The legislation with retrospective effect
here did not create a new crime unknown until then in the occupied
part of Jerusalem, and it could not therefore be said that a person who
committed the act of which the appellant was charged could not have
had mens rea since he did not know or could not have known that what
he did was criminal. On the contrary, good sense requires that whoever
actually committed ·an act of the ·kind charged, after the declaration of
the State of Israel, in the territory of the Israeli state which was fighting
for its existence, knew that that kind of act was criminal.
429
PART SIX: PENAL LAW
I am therefore of the opinion that in concluding that the Official Secrets
Ordinance has retrospective effect, I am not in conflict with any rule of
natural justice or elementary equity.
The rule of Jewish law also – that no one is to be punished unless
forewarned-does not assist the defence …. If a person has spied in Jerusalem
during the period in question, it would be impossible to say in the words of
Scripture regarding the person who was found cutting down trees on the
Sabbath that "it had not been declared what should be done to him"
(Num. 15:35). Here the consequences were declared in the Official Secrets
Ordinance.
3. Emergency Legislation
See:
NAGAR eta/.
v.
STATE OF ISRAEL.
Part 5, Evidence, p. 396.
Misc. App.
22/ 83
KRAUSS v. STATE OF ISRAEL
(1983) 37(1) l'.D. 365. 369
This was an appeal against a decision to detain the appellant until the end of
proceedings against him on thirteen counts, including bribery, blackmail, deceit, breach
of confidence, theft and forgery committed during the year he acted as chairman of
the Tel Aviv Students Union.
Elon J.: In flagrantly serious offences, such as breach of trust by bank
officials and the like, we may not, in my opinion, detain a person before
trial merely because of "what people might say", not that I denigrate this
important consideration of deterring criminals and fighting crime. Such
proper judicial policy is, however, a matter for the legislature-it should
provide that, when crime and criminals are on the increase, involving abuse
of public trust and public moneys, it is better in the exigencies of the time
to detain offenders rather than abide by the principle of not depriving
the individual of his freedom before due conviction. Indeed, as the learned
judge below observed in his decision, our Sages have told us that "a court
may impose flogging and other punishment not in accordance with the
Torah; not in disregard thereof, but to set a fence around the Torah …not
430
GENERAL PRINCIPLES
because he merited the penalty but because the exigencies of the time make
it necessary" ( Yevamot 90b; Sanhedrin 46a), because "people are acting
lawlessly" (Rashi to Sanhedrin toe. cit.). Under the halakhah, however,
this task was placed upon the bet-din (religious court), that acted both
as legislature in promulgating takkanot (regulations) and as judiciary. By
virtue of this principle, Jewish penal law and criminal procedure underwent
considerable development, having regard to the social and moral changes
that occurred periodically (see Cr.A. 543/79 Nagar et al. v. State of
Israel (1983) 35(1) P.D. l 13, above). It is different in a legal system
that distinguishes between the legislature and the judiciary. The revival
of a rule such as this of detaining a person because of exigencies should
come by way of legislative enactment.
See:
STATE OF ISRAEL v. EFRATI.
p. 501.
4. Res judicata
See:
HAREL v. GILADI et al.,
Part 4, Regulation of the Courts, p. 333.
See:
STATE OF ISRAEL •. MISHALI,
Part 4, Regulation of the Courts, p. 334.
5. Confiscation of Property
See:
ESTATE OF SHLOMO
dcd., p. 497.
431
PART SIX: PENAL LAW
6. Conspiracy
Cr.A. 381/62
SALIMAN v. ATTORNEY-GENERAL
(1962) 16 P.D. 1981, 1982-1983
Silberg J.: The appellant was tried … for conspiracy to commit a felony under
sec. 2A of the Prevention of Infiltration (Offences and Jurisdiction) Law,
1954.. .in crossing the border into the Gaza Strip. His two associates … were
caught near the border and were tried. The appellant himself never left his
place of residence in Lod, but the Court held that he had agreed… to join
in with the others and to commit the offence together with them.
Counsel for the appellant raises the interesting question of whether the
offence of leaving the country is one to which the idea of "conspiracy"
attaches, having regard to the fact that the offence is "individual" to a
person and two "leavings" of two different people do not combine to
make one "joint" leaving. Because of the mutual "agency" created as a
consequence of criminal conspiracy, learned counsel sought to apply by
way of analogy the well-known rule of Jewish law that there is no agency
with respect to matters of the "person", according to the explanation of
Ketzot haHoshen to Hoshen Mishpat (Law of Agency, 182).
The submission is a good one but cannot be accepted, for the simple
reason that leaving the country in a group usually makes the commission
of the offence easier. .. hence a common element exists in the offences of
the accused persons which gives room for conspiracy between them.
7. Attempt
Cr. C. (T.A.) 909/ 82
STATE OF ISRAEL v. EDRI
(l9R3) 2 P.M. 179-180, 184
The defendant was charged with attempt to possess and deal in drugs, when unbeknown
to her the police had exchanged the packet she was supposed to have picked up and
transferred to another,for another packet containing cocoa powder. She claimed that in
432
GENERAL PRINCIPLES
the circumstances she had committed no offence and that her belief that the packet
contained drugs was not an offence.
Strusman J.: It is an age-old question whether a person can be convicted
for wilful attempt when for reasons not dependent on him there• was
no possibility of committing the offence even if the attempt had been
completed …. As in the matter dealt with by the Sages in Nazir 21 b:
If a woman undertakes a Nazirite vow and then drinks wine or is
defiled by a corpse, she is to receive forty stripes for she committed an
offence, but if her husband nullifies the vow without her being aware of
it and she drinks wine or is defiled by a corpse …
What would be the law?
The English rule that a person cannot be convicted of attempt to commit
an offence when completion of the attempt does not entail an offence does
not apply in our law, according to the definition of "attempt,. in sec. 33(c)
of the Penal Law, 1977, since under that section the acts of the person
concerned can constitute an attempt to commit an offence even though it
was impossible to commit the offence, provided only that he intended to
commit it and began to effect his intention by the appropriate means.
Similarly, the said woman who took a Nazarite vow and "transgressed",
not knowing that her husband had nullified the vow, does not receive
forty stripes. R. Yehudah says that she does not receive stripes by virtue
of Scriptural command, but she is lashed under rabbinical regulation.
Maimonides (M. T. Nedarim 12: 18) adds that this is because of her intention
to transgress.
8. Punishment in Cases of Doubt
F.H. 30/75
KOBI v. STATE OF ISRAEL
(1976) 30(2) P.D. 157, 786-787
Cohn J.: As for the doubts expressed by my learned brethren… respecting the
interpretation and scope of sec. 297 of the Criminal Procedure Law, 1965,
which they resolved each by their historical-judicial research according to
different schools of thought, I shall not go into pros and cons but say
433
PART SIX: PENAL LAW
simply that if doubt exists about the intention of the legislature or the
powers of the court in penal law, our predecessors have already taught
us that we must act leniently. If we do not even award monies when
there is a doubt, a fortiori we do not exact punishment where doubt exists
as to the law (Tosefot to Baba Batra 50b).
9. Human Dignity
See:
KATLAN et al. v. THE
Regulation, p. 199.
PRISON SERVICE u al.•
434
Part 3, Social and Administrative
Chapter Two
MENTAL ELEMENT
A. Volition
1. Ability to Distinguish Good from Evil
Cr.A. 118/ 53
MANDELBROT v. ATTORNEY-GENERAL
(1956) 10 l'.D. 28l, 285, 317
Agranat J.: The appellant was charged … with murder under sec. 214(b) of
the Criminal Code Ordinance, 1936…for causing the death of Meir Shifman
with malice aforethought. The appellant's defence was based mainly on
a plea of insanity. The learned judges who tried the case rejected this
plea but on the other hand decided to convict the appellant of manslaughter
under sec. 212, after finding that the element of "preparation" had not
been proved. In the event they sentenced him to life imprisonment. Both
the appellant and the Attorney-General appealed …
What is meant by "volition''? First of all, it is important to note that
when speaking of "volition", the Common law largely refers to the process
by which a person exercises a "choice" between alternative objectives and
therefore also a "choice" between alternative lines of conduct. The basic
approach-again a clearly ethical approach …is that every normal person
is endowed with "free will" and is therefore able to choose between right
and wrong, between conduct that is morally proper and conduct which
the criminal law (giving expression to the rules of morality) regards with
disfavour. Thus an offender is one who, faced with the choice of doing "as
one should", misbehaves and does wrong. As Maimonides puts it (M. T.
Teshuvah 5:1), "Every man may, if he wishes, freely follow the good path
435
PART SIX: PENAL LAW
and be righteous; if he desires to follow the evil path and be wicked, he
is equally free to do so."
B. Knowledge
I. Absolute Liability
Cr.A. 17/ 59
MAOR-MIZRAHI v. ATTORNEY-GENERAL
(1960) 14 P.D. 1882. 1893-1895
The appellant, a truck driver, was convicted of an offence involving absolute liability
under the Traffic Regula1ions.
Silberg J.: I have read the notable judgment of my learned brother, Witkon
J. He has covered the problem in all its aspects and I respectfully concur
entirely in the conclusion he has reached.
The following observations have only one purpose, i.e. to indicate the
position taken by Jewish law on the question under consideration, the
question of absolute liability. I am of the opinion that when we encounter
such basic questions, we must. .. examine them from the standpoint of Jewish
law. Who knows, the time may perhaps arrive when the Israeli legislature
may wish to compile a written code based upon the foundations of our
national law. It will then be of benefit if it finds a long line of judgments from
the standpoint of Jewish law dealing with practical questions considered
by the courts. Such an over-view may well be preferable to the trend of
abstract research into the sources of Jewish law.
Thus, Jewish law does not recognise absolute liability in criminal law.
Maimonides (M. T. Yesodei ha Torah 5:4; see Sifra to Lev. 20) says:
Corporal punishment or the death penalty is only inflicted when a
person transgresses wilfully in the presence of witnesses and after formal
forewarning, since it is said of one who sacrifices his children to Moloch,
"And I shall set My face against that man". Traditionally, "that man"
436
MENTAL ELEMENT
has been explained to exclude one who acts under compulsion or without
intent or mistakenly. Since in the case of idolatry, which is the most
serious offence of all, one who practises it under compulsion is not
subject to karet (Excision), and, needless to say, the death penalty,
a fortiori with regard to other commandments of the Torah.
That means that no penalty is imposed unless it is accompanied by mens
rea in the original sense of the term, i.e. evil intent, because "man looketh
on the outward appearance but the Lord looketh on the heart" (I Sam. 16:6)
or "the Merciful reaches the heart" as regards both the positive and the
negative commandments (see Kesef Mishneh to M. T. Zoe. cit., in the
name of Ramakh). Hence a person is only punished when his act issues
from the evil instinct of his heart.
On the other hand, we find in Jewish law absolute liability outside the
area of criminal law, in the field of torts.
A person always acts at his peril (mu'ad) whether inadvertently or
wilfully, whether awake or asleep (Baba Kamma 26a).
A person always acts at his peril whether inadvertently or wilfully,
whether awake or asleep, or drunk; if he injures his neighbour physically
or damages his property, he must make compensation from the best of
his possessions (M.T. Hovel uMazik 1:2).
He who damages another's property must make compensation in
full. Whether he acted inadvertently or under compulsion, he is like
one who acted wilfully. For example, if he fell from a roof or if he
stumbled and fell whilst walking and broke someone's vessels, he must
pay for the loss in full, since it is said "And he that killeth a beast
shall make it good." Scripture does not distinguish between one who
acts inadvertently and one who acts wilfully (ibid. 6:1).
Here we encounter a notion which somewhat blunts the edge of absolute
liability and associates it with negligence, as my colleague did with regard
to Anglo-Israeli criminal law. The Jerusalem Talmud states:
R. Yitzhak said, Our Mishnah deals with the case where both were
sleeping, but where one was asleep and the other came to sleep alongside
him, the latter acts at his peril (and the former is not liable if he causes
any damage) (Y. Baba Kamma 2:7).
When must a sleeping person make compensation? When two are
sleeping together and one of them turns over and injures the other
or tears his clothes. Where, however, one was sleeping and another
came and lay down beside him, the latter acts at his peril and if the
437
PART SIX: PENAL LAW
former injures him he is exempt. Likewise where one places a vessel
at the side of a sleeping person who breaks it, the sleeping person
is exempt because the other acted carelessly (M. T. op. cit. 2: 11 ad fin.).
The idea underlying the Jerusalem Talmud and Maimonides is not, as
might appear, that the stringent liability of the second sleeper supersedes
the lesser liability of the first but that the former is not liable at all because
he acted entirely accidentally.
Although above [folio 26b] we treat an act done accidentally as intentional
where a person causes injury… the Torah does not so treat an act which
is entirely inadvertent, since in the Jerusalem Talmud he who was first
asleep is exempt if he causes injury to the one who came to sleep beside
him (Tosafot to Baba Kamma 27b; cf. Rema to Hoshen Mishpat 375:l
and 2).
The absolute liability of Jewish law is the other side of the coin of the duty of
absolute care. In every case-except absolute compulsion-it is possible
ex hypothesis to avoid causing harm by adopting effective preventive
measures; not to take such measures is considered ex lege negligence on
the part of the tortfeasor. When, however, the accidental act is completely
unavoidable, when "no weapon forged against it can avail" and every
preventative measure that might be taken would be ineffective, there is no
justification for imposing liability.
Accordingly, Jewish law is both contrary to and in accordance with
English law. Jewish law rejects the notion of absolute liability with regard
to the punishment of the criminal offender, but where it recognises such
liability, in respect of making good damage caused by a tortfeasor, it
regards the same as a consequence of negligence.
That is the plain stand taken by Jewish law towards absolute liability,
and it needs no vindication.
2. Foreseeability
Cr.C.(T.A.) 135/75
KARIM v. STATE OF ISRAEL
{1976) I P.M. 307. 312-313
The appellant was convicted of negligently causing the death of a young child whilst
driving a tractor along an unpaved road.
438
MENTAL ELEMENT
Sheinbaum J.: I wish to observe that Jewish law also recognises the
foreseeability test and accordingly distinguishes the degree of liability to
be imposed for unintentional killing.
The second chapter of M. Makkot states that "a person who throws a
stone into the public domain (and kills another) is banished" to a city of
refuge, as is the case with an unintentional killing. The Gemara (Makkot 8a)
asks "if into the public domain, is he not a deliberate offender?"…. He has
acted recklessly without concern, which brings the situation closer to the
case of the wilful offender and not to manslaughter. The Gemara explains
that it was not an instance of throwing a stone but of dismantling a wall
and one of the dislodged stones hit and killed a person. This answer,
however, did not satisfy the Sages, since although a person demolishing a
wall has that purpose alone in mind, he must look around, and if he carries
out his work without doing so he is nearer to being a wilful offender than
an inadvertent one. The Gemara goes on to explain that he was dumping
the debris onto a rubbish heap and not throwing it into the public domain
but rather in a place which people generally do not frequent. This answer
too is unsatisfactory. "Under what circumstances?" it is asked. "If the
public usually frequent the place, he is guilty of negligence, and if not, it
is accidental." That means, two situations are possible: that the wall was
being demolished and disposed of in a place where people either are or are
not usually to be found. In the former instance it is foreseeable that a person
might be injured by a falling stone, and therefore not to take due precautions
renders the act close to wilful; if people are never to be found, it is not
to be foreseen that anyone might be injured and there is no negligence
but rather, accident. The Gemara replies that the rubbish heap was not
frequented when the wall was being demolished but sometimes the public
,did resort to the place. Foreseeability is not very high and the negligence
does not reach a degree of wilfulness, but it is still foreseeable that someone
might be there and therefore this is an instance of a careless act not
amounting to culpable negligence in the terms of sec. 218 of the Criminal
Code Ordinance.
We may therefore conclude that the test of negligence is the degree of
foreseeability. If that is high, almost certainly the matter will be treated
as one of willfulness or culpable negligence that is close to it. If there
is no foreseeability at all, the matter will be treated as an accident.
A person acts unintentionally only where foreseeability is not close to
certain.
In the present case the situation is very much like the definition given by
Maimonides of a case that is considered to be almost an accident. "There
may be a killing done unintentionally that approaches accident where death
occurs in extraordinary circumstances" (M. T. Rotze'ah 5:3).
439
PART SIX: PENAL LAW
The foreseeability test is the same in Jewish law and in the legal system
we have adopted, and in accordance therewith no negligence can be found
in the act of the appellant.
C. Intention
1. Threats
C,.A. 97 / 68
SUJSSA v. ATTORNEY-GENERAL
(1968) 22(2) P. D. 159, 767-768
The·District Court convicted the appellant of the murder of his brother-in- law.
Kister J.: The District Court judges regarded the removal of the knives
from the sink and his pointing of them at his guests as evidence of the
appellant's decision to kill. Although one might infer from such conduct
that a person had made up his mind to kill, and on occasion a threat
to kill may be foundation for finding an intent to do so, this should
not be made a hard and fast rule. Long ago our Sages stated (Shevuot 46a):
"A person may make an extravagant remark and not carry it out." As
regards the present appellant, one should not deduce any intention or
decision to kill by reason only of his drawing out the knives and pointing
them at his father and brother-in-law. It was proved in the lower Court
that the appellant would often threaten people with a knife, even his
children, in order to persuade them to eat their food. Hence the drawing
of the knives as such cannot serve as proof of his decision to kill. True, had
further circumstances been drawn to the attention of the Court, such as that
immediately upon seizing the knife the appellant approached the victim and
stabbed him fatally-and particularly had he approached the victim from
behind and there stabbed him (see Danoch v. Attorney-General (1947) 14
P.L.R. 275), that could serve as a foundation for proof of intention to
kill. There is, however, no evidence of that. Here, as the father attested,
they seized the appellant's hands and then, in the course of their quarrel,
440
MENTAL ELEMENT
the precise course of which was not evidenced in court (although in his
statement to the police, the father stated that he tried to separate the
deceased and the appellant), the deceased was stabbed to death. The actual
threatening with the knife and pointing it at the visitors were not enough
to prove beyond all reasonable doubt that the appellant had made up his
mind to kill at least one of them.
2. Killing of the Wrong Person
Cr.A. 406/ 72
SNIR v. STATE OF ISRAEL
(1974) 28(1) P.D. 234, 235, 239-240
This was an appeal against a conviction for murder, attempted murder and other
incidental offences. The main submission on appeal was the absence of intent to kill
and alternatively. that the intention was not to kill the deceased, who was killed due to
mistaken identity, but another who was present.
Cohn J.: The question of one who intends to kill one person and actually
kills another was already disputed by the Sages of the Mishnah: the
majority held that the defendant was guilty, while R. Shimon held that
he was not (Sanhedrin 9b). Maimonides decided according to R. Shimon
(M. T. Rotze'ah 4:1), but at another point he expressed the opposite view,
"since he carried out what he had intended" ( M. T. Shabbat I: J0), and
since the act was prohibited it is immaterial who was the victim. Whilst
Maimonides gives a reason for holding a person guilty when he intends
to kill one and actually kills another, he adduces no reason for holding
him innocent; this indicates that he accepted the reason given by R.
Shimon as set out in the Gemara (Sanhedrin 79a), that the Torah made
the law relating to murder conditional precisely upon his lying in wait
and rising up "against him" (Deut. 19: II) i.e. a specific person. Moreover,
witnesses must warn the accused before he commits the act that he may not
kill the person in question, and a general warning about murder is not
sufficient (Sanhedrin loc. cit.: He is not liable unless he declares, "My
intention is to kill so and so").
It follows that R. Shimon's exemption is entirely consequent upon
interpretation of written Scripture and is an integral part of Talmudic
441
PART SIX: PENAL LAW
procedure that requires forewarning of the accused. Yet in contemplation
of legal logic, the ground previously given by Maimonides, that since he
committed the act that he intended he must be found guilty, recommends
itself: here is a criminal act and a criminal intention – and a prohibited
consequence was also achieved, i.e. the death of a person.
442
Chapter Three
DEFENCES
1. Self-Defence
Cr.A. 232/55
ATTORNEY-GENERAL v. GREENWALD
(1958) 12 P.D. 2017
Agranat J.: I must add that if these conclusions are correct there is no
occasion to apply Jewish law, upon which the President based himself, nor
does any importance attach to the example of the "guardian of the camp"
from which he drew an analogy. The essence of that rule is that "one soul
does not yield to another" and behind it lies the concept, "Is your blood
redder than mine?" Rav was asked by a person what he should do, the
local governor having ordered him to kill another on threat of being
himself killed. Rava's answer was, "Let him kill you rather than that you
should commit murder. Why do you think your blood is redder, perhaps
his blood is redder?" (Pesahim 25b). In the words of Rashi ad Joe., "Who
says your life is more beloved by God than his? Perhaps his life is more
beloved." To save your own life you may not transgress the prohibition,
"Thou shalt not kill." The rabbis accordingly ruled that the life of an
individual, innocent of all crime, is not to be abandoned in order to
save the many. Thus Maimonides states (M. T. Yesodei ha Torah 5:5):
If gentiles tell them to yield up one of them to be killed, otherwise they
themselves will be killed, let them be killed but not yield up one Jewish
soul. If a person is specified.. .if he is guilty of murder. .. they should give
him up, but they are not so informed of this rule at the outset…
It is obvious that this rule embraces the case where a person is faced
with the option of committing (or not committing) a real act of violence
against another who has never done or is not about to do him any harm
and is wholly innocent, and he himself can find no other way of avoiding
443
PART SIX: PENAL LAW
immediate danger to himself. The problem was posed in the very same form
in the legal philosophy of other peoples (see the summary in G. Williams,
Criminal Law, para. 176). So was it dealt with in English law (R. v.
Dudley and Stephens (1884) 14 Q.B.D. 273) and in American law (U.S. v.
Holmes (1842) 26 Fed. Cas. no. 15,383. It is sufficient to cite Cairns in his
Philosophy of Law from Plato to Hegel, 409.
In its general aspect the right of necessity raises the question whether I
may use violence against one who has used none against me. Concretely,
may a man who is shipwrecked and struggling in extreme danger of his
life, in order to save himself, thrust another from a plank on which
he had saved himself. This is not the case of a wrongful aggressor making
an unjust assault upon my life, and which I anticipate by depriving him
of his own.
The case before us is quite different because the problem here is essentially
whether Kastner's omission to do anything at all regarding the Jews of Klaus
and other towns-not informing them about Auschwitz-was equivalent
to abandoning the majority of these Jews to the Nazi murderers in order
to save a few of them. The President also sensed the difference between
these two kinds of cases, when he said, "I do not intend to lay down
the law according to Maimonides as to whether Kastner delivered, in
the full sense of the word, the Jews of Klaus and the others into the
hands of real murderers." Clearly the solution of this problem depends
– as we have repeatedly said-upon definition of the moral obligation
which Kastner bore towards Hungarian Jewry as a whole. The matter
reminds us somewhat of the well-known beraita in Baba Metzia 62a of
"two people travelling on a journey and one carried a pitcher of water.
If both drank, both would die, but if one only drank, he could reach an
inhabited place. The son of Petura taught: It is better that both should
drink and die rather than that one should see his companion's death. Then
R. Akiba came and expounded: ' … that thy brother may live with thee
– thy life takes precedence over his life.' " In his essay "On the Horns
of a Dilemma" Ahad Ha'am supports the view of R. Akiva, explaining
that no "moral obligation" rests on one to save another when in doing so
his own life is put at peril. Referring to the case that came before Rav, he
writes: "Had the situation been the reverse, a person coming and asking,
'So and so has been taken to be killed but I can save him by offering
myself in his place, what shall I do?' Rav would have replied 'Let him be
killed but do not take your life into your own hands, for yours is redder' "
(The Writings of Ahad Ha'am, 370, 373).
And so in the case before us, had Kastner reasonably believed that
no useful purpose would be served by telling the Jews about Auschwitz,
444
DEFEN CES
but that this might rather harm the negotiations he was conducting with
the Nazis in which he saw the sole chance of saving most of Hungarian
Jewry from the danger that faced them, he had no moral obligation at
all to act in the suggested manner, only because some thousands of Jews
might thereby be saved.
See:
A. v. STATE OF ISRAEL, p.
480.
Cr.A. 89/78
AFANGAR v. STATE OF ISRAEL
(1979) 33(3) P.D. 141. 150, 160
Elon J.: Sec. 18 of the Criminal Code Ordinance, 1936, now sec. 22 of the
Penal Law, 1977, deals with a principle of criminal responsibility called
"necessity", a name which by itself is not sufficiently instructive about the
contents of the section. As we shall see, the section does not embrace
only one principle but serves as the home for two principles of criminal
responsibility, each of which has its own history and independent existence.
Sec. 22 of the Penal Law provides as follows:
A person may be exempted from criminal responsibility for any act or
omission if he can show that it was only done or made in order to
avoid consequences which could not otherwise be avoided and which
would have inflicted grievous harm or injury on his person, honour or
property or on the person or honour of others whom he was bound to
protect or on property placed in his charge; provided that he did no
more than was reasonably necessary for that purpose and that the harm
caused by him was not disproportionate to the harm avoided.
As I have said, this section covers two principles of criminal responsibility
-the defence of "necessity" in the classic strict sense and self-defence…
Learned counsel for the appellant drew our attention also to the position
under Jewish law on this subject, and I commend him for that since the
position under Jewish law on the matter is important for us, as shall emerge
below.
Self-defence of the individual in Jewish law is provided for in two
beraitot. The first is found in Sanhedrin 73a:
445
PART SIX: PENAL LAW
The Rabbis taught: Whence do we know that where one pursues his
fellow man to kill him, he may be saved by taking the life of the
pursuer? Scripture says, "Thou shalt not stand by the blood of thy
brother" (Lev. 19:16).
For an additional source of the rule, see Sifre to Ki Tetze, 223 and Baba
Kamma 41 b and Sanhedrin loc. cit.
An additional provision is made by the second beraita, found in
Sanhedrin 74a:
It has been taught, R . Yonatan b. Shaul said: If one pursued his fellow
man to kill him and the pursued could have been saved by maiming
one of the pursuer's limbs (but without killing him)and he did not do
so but killed him instead, he is liable.
Both these beraitot therefore deal with individual defence. Everyone may,
indeed must, rescue the pursued from the pursuer who seeks to kill him. This
duty is anchored in the Scriptural verse, "not to stand by the blood of thy
brother". The rescuer must take steps that cause only the minimum harm
to the pursuer in rescuing the pursued; as long as he can save the pursued
by injury to a limb of the pursuer… he may not kill him, and if he does kill
him, he is to be executed.
Maimonides sums up this rule (M. T. Rotze'ah 1:6-16) as follows:
Where one is pursuing his fellow man to kill him… every Jew is
commanded to save the pursued from the pursuer even by taking the
life of the latter… .If, however, he can be saved by injuring one of the
pursuer's limbs … that is to be done; but if that is not possible and
the pursuer must be killed, he is to be killed although he has himself
not yet killed anyone … If a person intends to strike his fellow man to
death, the pursued is to be saved by cutting off the hand of the pursuer,
and if that is not possible, by taking the life of the pursuer, since it
has been written "thine eye shall have no pity" (Deut. 25: 12).
Anyone who is able to save another and does not do so, is in breach
of "Thou shalt not stand by the blood of thy brother".
Although flogging is not imposed for breach of these negative
commandments because there is no act of commission, they are
nevertheless serious offences. Anyone who causes a Jewish life to be
lost, it is as if he destroyed the entire world, whilst any one who sustains
one Jewish life, it is as if he sustained the entire world.
(See also Maimonides, Sefer haMitzvot Negative Commandment 293,
regarding circumcision … )
446
DEFENCES
The rule as formulated by Maimonides confines individual defence to
cases where the attack is a serious one and may result in the death of
the pursued … .In the later literature, the defence was broadened to cover
every assault, even when there was no fear of death. Thus Rosh in the
thirteenth century writes: "The law is that if a person is seen striking his
father or son or brother and some one beats the striker, he is exempt.
Likewise if a Jew is seen striking his fellow man and the latter cannot
be saved without beating the striker, even to death, the striker may be
beaten to keep him from a prohibition" (Piskei haRosh to Baba Kamma,
3:13, 126a). So also Maharshal in sixteenth century Poland, decided that
"in relations between men, as where one strikes his neighbour, every one
-even an ordinary person-is permitted to rescue his fellowman and beat
the striker" ( Yam Shel Shlomo to Baba Kamma, 3:9).
Here, too, restrictions exist on the measure of force that might be
employed to save the person being struck. It goes without saying that
"if a person can save himself by inflicting a minor injury but inflicts a
serious injury, he is guilty" (Piskei haRosh, foe. cit.). Mordekhai b. Hillel,
a contemporary of Rosh, adds that "one should not thrust out at anyone
who is fighting with his neighbour but should gently separate them. If he
does thrust out, he must answer to the law" (Mordekhai to Baba Kamma,
38).
The force that may be employed in individual defence is dealt with at
length in the Responsa but this is not the occasion to enlarge thereon.
We may note one responsum of R. Israel Isserlein, in fifteenth century
Germany. A person who pleaded self-defence was convicted because he
used exaggerated force in defending himself by cutting off the hand of the
person attacking him. lsserlein (Pesakim uKetuvim 208) held as follows:
Who permitted him to cut off the other's hand? He should have extricated
himself in a less serious manner… where one can only save oneself by
inflicting injury one may do so, on the principle that if another is
preparing to kill you, anticipate him and kill him. If, however, he felt
that the other did not intend to be brutal, he should not have saved
himself by hitting out at the other with loss of limb. Although the
person attacked did not do what he did intentionally but rather, acted
with insufficient care and recklessly, the rule nevertheless is that a person
acts at his own risk and will be punished.
Just as the rescuer offends if he employs undue force, he is also prohibited
from using any force at all when in the circumstances it appears that
the attacker has desisted, in which case self-defence is no longer an act
of saving the attacked person, but rather a fight for the sake of punishing
the attacker. So Maharam miRotenburg… decided in the thirteenth century.
447
PART SIX: PENAL LAW
Assault occurs when "after one person attacks another and injures him and
then has no intention to continue to attack him, but the other goes on to
attack the first person and injures him. But as long as the attack continues,
one may save oneself, and if that is not possible without inflicting injury,
that is permissible and he is exempt" (Resp. Maharam bar Barukh cited in
Mordekhai to Baba Kamma 196). The subject of self-defence has been dealt
with in the Talmud, the responsa and the codes and many of the details are
of no concern in this trial (see A. Enker, Duress and Necessity in Penal
Law (1977) 212 ff.; Ben Zimra, "The Spilling of Blood through Necessity",
3-4 Jewish !Aw Annual (1976-1977) 117; I. Warhaftig, "Self-Defence in
Murder and Personal Injury", 81 Sinai (1976) 48). We may sum up the
matter by quoting Karo, Hoshen Mishpat, 421:13:
Where one began (the attack), the other is exempt since he is at liberty
to strike back to save himself; but the response must be measured;
where it is possible to use moderate means but he inflicts serious injury,
he is guilty. The position is the same where a person sees a Jew striking
another and cannot save the latter without attacking the attacker, he
may strike him to keep him from breaching a prohibition.
It follows from the foregoing that(a) in Jewish law every one has the duty of coming to the help of another
who stands in serious danger of being killed; if there is only danger of injury,
no such duty arises according to many of the Sages but it is permitted to
do so even if injury is thereby inflicted on the "pursuer"; it is superfluous
to add that this right avails the pursued himself in self-defence;
(b) Such duty and right obtain in respect of any one and against any
one and obviously no kinship or other relationship need exist between a
rescuer and the pursued involving any responsibility for mutual well-being:
(c) The duty and right are only available as the circumstances may
require for the defence of the pursued, i.e. when the pursuer is likely to
continue attacking the pursued, but not when it appears that the danger has
passed and the intervention of the "defender" does not haye the character
of defence and is otherwise motivated;
(d) The leading rule is that a balance must be maintained in the amount
of force the intervener employs in defence of the pursued, and exemption
from criminal liability is conditional upon the employment of the minimum
force required for the purpose … otherwise criminal liability attaches for
any injury caused to the pursuer and clearly for killing the pursuer (see
Maimonides, foe. cit. 13 and c.f. Hagahot Maimuniot ibid.).
It is noteworthy that the basic idea behind the law relating to the defence
of others in Jewish law lies in values informing the philosophy of Judaism,
which are expressed in the verse "Thou shall not stand by the blood
448
DEFENCES
of thy brother." This verse has been interpreted to go beyond the duty
and the right in criminal law of saving the pursued, and to embrace a
general moral religious duty to come to the assistance of anyone who
finds himself in danger.
This also is a very broad subject and we shall only point to a passage
in Maimonides (/oc. cit. 14) that relies on the Talmudic sources (Sifra to
Kedoshim 2:4, 8 and Sanhedrin 73a):
Anyone who is in a position to rescue another and does not do so,
transgresses 'Thou shalt not stand by the blood of thy brother.' Likewise
anyone who sees another drowning in the sea or being attacked by bandits
or by wild animals and is able himself to save him or to get others to do
so and does not do so is equally in transgression.
.. .It appears to me that the rule of self-defence, to the extent that it concerns
the physical injury of another person, applies in every instance where a
reasonable person who is concerned regards it his moral, civic duty in the
particular circumstances to go to the assistance of the "attacked"… .Israeli
law indeed, like most modern legal systems, does not impose a legal duty
of rescuing those who find themselves in danger. (A single example of
such a legal duty is seemingly reg. 146 of the Traffic Regulations of 1961,
which obligates the driver of a vehicle who comes across a person injured
in a road accident to extend assistance to him.) The "good Samaritan"
has not been legislated for. In Jewish law as well, non-observance of
the duty resting on every one to save another who is in danger…is not
punishable by stripes because no positive act is involved …. An act, which
in normal circumstances is an offence, but which is done out of good
will to rescue another from danger of physical injury, is unassailable
as a criminal act, taking into account, of course, the amount of force
used and keeping some balance between "the two evils. "….The statutory
limitation of saving another is not intended to exclude one or another group
of people but only to restrict the defence to a case where some specific
person is in danger of injury, and not where the defendant is acting on
behalf of the general public (see Enker, op. cit. 1I 1 and Feller, "'Necessity'
Stricto Sensu as a Situation Negating the Criminality of Conduct" (1972)
4 Mishpatim, 5, 12). The defence will not only not apply when a person
intervenes "just for the fighting" (see R. v. Duffy (1966) 1 All E.R. 62) but
also when intervention is mainly motivated by a desire to do justice because
someone has been unlawfully attacked and not by a desire to defend him,
for instance when the quarrel is subsiding and the rescuer then intervenes
(see the Responsum of Maharam miRotenburg quoted above).
449
PART SIX: PENAL LAW
2. Theft for Charitable Purposes
Cu(. 515/75
KATZ v. STATE OF ISRAEL
(1976) 30(3) P.D. 673, 705
This was an appeal against conviction for the offence of stealing public funds.
Schereschewsky J.: The fact that the appellant did not use the large
sum involved for his own purposes but for charity is no defence against
conviction (as opposed to sentence) for stealing. In Jewish law as well,
he remains a thief, since when a person steals and consecrates the stolen
thing he must pay the double penalty (Baba Kamma 68b), i.e. not only must
he return the capital, but he must pay double the amount as a fine imposed
by Jewish law on a thief.
3. Enticement
Cr.A. 360/80
STATE OF ISRAEL v. AFANGAR
(1981) 35(1) P.D. 228, 234
The respondent was found guilty by the District Court of the offence of acting as
an agent for the purpose of dealing in drugs under sec. 14 of the Dangerous Drugs
Ordinance [Consolidated Version] 1973. The State appealed on the grounds that the
respondent ought to have been convicted of trafficking in drugs, and that sentence
was too lenient. The respondent appealed against the severity of his sentence.
Elon J.: The principle in our legal system- as formulated by the Sages
concerning the temptation of Eve by the primordial serpent-is, "When the
words of the teacher and those of the pupil [are contradictory], whose words
should be hearkened to? surely the teacher's!" (Sanhedrin 29a). The very
same expression is used in order to establish criminal responsibility of an
agent who commits an offence at the behest of his principal (Kiddushin 42b).
450
DEFENCES
When the words of the law and those of a seducer are contradictory, those
of the Jaw should be heeded, and the person led astray cannot free himself
of criminal responsibility with the primordial claim, "Someone seduced me
and as a result, I sinned."
Cr.C.(T.A.) 503/81
STATE OF ISRAEL v. SHNERER
(1986) 3 P.M. 82, 86-87
In the course of a search of his premises, the defendant tried to bribe an excise officer.
The latter, after reporting the mailer, was sent back to entrap the defendant and was
successful. The defendant submitted in defence that the agent had instigated the bribery.
Strusman J.: As a matter of public policy, I fear that any recognition
of the defence of "entrapment" will make things very difficult for the
police who are assisted by secret agents who penetrate the criminal
community. Such recognition will also lead to attempts to uncover in
court the identity of police informants, the manner in which they operate
and the consideration they receive, and by the same token imperil them
and reduce the possibility of the police continuing to employ them. The
public, interested in uncovering criminals and bringing them to justice,
would thus suffer. The police should, however, instruct their agents not to
entice honest people or those who have given up their old ways or have
no interest in breaking the law. If an agent wrongly led someone astray,
the prosecution or the Attorney-General must decide whether it is right
that the person be charged and convicted (for the judge has no authority
to set the charge aside or stay proceedings, whereas they know the truth
about the agent's doings and the defendant's criminal past, if any, before
evidence is given in court), and whether public policy and justice do indeed
justify criminal proceedings being taken against that person.
We may learn from our sources the extent to which the enticement of a
person to commit an offence is invalid, even for the purpose of preparing
the evidence against him, although he is a known criminal, so much so
that eavesdropping [i.e. planting witnesses to listen to what criminals say]
was prohibited except in order to obtain evidence against one who enticed
another to idolatry and that only for the purpose of getting him to retract
(Sanhedrin 67a).
451
Chapter Four
IMMUNITY
I. The President
See: JABOTINSKY et al. v. PRESIDENT OF THE STATE OF ISRAEL, Part 3, Social and
Administrative Regulation, p. 141.
452
Chapter Five
EXTRADITION
1. Extradition to Foreign States
Cr.A. 30S/7S
PESACHOWITZ v. STATE OF ISRAEL
(1977) 31(2) P.D. 449, 465-466
Cohn J.; Those states which under their law do not extradite their own
nationals do not "spread their tabernacle of peace" out of love for their own
nationals but because of jurisdictional requirements: their law authorizes
their courts to try nationals who have committed an extraditable offence
beyond their frontiers. Furthermore, extradition treaties require them to try
offenders instead of extraditing them. (The argument of counsel that this
obligation is not binding since it only applies when "that appears proper" is
no argument: all jurisdiction is conditional upon preconditions such as the
health of the accused, the availability of witnesses and evidence and the
like.)
The Deputy President has already drawn attention to the well-known
dictum of Grotius that extradition and punishment are two alternatives long
available to governments. This common purpose that underlies extradition
agreements, not to allow offenders to escape the law, is attained in one of two
ways, either by extradition to the requesting state for trial and punishment
or by trial and punishment by the state to which the offender has escaped. A_
state which under its law cannot or is not prepared itself to try the offender
cannot be allowed to say that it cannot or is not prepared to extradite
him. This rule of Grotius continues to be effective down to modern times,
at least as regards those states that have undertaken to extradite under
agreement. (As regards states that have not so undertaken, it seems that
the rule is no longer binding under international law: see Schultz, Treatise
in International Criminal Law, vol. II, 309-10.) On the other hand, a
state that is itself ready to try and punish an offender fulfils its obligation
by such trial and punishment and need not extradite.
453
PART SIX: PENAL LAW
Thus trial in the requested state is equivalent to extradition. An extradition
agreement provides for complete mutuality if it gives the parties thereto the
choice of extradition or trial. The fact that one state may in practice
choose to extradite whilst another may choose to try makes no difference
so long as one of the alternatives of the mutual undertaking is followed
(see S.Z. Feller, "The Scope of Reciprocity in Extradition" (1975) 10 Israel
Law Review, 446).
It is perhaps pertinent to note that Grotius grounds this rule inter alia, as
is his wont, in the Jewish sources. The people of Judah extradited Samson
to the Philistines (Judges 15:13) and although they did so out of fear of
a Philistine attack (ibid. 15: 10) they at least regarded the request of the
Philistines as being justified (ibid. 15: 12) and Samson himself preferred
ext.-adition to being "fallen upon" by the men of Judah themselves. When
the evil occurred in Gibeah, the tribe of Benjamin were asked to deliver
up the base men of Gibeah to be killed so that the evil of Israel be put away
(ibid. 20: 13), and upon the refusal of the men of Benjamin to do so, war
broke out (ibid. 14). Indeed, an unjustified refusal to extradite criminals is a
valid ground for war (The Laws of War and Peace, vol. 2, ch. 21 para. 4).
Regarding the purpose of extradition not to enable a criminal to escape the
law, Grotius relies on the verse, "Thou shalt take him from Mine altar that
he may die," (Ex. 21: 14) and if that is the case with the Holy of Holies, how
much more so with a state of refuge. Grotius (De Specialibus Legibus III,
88) cites Philo the Alexandrian to the effect that the impure have no
place in the Temple, all the more so criminals whose impurity is indelible
and cannot be expunged except by punishment. Grotius goes on to say
that the Torah of Moses tells us that non-extradition is only justified
regarding those who have erred unwittingly, for example, those who have
killed unintentionally and may escape to a city of refuge or those who
are wholly innocent like the bondman who has escaped from his master
(Deut. 23:16). Criminals, however, must be punished or extradited (op.
cit. 5).
454
Chapter Six
OFFENCES
1. Unlawful Relations
Cr.A. 809/76
BALILI v. STATE OF ISRAEL
(1977) 31(2) P.D. 598, 602-603
The appellant challenged his conviction for unlawful sexual intercourse on the ground
that the prosecution had not proved "penetration''.
Cohn J.: Let us not think that the English have "copyright" on the need
to prove "penetration"… .The "copyright" belongs to our revered Sages;
A Sanhedrin that orders execution once in seven years is called 'a bloody
assize'. R. Eliezer b. Azariah says, once in seventy years; R. Tarphon
and R. Akiva say, 'Had we been members of the Sanhedrin, no person
would have been put to death' (M. Makkot 1:10).
The Gemara asks (Makkot 7a) how R. Tarphon and R. Akiva could have
succeeded in their purpose, many offences being punishable by death, and
upon proof by valid and sufficient evidence they would have been bound
under law to impose the death penalty. R. Yohanan and R. Elazar replied,
in respect of offences of manslaughter, and Abaye and Raba replied that in
respect of sexual offences, they would have enquired whether the witnesses
had actually observed intimacy, actual penetration by the male … and since
witnesses could not attest to that, they would have been prevented from
imposing the death sentence.
The Sages, were, however, not prepared to go to such extremes. Like
Shmuel they ruled that witnesses need only attest to having seen the
couple acting in an unchaste manner (ibid.; Baba Metzia 91a). Maimonides
decided the rule (M. T. /ssurei Bi'ah I:19) as follows:
455
PART SIX: PENAL LAW
Witnesses do not need to see the adulteress copulating and the man
penetrating the woman. Once they have been seen embracing in intimacy,
they are executed on the evidence; we do not say perhaps they did not
copulate since it is presumed that this kind of conduct is copulation.
Such copulation is, in the language of the Talmud (M. Yevamot 10: 1; 54a),
the penetration that is our present concern, except that for the purposes
of the halakhah complete penetration is not necessary (see R. Ovadiah
miBertinoro to M. Yevamot 8:2). So it is also in English law under which
mere entry of the tip of the penis is enough without tearing the hymen.
Penetration is required, by the law of the Torah, with regard to "All of
these abominations" (Lev. 18:29) which include all forbidden intercourse
( Yevamot 54b), and without penetration no offence is committed. (In the
Torah that is important not only with respect to penal law but also with
respect to religious ritual law, since there is intercourse by reason of which
a woman becomes forbidden to her husband and so on.) As the Tur, Even
haEzer 20 puts it:
Where a man has incestuous intercourse or forbidden intercourse … once
he has penetrated the woman, both are liable to karet (Excision) or
flogging or death by execution …. Penetration consists of inserting the tip
of the penis, although he withdraws at once and does not complete his
intercourse with an emission…. Witnesses need not testify that he made
penetration but that they were intimate in the manner of adulterers and
on such evidence they are condemned to death.
Thus we see that although in the law of the Torah penetration is a sine qua
non of forbidden intercourse, explicit evidence is unnecessary but it may be
inferred from the circumstances, "the manner of adulterers". When there
is evidence of their embracing or lying together or a fortiori copulating,
penetration is presumed and he who argues otherwise bears the burden of
proof.
456
OFFENCES
2. Rape of Spouse
Cr.A. 91/80
COHEN v. STATE OF ISRAEL
(1981) 35(3) P.D. 281, 283, 288-290, 291
The question in this appeal was whether a husband can be guilty of raping his wife by
having "unlawful" intercourse with her against her will.
Bekhor J.: The parties married in 1976 and after a year they had a son. The
marriage did not go well and it was alleged that the wife had entered into a
relationship with her employer, even going abroad with him and others. The
parties, however, continued to live under one roof. The offences charged
against the appellant were committed in February and March 1979 whilst
the parties were living in the same abode although the woman was already
thinking of divorce: they were in fact divorced some months later…
Jewish law is part of the law effective in the present matter and it need not
be evidenced and proved, the court having judicial notice of it. The Court
was presented with an opinion by Dr. N. Rakover, Adviser on Jewish
Law at the Ministry of Justice, reviewing the authorities on which the
opinion is based. There is nothing wrong in this course so long as the
court examines the cited authorities and adopts the view set out in the
opinion after finding that the latter is in accord with the authorities.
The learned judges indeed did so. I now turn to the substance of Dr.
Rakover's opinion on "coerced sexual relations between spouses," which
has since been published by the Ministry of Justice as Booklet No. 55
in the Series of Studies in Jewish Law. Like the judges in the lower court
I can be brief and turn at once to the many authorities cited.
The starting point is that with regard to maintaining sexual relations,
the duty falls upon the husband according to the Torah (Ex. 21:10): "Her
food, her raiment and her conjugal rights he shall not diminish." (The
duty on the husband to maintain sexual relations is quite apart from the
duty to be fruitful and multiply.) On the other hand there is no provision
either in Scripture or in the Talmud that places a corresponding duty
upon the wife. Her duty emanates from her contractual obligation upon
entering marriage, requiring her to be devoted to her husband. Hence the
conclusion that whilst the woman's duty may be made conditional, it is
otherwise with the man's duty which derives from the Torah. The same
view is propounded in Dr. B. Schereschewsky's Family Law (2nd ed.)
109-110, which also cites the authorities.
457
PART SIX: PENAL LAW
According to Maimonides (M. T. !shut 14:8) one limitation attaches to
the wife's duty: if she pleads that he is "repulsive" to her, the man may
be forced to divorce her since "she is not like a captive (to be compelled)
to have intercourse with one who is hateful to her." Dr. Rakover cites
authorities who disagree with Maimonides that the man may be forced to
divorce his wife. According to Maimonides the wife does not become a
rebellious wife (moredet) unless her refusal to have sexual relations with
her husband is without foundation, for example, because she had set her
eye on another man or because she refuses in order to make her husband
suffer (ibid. 14:9, 11-12). In such cases, the plea "He is repulsive to me" is
of no avail…
The question here is whether a woman is bound to have sexual relations
forcibly. Dr. Rakover cites many authorities (e.g. R. Yosef miTrani, R.
Rafael ibn Shimon, R. Ovadiah Hadayah and R. Shlomo Luria) according
to whom forced sexual relations are forbidden, and even when the woman's
refusal is not justified, she may not be compelled, although the consequence
is likely to be that she will be regarded a moredet or be deprived of
her rights under the marriage. Like the judges in the lower court, I also
will not repeat the detailed treatment of the matter in Dr. Rakover's
opinion, and shall satisfy myself by quoting a number of short passages
from the authorities.
Eruvin IO0b states: "Rami b. Hama, citing R. Assi, ruled that a man is
forbidden to compel his wife to observe a precept." Rabad reinforces this
ruling by quoting a scriptural verse and adds, "Thus rape of one's wife
is forbidden and if he needs to have relations he must first appease his
wife" (quoted in Tur, Orah Hayim 240 and Even haEzer 25). Maimonides
observes, "He should not force himself on her and have intercourse against
her wish" (M. T. /shut 15: 17) and Even haEzer 25:2 states that "he should
not have intercourse with her except by her volition and if she does not
desire it, he should appease her until she does."
In Jggeret Kodesh by leading contemporary rabbis (1968), a note is
published anonymously (written by R. Yaakov Kanivsky) stating as follows:
According to the law of the Torah sexual relations are forbidden when
the woman is not willing and she must be appeased by embraces and
kisses until she is willing, since otherwise it is as if she were thrown to a
lion and ravaged, as explained in Pesahim 49b. It is a criminal wrong
to do anything that causes pain to one's wife even if the intention
is piety and abstinence, since one may not ill-treat one's wife in the
name of piety and use her as a captive maid-servant. When a man has
intercourse with his wife against her will, the children come within the
category of "sinners and rebels" under the law relating to the issue of a
rape victim.
458
OFFENCES
In his summary Dr. Rakover says that a husband may not have sexual
relations with his wife against her will, and a survey of the Talmud shows
that fulfilling marital relations by rape is not permitted and constitutes a
transgression. The rabbinical courts also treat a husband who has sexual
relations by force with great severity. The sanction imposed upon a woman
who refuses might be that she is declared a moredet, that she loses her
entitlement under her ketubah (marriage settlement) and the like, but she
cannot be forced to have sexual relations. Such compulsion is contrary
also to the rule that a man must honour his wife more than himself
(Maimonides, op. cit. 15:19) as well as the rule that the woman was "given
[to her husband] to live but not to suffer pain" (Ketubot 6la) …
During the hearing of this appeal, counsel put in an opinion by Dr.
B. Lifshitz. Dr. Lifshitz states that he does not contest Dr. Rakover's
view that "a husband may not force himself upon his wife and the only
means to be adopted is to declare her a 'moredet' with the consequences
that follow." Dr. Lifshitz also states, and this was urged by counsel, that
refusal by a wife to have sexual relations does not deprive the husband
of his right but only negates the use of force. That is different from
what Dr. Rakover has to say. The latter, it seems to me, accords with the
true state of affairs. Great importance attaches to the difference between
a wife refusing to carry out her other duties, such as to do domestic work,
and her duty to have sexual relations. Regarding the latter, an express
prohibition of the use of force exists, in contrast to the other duties where
compulsion may be used. I shall quote only part of what Rabad has to say
(Ba'alei haNefesh, Sha'ar haKedushah (Ka'apah ed.) 122-23) which was
cited by Dr. Rakover:
Unnatural intercourse is only permissible, I say, when he has no respect
for her and she is reconciled to it by his placations, but if he forces
it on her he is certainly not free of wrongdoing: of him it is said that
"even thoughtlessly it is not a good thing," for the Sages stated, "He sins
even with his feet" …. There are some who say that unnatural intercourse
is permissible since she obtains satisfaction, although forced into it. But
the situation is different when it is against her will since all intercourse
by force is prohibited and is like prostitution.
These remarks of Rabad's are cited as the law in Tur, Even haEzer 25 …
I would add that the Jewish people may congratulate itself on the advanced
and liberal approach of our heritage and the halakhah with its long history.
I have already mentioned the view that intercourse is meant to gladden
and not cause pain. It is the husband's duty to give his wife pleasure. I
would also quote R.M. Meiselman of Yeshiva University of Los Angeles
459
PART SIX: PENAL LAW
in his Jewish Women in Jewish Law, 116 (who also cites a considerable
number of the authorities mentioned by Dr. Rakover).
The fiction of the Judeo-Christian sex ethic has even convinced many
Jews that Judaism shares Christianity's negative attitude towards sex in
general and towards female fulfillment in particular. Nothing could be
more mistaken.
3. Unnatural Relations
Cr.A. 224/63
BEN-AMI v. ATTORNEY-GENERAL
(1964) 18(3) P.D. 225, 231-232
The appellant was charged with unnatural intercourse.
Cohn J.: It is very true that both in Jewish tradition and in common speech
"sodomy" refers only to males, whereas "to know a person unnaturally"
may also apply between man and woman. Jewish tradition has its source
in the Midrash on the verse, "Where are the men that came unto thee this
night; bring them out so that we may know them" (Bereshit Rabbah 50:5
to Gen. 19:5). This is construed as meaning that the men of Sodom
wanted "to know" them in order to lie with them (see Rashi and Ibn
Ezra ad loc.). "Sodomy", however, as used in the Ordinance, is not to be
construed according to Jewish tradition nor according to common speech,
if grounds exist for thinking that the legislature used a technical term
according to its meaning in long-decided law in England. Thus, already in
1716 an English judge doubted whether a man who lay with a woman in
an unnatural manner had committed sodomy or whether that only obtained
as between males: R. v. Wiseman (1716) 92 E.R. 774. These doubts were
raised before Fortescue J., who… was exceeding sorry, that such a gross offence should escape without
any punishment in England; when it is a crime punishable with death
and burning at a stake, all over the world besides.
It being so horrid and great a crime, and that no colour should be
460
OFFENCES
given to such an offence, Justice Fortescue A. wrote to the Earl of
Macclesfield, then Chancellor of Great Britain, concerning this matter;
and his answer was by way of letter, that he wondered at the variety of
opinions; that he had not the least hesitation in agreeing it to be plain
sodomy, that he could not think of one objection, to which he should
be able to give the appearance of an argument; that it is a crime exactly
of the same nature, as well as it is the same action, as if committed
upon a male, the difference of the subject makes it more inexcusable.
Adopting this view, Fortescue J. gave his own opinion:
The unnatural abuse of a woman, seems worse than either that of a man
or a beast; for it seems a more direct affront to the Author of Nature,
and a more insolent expression of contempt of His wisdom, condemning
the provision made by Him, and defying both it and Him.
That the law relating to buggery or sodomy includes unnatural intercourse
with a woman has long been accepted and is mentioned in all the textbooks (see 9 Halsbury's Laws (4th edn), para. 673; Archbold, 31st ed. 1049;
Russel on Crime, 9th ed., vol. I, 651). Sodomy in sec. 152(1) of the
Criminal Code Ordinance must perforce be understood as comprehending
unnatural intercourse with a woman.
I may point out incidentally that ancient Jewish law is totally different from
English law. Not only is unnatural intercourse with a woman not regarded
as being worse than intercourse with a man or an animal but whilst the
latter two acts are treated as serious offences carrying the death penalty
(Lev. 20: 13, 15), the former is not an offence at all. The Talmud contains
express permission for sleeping with one's wife howsoever it pleases one. R.
Yohanan asserted that "a man may do with his wife whatever he pleases.
The situation is similar to that of meat from the abattoir; it may be eaten
salted or roasted or cooked or seethed" (Nedarim 20b). The story is related
of a woman who came before Rebbi and complained "Rebbi, I set a table
before my husband but he overturned it." (Rosh explains that what she
meant was that he used her unnaturally.) Rebbi replied, "My daughter, the
Torah has permitted it" (ibid.). Maimonides laid down the law accordingly
(M. T. /ssurei Bi'ah 21 :9) and following him so did Tur and Bet Yosef (Even
haEzer 25) and Rema (Even haEzer 25:2).
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4. Suicide
C.C.(T.A.) 1593/ 60
SATSHI et al. v. STATE OF ISRAEL et al.
(1960-61) 25 l'.M. 278,281
Kister J.: In many respects the present case is similar to another which went
to appeal (State of Israel v. Hidena dcd. et al. (1960) 14 P.D. 926). The
difference is that the latter case involved a police paymaster who committed
suicide after owing the police and others sums of money, whereas here it
was an army pay-sergeant who committed suicide in similar circumstances.
There the beneficiary of a police life insurance policy was his widow, so
designated by the deceased; here the beneficiaries, again named by the
deceased, were his parents …
According to Jewish law a man may not even cause himself an injury
(M. T. Hovel uMazik 8: 1). Certainly suicide is considered an offence when
committed whilst of sound mind, unless under compulsion, as with King
Saul (M. T. Rotze'ah 2:2; Yoreh De'ah 345). The pecuniary consequences
of the offence are different in Jewish law and in English law, as I pointed
out in Estate of Shlomo dcd. (1957-58) 15 P.M. 179, 186.
5. Physical Injury by Parents and Teachers
1/53
RASSI v. ATTORNEY-GENERAL
(1953) 7 P. D. 790, 792-793, 797-800
The appellant, a Greek Catholic nun, served as supervisor of a Nazareth orphanage
and in 1952 was convicted on two counts of assault, causing injury, failure to record
a death, and burial of a child without a medical certificate. In argument, counsel
for the appellant did not challenge the findings of the learned judge, but submitted
that the appellant had punished the children as a parent might do and that she was
therefore not liable in law. Accordingly the question was whether and to what extent
a teacher, the principal of a school or supervisor in a children's institution may inflict
corporal punishment on the children under his or her care.
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Assaf J.: I agree with the judgment of Cheshin J. and wish only to add
some observations to what he said, based on our own sources. Prov. has
already given general instructions to a father for educating his children:
"He that spareth his rod hateth his son, but he that loveth him chasteneth
him at times" (13:24). "Correct thy son and he shall give thee rest; he shall
give delight to thy soul" (29: 17). "Foolishness is bound up in the heart
of a child but the rod of correction shall drive it far from him" (22:15).
More specific instructions for both father and teacher are to be found in
later sources. Rav, the first of the Talmudic Sages, instructed R. Shmuel
b. Shilat, one of the leading educators of his time: "When you strike
a child, do so with a shoe lace" (Baba Batra 22a), i.e. with a light strap.
And relying thereon, Maimonides lays down that "the teacher should strike
them to frighten them, not in hate or brutally. He may therefore not beat
them with a whip or cane but only with a light strap" (M. T. Talmud
Torah 2:2). These remarks were taken to be the rule and like provision
is made in Yoreh De'ah 245 and in the other authorities. Thus Hai Gaon
writes in his well-known poem, Musar Haskel: "If you have sons and
daughters / Punish them always but with compassion."
One prominent rabbi in Palestine gives us a clear description of what
was customary two centuries ago:
There is a very bad practice of parents taking a child to school and
cautioning the teacher in the child's presence not to beat him. Upon
the child hearing this, he tends not to pay attention to his lessons and
to become more and more wilful. In former times the practice was
otherwise: when the child cried to his parents that the teacher had
beaten him, they would give the child a gift to give to the teacher and
would thank the teacher. The teacher received a suitable gift every time
the child complained of being beaten (R. Moses Hagiz, Tzror haHayim,
Wandsbeck 1728).
Although in the moral and pedagogical literature, and amongst the earlier
and later authorities, one may find much sound comment and good advice
on the relations between father and child and between teacher and child,
practical questions arise infrequently and precedents are scarce ….The few
responsa dealing with the matter may well be cited.
I quote first a responsum of Natronai Gaon of Sura (853-58) (L. Ginsberg,
Geonica, II, 119):
As for the school teachers you mention, who beat the children a great
deal-certainly children only learn by being beaten. The words of R.
Shmuel b. Shilat reflect the law. Hence we usually deal with small
children or even older children who are weak according to R. Shmuel's
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instructions. With healthy children, there is nothing against frequent
punishment. To do so, however, with small and frail children is cruelty.
In such cases we warn the teacher a number of times: if he mends
his ways, well and good; if not, we dismiss him.
Clearly the Gaon is speaking of teachers who beat their pupils frequently
but cause them no injury. And no question arises of the teacher having to
pay compensation under the five categories of damages – injury, pain,
medical expenses, loss of employment and hurt feelings. There are, however,
two responsa of the first half of the eighteenth century that deal with
teachers who inflicted injury on their pupils, and the position taken here
is quite different.
The first and more important of them is by R. Ya'akov Reisher who
served as Rabbi of Metz towards the end of his life, and it is taken from
his Resp. Shevut Yaakov, Part 3, para. 140:
Is a teacher who became angry with a pupil and beat and injured him
liable under the four 'headings' of damages or exempt? Clearly he is free
of liability, as is patent from Makkot 8a: "Just as the hewing of wood is
optional so are all optional acts, excluding a father who strikes his son or
a teacher his pupil". (A person is not obliged to go into exile in a city
of refuge when he kills someone unless the killing is a consequence
of an "optional" act; if, however the killing was a consequence of a
"commandment", e.g. a father striking his son, the teacher striking his
pupil or an agent of the court striking the criminal as punishment
-in such cases, the killer is not bound to go into exile.) There is no
room for a party to plead that this exemption applies to expulsion
and not to liability for damages. Exemption from expulsion is derived
from Scripture…. Although the rule is that a child may only be beaten
with "a shoe lace" but not cruelly, a teacher is not in any event to be
penalized ex post facto for striking a pupil…especially when the child
is very difficult and does not attend to his lessons … .! have, however,
decided that the teacher should pay for good medical care so as to
prevent him from making a practice of it, since it is not fitting for a
scholar to get angry, and too strict a teacher cannot teach well and
anger is the lot of fools.
It appears from this responsum that the teacher was learned and the
pupil was grown up. R. Gershon Coblenz, one of the dayanim Gudges) of
Metz, held as follows (Resp. Kiryat Hannah 22):
With regard to a teacher who in anger struck a young pupil of six or
seven years and broke his leg and sought exemption from liability in
damages .. .in accordance with Makkot 8a.. .in my opinion, he has got
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himself hopelessly involved and should be castigated until he makes
his peace with the injured pupil….There is no difference in this regard
between a teacher and any other person…. The teacher who beats his
pupil excessively is not like one who chastises a pupil, and he is liable
in damages.
One of the outstanding teachers of his generation who wrote specifically
on teaching methods observes:
One piece of profound advice I offer to teachers. They should take
great care not to beat a child on the head or face and not to become
angry …for that is detrimental and far from effective (R. Avraham of
Ettingen, Ma'arekhet Avraham, Fulda 1769).
This advice apparently never reached the appellant and for that reason she
acted as she did.
6. Abortion
C.A. 413/80
A.
V.
B.
(1981) 35(3) P.D. 57, 73, 81, 83, 87, 88, 92
The issue in this appeal was whether the husband has any standing under the law on
the application of his wife for an abortion.
Ben-Ito J.: I have already concurred in setting aside the decision of the
lower court, ordering the appellant…to refrain from having an abortion…
The debate has always centred upon a number of questions which no
one has yet been able to answer unequivocally-what is the secret of life,
when does it begin, from what moment is it properly to be protected and
should its deprivation be regarded as an offence or at least forbidden? At
one extreme, there are those who think that from the moment the embryo
is created as a "being" or "organic fact", which is the beginning of a
human, any injury to it is forbidden. According to Jewish law, destruction
of seed is a prohibited act, a fortiori the "killing" of the embryo: a heathen
(Noahide) who kills an embryo is treated as a murderer (Sanhedrin 57b:
see also M. T. Melakhim 9:4). The dictates of Catholicism also confer
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"life" upon an embryo from the first moment of conception. It would be
a mistake to think that only in modern times has this extreme view been
disputed. Careful study of the opinion of R. Lichtenstein … shows that there
is no consideration canvassed by modern legislatures and courts which
was not raised by the Jewish authorities in earlier times. In the period
of the Gemara, during the first forty days of conception an embryo was
considered "a sac full of water" and if aborted within this period, the
child that followed was the first born for ritual purposes (Bekhorot 47b).
Similarly it was usual to divide pregnancy into periods with regard to
the seriousness of injury to the foetus, periods which were characterised
by criteria still accepted today. Some would adopt a lenient attitude during
the first three months – since in the words of R. Lichtenstein, "murder
is apparently defined as the cutting off of present life and not as frustration
of potential development." There are also the tests of movement or "the
ability of the foetus to live upon coming into the world" (which correspond
to the notions of "quickening" and "viability''). Actual murder is perhaps
confined to the last third of pregnancy, but we should not be disturbed
by the term "murder", since a Jew who kills a foetus is not punished by
the court as a murderer. Already in the period of the Mishnah a foetus
was not considered a complete person or a "soul". "If a woman is in hard
travail, one may cut up the child in her womb and remove it member by
member, because her life comes before its life. If, however, the greater part
has come out, one may not touch it, since one may not reject one life for
another" (M. Oholot 7:6).
Counsel for the husband asked us also to consider his submission,
dismissed by the lower court, that a husband has standing in the deliberations
of the Abortion Committee by virtue of marriage-even if he has no right
to ask for an injunction in a civil process in court. Since we are dealing
with a complex of problems relating to abortion, we will not ignore this
question.
"There are three partners in a person, the Holy One blessed be He,
the father and the mother" (Kiddushin 30b). At all events, no one will
contest the part played by the father in creating the foetus and his duty to
maintain the child, rear him and educate him after he comes into the world.
Hence the idea that the father must be joined in any decision regarding
abortion is attractive at first glance. Undoubtedly, where married parents
and a well-ordered family are involved, it is desirable and acceptable that
the two parents should join in the decision. I would say that it is desirable
not only in respect of the father but also of the mother, since it is a difficult
decision that may often give rise to not inconsiderable hesitations, and it is
easier for a woman to decide with the advice of her partner in life.
Our concern, however, is with those cases in which the father and the
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mother take different views, and the question is that of the rights and
standing of the father in such an event…
R. Lichtenstein in his opinion… defines the task of those who have to
decide the law in so sensitive a matter as the present, and I have not found
any formulation more suitable to define the task of the Abortion Committee
which, though not indeed the decidor of the law, fulfills that function
somewhat. I shall accordingly conclude by quoting what R. Lichtenstein
has to say:
In these areas – where on the one hand the details of the law are not
explicitly elaborated in the Gemara or the early authorities, and on the
other hand the personal situation is not infrequently most complicated
and frustrating – there is room, and in my opinion an obligation, to
adopt a measure of flexibility. The sensitive decision-maker is aware of
the personal situation and equally of the halakhic factors and may
therefore in one case bend his doubts in favour of one party and
in another case in favour of the other party; he may reach a different
balance in evaluating the views of his predecessors, give serious weight
to far-reaching theories here and ignore them there; he may loosen the
restraints where serious family tragedy is perceivable or insist upon the
strict law, as he sees proper, where the pressures to be lenient issue from
irresponsibility and are inherent to a lowered moral standard. This is not
a matter of evasion or partiality. Flexibility comes from the recognition
that halakhic decisions are not and need not be the work of a calculating
machine but the outcome of thought.
Since I have reached the conclusion that the legislature did not intend that
abortion should be dealt with by the courts but by Abortion Committees, I
would recommend that we rely on the Committee for which the observations
of R. Lichtenstein should serve as a guide.
Elon J.: It is decided law rooted in the judgments of this Court that "an
administrative body-even a truly administrative body (not quasi-judicial)
– will not be permitted to prejudice the person, property, calling, status
and the like of a citizen, unless the party affected is given reasonable
opportunity to be heard in his defence against any prospective prejudice.
The scope of this duty and the manner of the opportunity to be accorded will
obviously depend on the concrete circumstances of the matter concerned"
(see per Silberg J. in H.C. 9, 3/58 Berman v. Minister of the Interior (1958)
12 P.D. 1493, 1508). The right to be heard before a decision is made that
may affect a person is already found in Scripture: "Hear the causes between
your brethren and judge righteously between a man and his brother"
(Deut. 1:16), and its roots go back to the earliest times of mankind. It
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began with Adam who was asked who had told him that he was naked;
it continued with Cain who was asked where his brother Abel was in
order to hear what he had to say. How much more so with the ordinary
person. Thus our Sages deduced from "I shall go down and see" that judges
should not decide a case until they have heard and understood (Resp.
Rema 108: see H.C. 290/65 Altagar v. Mayor of Ramat Gan et al. (1966)
20(1) P.D. 29, 39)…
My learned friend has recommended that the apt observations of R.
Lichtenstein should guide the Committee in its deliberations and decision.
I agree wholeheartedly. Indeed, it is for the Committee to find a balance
between "the serious family tragedy" on the one side and the pressures
to be lenient that "issue from irresponsibility and that are inherent in a
lowered moral standard", on the other side. This balance is to be found in
the "flexibility that comes from the recognition that halakhic decisions are
not and need not be the work of a calculating machine but the outcome
of thought." It is, however, accepted that a precondition of such thought
is a full and profound examination of the facts and problems arising in
each instance in its particular circumstances. For this reason one must listen
to the husband and hearken well to what he has to say and what is in his
heart.
7. Mercy Killing
Cr.C.(T.A.) 555/75
STATE OF ISRAEL v. HELLMAN et al.
(1976) J P.M. 134, 135, 138-139
Bental J.: The defendant was brought to trial for causing the death of her
terminally ill son by a gunshot to the head, an offence under sec. 212 of
the Criminal Code Ordinance, 1936. She admitted all the facts with which
she was charged …
The case reminds us that Jewish law, too, views with great severity
the killing of a dying person (Sanhedrin 78a). Any act that hastens the
death of a fatally ill person is strictly forbidden, from a moral perspective.
Maimonides held that "such a killer is exempt from the penalty of death but
only under human law and his wrong against morality is great" (Federbush,
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Mishpat haMelukhah belsrael, 224). The Sages were not indifferent to the
suffering of a person about to die, and they even required that he be given
wine to drink to numb his senses (Sanhedrin 43a). Nevertheless the distance
between this and bringing about the death of one who is incurably ill is
very great.
Let Maimonides' warning against relying on medical opinion about the
chances of living be recalled. Such opinion may well be mistaken and it is
interesting that even today fear of error is very real, notwithstanding the
advances of medical science.
8. Autopsies
H. C. 66/81
INSPECTOR GENERAL OF THE POLICE v. SEIZER et al.
(1981) 35(4) P.D. 337,348,353
The police applied to the first respondent, a Ramallah Magistrate, requesting that he
order the autopsy of the mother of the second respondent, suspecting that her death was
caused by the commission ofan offence. The second respondent opposed the application
on the ground that the evidence in the hands of the police did not necessarily lead to the
conclusion that the death had been so caused. The first respondent refused to permit
an autopsy. The appeal centred on the function of the investigating judge and the
considerations he must take into account.
Barak J.: It is noteworthy that counsel for the petitioner drew our attention
to a book by R. Waldenberg, Resp. Tzitz Eliezer, Part IV, 14, dealing with
the attitude of Jewish law to autopsies for establishing cause of death …
"The dissection of corpses for pathological purposes when the cause of
death is unknown, where the matter may involve criminal charges, is
permissible." Thus religious reasons also exist not to oppose an autopsy in
the present case.
Tirkel J.: This is not the place to dwell on the difficult questions of whether
the body of a person constitutes property, who has the right of possession or
other rights thereto and the like …. Neither is the age-old question of whether
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protection of a corpse is a matter of respect for the dead person or for the
living (Sanhedrin 46b-47) of concern here. To my mind, protection of
a dead person and his honour is like protection of a live person and his
honour, and in this, too, a free and enlightened society is distinguished
from an uncivilised or oppressive society, as Cohn J. said in H. C. 355,
370, 373, 391/79 Kata/an et al. v. Prisons Services et al. (1980) P.D. 34(3)
294. We are concerned here with one of the basic rights of man; just as
we do not deprive him of his freedom, so also we do not prejudice his
person or property or assault his honour without clear, express provision
of the law. I would add that a restrictive construction be given, that we do
not prejudice his person or honour even when he has departed this life.
9. Deceit and Fraud
c,. A. 224 / 57
LIEBERMAN v. ATTORNEY-GENERAL
(1958) 12 P.D. 665, 667-669
Silberg J.: In the judgment under appeal, the learned judge… says that in
charging the appellant (with obtaining execution of a security by false
pretences) the prosecution had to prove the following four elements – (i)
false pretences regarding a matter of fact, (ii) defendant's knowledge of the
inaccuracy of his statement, (iii) the obtaining of money or money's worth
by means of such statement, and (iv) the intent to defraud. I harbour no
doubt that the existence of these four elements was in fact proved …
"Intent to defraud": Here I wish to pause a moment and make one
linguistic observation, since it involves a difference in law and error is
induced or may be induced by confusion of translation that prevails on
the subject.
There are two kinds of deception that serve as subject matter for the
Criminal Code Ordinance – (i) ordinary deception and (ii) deception that
leads the deceived person to act to his detriment…
The first kind is called, in English, "deceiving" and the second "defrauding"
[Silberg J_ goes on to discuss here the corresponding terms in Hebrew
and the translations thereof in various sections of the Ordinance]. No
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wonder therefore in the present instance there was "no single and uniform
language" used by the prosecution and the judges. One employed one
phrase (intention to deceive) and the other another (intention to cheat)
when both meant the element of "intent to defraud" in sec. 302 of the
Ordinance.
It seems to me that in order to remove all doubt one should indicate the
first kind by the simple word "to mislead" and the second by "to cheat".
The basis of "intent to defraud", as we have seen, is deliberate inflation
of an error, that induces the victim to act against his interest. Cheating
– financial cheating – is already known in Jewish law from Scriptural
times: "If thou sell aught unto thy neighbour or buy of thy neighbour's
hand, ye shall not wrong (cheat) one another" (Lev. 24:14). The distinctive
character of cheating is that as a result, the cheater derives some benefit
at the expense of the cheated (see Baba Metzia 49b-51a; 56b-58a; M.T.
Mekhirah 12-14; Hoshen Mishpat 227-228). A common element, very
close indeed, exists between the foreign and Hebrew terms, and it is right
and proper to merge them. On the other hand, the word "to deceive" does
not accord unambiguously either with the first or the second kind. The
word, however, also indicates cheating (see M. T loc. cit. 18: I; Hoshen
Mishpat 228:6; cf. the deceivers of whom R. Elazar speaks: Ketubot 65a)
but at times serves as a term of evasion by lies of a past responsibility
(cf. the "sharpers of Pumbedita" Baba Batra 46a). Accordingly I think it
would be better to translate the term "to deceive" by the Hebrew word
which means "to mislead" and the term "to defraud" by the Hebrew "to
cheat".
IO. Bribery
C.A. 71/83
SHARON v. STATE OF ISRAEL
(1984) 38(2) P.D. 757, 771-773
Levin J.: It seems to us that it would be both useful and instructive to
set out… the views of Jewish tradition and Jewish law on the subject of
bribery. The approach of that tradition and that law to bribery, as a matter
of values, is extremely negative. Already in Scripture we can see how
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negatively our forefathers regarded the matter and completely condemned
it. "Thou shalt not wrest judgment, thou shalt not respect persons; neither
shalt thou take a bribe, for a bribe doth blind the eyes of the wise and
pervert the words of the righteous" (Deut. 16: 19). Again, "And thou shalt
not take a bribe, for a bribe blindeth them that have sight and perverteth the
words of the righteous" (Ex. 23:8). The bold expressions in this connection
used in Ketubot 105b may rightly be cited here in brief.
Our Rabbis taught: 'And thou shalt take no bribe'; there was no need
to speak of a gift of money, for even a bribe of words is also forbidden,
since Scripture does not say 'And thou shalt take no gain.'
FurthermoreWhat is to be understood by 'a bribe of words'? As in the case of Shmuel
who was once crossing a bridge when someone came and offered his
hand (to help him across). 'Who are you?' asked Shmuel, and the other
replied, 'I have a lawsuit.' Thereupon Shmuel said, 'I am disqualified
from acting as your judge.'
Even when the benefit is merely a courteous service it is enough to give
rise to a defect.
AgainRav stated: 'What is the reason for [a judge being prohibited from
taking] a gift?' Because as soon as a man receives a gift from another
he becomes well-disposed towards him and tends to treat him like his
own person-and no man sees himself in the wrong (ibid.). (See also
Mekhilta (ed. Horowitz) Mishpatim 20.)
The moment anyone takes a bribe from another he loses his independence
towards the latter and no longer possesses freedom of decision and the
capacity of independent determination of a matter.
This prohibition that is so stringent in our tradition is not confined to
judges but affects all who engage in public work, who must act uprightly
and faithfully and whose decisions must be immaculate. "Not only is the
judge forbidden to accept a bribe but also all who are appointed to deal
with public affairs, even though their decisions do not have the force
of law; they may not bend matters out of love or hate, let alone receipt
of a bribe."
Thus our Sages decided and thus was their thinking regarding bribery
in general and thus also is the case with what we call election bribery. R.
Moses Sofer at the turn of the nineteenth century ruled that if there are valid
witnesses to attest that during the election of a community rabbi, some of
those who constituted the electoral body received a bribe, the appointment
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of the rabbi in question is void and new elections must be held. R. Sofer
went on to prescribe that "if there are witnesses that the rabbi himself said
that they be given a bribe, he is debarred from being a rabbi altogether
until he truly repents of it." As for those who accepted the bribes, the
opinion given is that they also may perhaps be debarred from all public
appointment; at least they may no longer participate in the new election
of the community rabbi, even when they have returned the bribe they
received, have done penitence and have undertaken by oath not to do so
again in the future. The reason for that is that they have already become
well-disposed towards him and cannot revert, and they remain forever
interested parties (Resp. Hatam Sofer, Hoshen Mishpat 160. See also
Resp. Minhat Eliezer 1:6. For further precedents, see E. Schochetmann,
Ma'aseh Haba ba'Averah (Jerusalem 1981) 232).
See: Av. ATTORNEY-GENERAL. Part 3, Social and Administrative Regulation, p. 222.
11. Invitees and Trespassers
See: ROTENSTREICH v. ATTORNEY-GENERAL, Pan 7, Torts, p. 554.
12. Desecration of Tombstones
Cr.A. 176/71
BARUKH et al. v. STATE OF ISRAEL
(1972) 26(2) P.D. 667, 669
The appellants, directors of a Rurial Society. were charged with the offence, under sec.
148 of the Criminal Code Ordinance, of trespassing on a burial place with the intent
to wound the feelings of a person who had erected a tombstone over his mother's
grave without paying the required fee, which he considered excessive. They were also
charged under sec. 326 with unlawfully damaging property by having the tombstone
removed.
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PART SIX: PENAL LAW
Agranat P.: I am strengthened in my view already at this stage since I
find good reason in the outlook of Cohen J. that whilst sec. 148 was
enacted particularly to punish various acts in a burial place that wound
the feelings of people and insult the deceased, consideration of sec. 326 has
led in two courts and also in this Court to a pointless debate over the
fine question of whether a tombstone is "property", which is an element
in the offence. This is due to the submission by counsel for the appellants
(which found favour with the learned magistrate) that under Jewish law,
"no benefit may be derived from a built grave" ( Yoreh De'ah, 364: 1;
Rema ad foe.: "Some prohibit sitting on the stone placed over a grave as
a tombstone… but others disagree"; see also Turei Zahav: "Anything done
for the purpose of the dead person and out of respect for him may not
be enjoyed and therefore a broken tombstone may not be sold"; but cf.
Pithei Teshuvah ad foe.; Resp. Hatam Sofer, Yoreh De'ah 335). For
myself, I do not find any inconsistency between this rule-if it can indeed
assist in interpreting the term "property" in the above statutory provision
– and the view that relatives of the deceased have at least some interest
that others should not destroy the tombstone, and they are entitled to the
protection of the law against injury to that interest, i.e. anything which
does a wrong to them and to the respect for the deceased. In the U.S.A.
the law has been decided in this spirit.
13. Theft
See; TREIBISH
et al
v. ATTORNEY-GENERAL.
p. 705.
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14. Extortion
C.A. 719/78
ILIT LTD. et al. v. ELKO LTD.
(1980) 34(4) P.D. 679, 68H87
The appellants had unsuccessfully asked Jor a declaration to set aside part of a
memorandum made between them and the respondent, regarding limitation of relief in
the event of arbitration.
Shamgar J.: The cause of action of extortion as defined in sec. 18 (of the
Contracts (General Part) Law, 1972) comprises a number of cumulative
elements: (i) a contractual relationship, (ii) taking advantage of distress,
mental or physical weakness or inexperience, (iii) with the result that the
terms of the contract are unreasonably less favorable than usual. The
section therefore lays down that a causal connection must exist between
the contractual relationship and the exploitation of the distress; that is, the
cause of action arises only if the contract would not have come into being
but for the exploitation of the distress, weakness or inexperience.
Elon J.: The term "distress" is a well-known and common Hebrew term,
found in most of the sources. The learned judge construed it in accordance
with a long series of quotations from the Prophets and Hagiographa
(see e.g. Zeph. 1:15; Ps. 107:6) and from the writings of the Sages
down to modem times, as cited in the Ben Yehudah and Even-Shoshan
dictionaries….I favour the conclusion at which he arrived from these
quotations that in general, "distress" signifies "a state of stringency and
decline and not merely a temporary or passing difficulty of one whose
creditors come to him at some time to claim what is due to them". For this
reason no question of distress and its exploitation arises in the present case.
It is of the nature of concepts such as "distress" and the like, that even
after they have been defined they are always very flexible and it is difficult
to establish precisely what they encompass …. Hence it is proper to be
assisted by an understanding both of the concepts found in the section in
connection with "distress"… and the general object of the section. For the
present purpose we may reach the conclusion inter alia that the general
object may be inferred from the sub-title of the section, "Extortion". This
idea is a new thing in our legal system, penal and civil, but it may be
found in the stores of the Hebrew language and the sources of Jewish
475
PART SIX: PENAL LAW
law. Extortion was made a criminal offence in 1963 as an entire novelty
(see 37 Divrei haKnesset 2593; 34 ibid. 1943-49). We may note incidentally
that the innovation was in contrast to English criminal law, whereas a
similar provision appears in this or other shape in the European legal
systems. The elements required for constituting "extortion"-now appearing
in sec. 431 of the Penal Law, 1977 – are very similar to those in sec.
18 of the Contracts Law, which enables rescission of contract by the
extortee …. This is not the place to enlarge on the meaning of the idea in
the sources of Jewish law, but I may allude briefly to a number of matters.
The ordinary and frequent use of the idea of extortion in Scripture
and Talmudic literature is in connection with the withholding of wages
and delay in their payment and the like. This is a manifest example of
extortion based, as it is, on taking advantage of the distress of the worker
without means, his weakness and inexperience. "Thou shalt not oppress
a hired worker that is poor and needy, whether he be of thy brethren
or of thy strangers that are in thy land within thy gates. On the same
day thou shalt give him his hire, neither shall the sun go down upon it,
for he is poor and setteth his heart upon it, lest he cry against thee
unto the Lord and it be a sin in thee" (Deut. 24:14-15). Many other
verses that simply mention extortion are interpreted by the Sages to refer
to the withholding of wages from the worker (e.g. Lev. 5:21): "If any
one sin … and deal falsely with his neighbour in a matter of deposit or
pledge or robbery or has oppressed his neighbour." (See Rashi ad Joe.)
So also Lev. 5:23 and 19: 13 – "Thou shalt not oppress thy neighbour,
nor rob him; the wages of a hired servant shall not abide with thee all night
until the morning." See further Baba Metzia llla; M.T. Sekhirut 11:2. In
the words of the prophets, the idea became descriptive of those who take
advantage of the weak members of society: "And I will come near to you to
judgment; and I shall be a swift witness against.. ..falseswearers and against
those that oppress the hireling in his wages, the widow and the fatherless,
and that turn aside the stranger from his right, and fear not Me, saith
the Lord of Hosts" (Mal. 3:5; see also Sukkah 29b). Frequently the term
"extortion" expresses the taking advantage of the distress of the poor, the
widow and the orphan. (Prov. 14:31; 22:16; 28:30; Amos 4:l; Jer. 7:6;
Zech. 7: IO) or one mode of deceit ("As for the trafficker, the balances of
deceit are in his hand" (Hos. 12:8).
Talmudic halakhah extended the meaning of the term. A lengthy
discussion occurs on the question, "Who is an oppressor [extortioner]
and who a robber?" Of the different views expressed, it is enough to quote
that of R. Hisda – " 'Go and come again, go and come again,' (based
on the verse of Prov. 3:28: "Say not unto thy neighbour 'Go and come
again and tomorrow I shall give,' when thou hast it by thee.') that is
476
OFFENCES
oppression; 'You have indeed a charge upon me, but I will not pay it'
-that is robbery" (Baba Metzia 111 a; some of the early authorities are of
the view that the discussion revolves round the question of withholding
wages-see Novellae Ritba ad foe.).
Maimonides sums up the distinction as follows (M. T. Gezelah
veAvedah I:3-4):
What is robbery? The forceful taking of money from another, such as
when one seizes movables or enters into another's domain against the
wishes of the owner and takes away something… or when one enters the
field of another and consumes the produce and the like…
What is extortion? The holding back and non-return by force where
money was given ·to one by the owner willingly and the latter now
claims it, such as a loan or hire which cannot be extracted because of
the other's muteness …
These two rules are also given as the law in Tur and Shulhan Arukh,
Hoshen Mishpat (359:8 and 359:7-8, respectively). It is noteworthy that
both these Codes go on at once to deal with transactions made under
compulsion. "It is forbidden to compel another to sell something even if
money is offered, although robbery is not Scripturally forbidden but only
Rabbinically." In similar fashion "duress" is provided for in sec. 17 of the
Contracts Law.
15. Defamation
See: FREEDMAN v. SEGAL. Part 7, Torts, p. 563.
See:
HAHAYIM PUBLICATIONS v. BROADCASTING AUTHORITY
et al, Part 7, Torts, p. 563.
16. Publication of Suspicions
See:
BEN-GU.RION
v.
APPLEBAUM
et al., Part 2, General Principles, p. 131.
477
PART SIX: PENAL LAW
17. False Evidence
Cr.A. 445/7S
DEKUSSIAN v. STATE OF ISRAEL
(1977) Jl(I) P.D. 294, 29S. 296, 297-298
In a declaration submitted to the Custodian of Absentee Property the appellant stated
that he was the owner of a house in Abu Tor in Jerusalem (an area which until the
Six Day War was no-man's land) and that he had never mortgaged it. The appellant
was permitted to take possession of the house. He was subsequently charged and
convicted of knowingly making a false declaration.
Cohn J.: It emerges that the appellant had in fact mortgaged the house … and
he no longer disputes that he signed the mortgage deed …. Moreover, not
having duly paid off the mortgage, execution proceedings had been taken
under Jordanian law … and as a result the house was sold by public auction
to the mortgagee and registered in the latter's name in the Jordanian Land
Registry…
At all events, the appellant lied in declaring that he had never mortgaged
the house. He signed the mortgage deed himself, and whether or not the
deed needed to be registered or was properly registered, his declaration
as above is inconsistent with his obligation to mortgage the house. Even
if it be said that the mortgage does not attach without registration,
the deponent should have stated that he had signed a mortgage and
undertaken to charge the house, although the mortgage was not completed
by registration, or that he did not know whether the mortgage was so
completed …
The appellant in Cr.A. 187/57 Kali v. Attorney- General (1958) 12
P.D. 1009 was convicted under sec. 113 of the Criminal Code Ordinance,
1936, for giving "a certificate which was, to his knowledge, false in any
material particular." Here the appellant was convicted under sec. 120 of
"knowingly" making a "false declaration". Assuming that in both these
cases it subsequently turned out that in fact the certificate or declaration
was not false (objectively speaking), the criminal responsibility of the
person who gave the certificate or made the declaration still subsists since
to his knowledge it was false when given or made.
The learned judge found support in the law regarding a woman who
vowed not to do a particular thing and then intentionally, in breach of
her vow, did the thing, without knowing that her husband had already
478
OFFENCES
released her from her vow by virtue of his marital authority. In that
event, while she is exempt, since she only intended to do a prohibited
act, which in fact was permitted when effected (Nazir 23a; Kiddushin 81 b;
M.T. Nedarim 12:18), she may still be punished for criminal intent under
rabbinical rule. I fear that the analogy does not hold. There, when the woman
acted as she did, she was already permitted to do so; here the deponent did
something that was prohibited when he made his declaration and declared
something he did not believe to be true.
In Cr.A. 20/61 Saharv. Attorney-Genera/(1961) 15 P.D. 561,579 Silberg
J. quotes a beraita that teaches us that in Jewish law too, every witness
who attests not from his personal knowledge of the truth of a matter is
considered a false witness (Shevuot 31a). Maimonides (M.T Edut 17:5)
puts it as follows:
A student whose teacher says to him, "You know that were I given all
the money in the world, I would not lie. A maneh is owing to me from
X but I have only one witness. Join with him in giving evidence." If he
did so, the student would be a false witness.
The evidence here might well be objectively true: the teacher is indeed
owed money by X; but the student's evidence is false, even if he believed
that the money was really owing, since he attested that he knew personally,
not that he believed that it was so because his teacher never lied. Hoshen
Mishpat 32:2 also rules that witnesses who are suborned to testify that a
debt is owing are false witnesses, although the debt exists.
The rule is that a person who knowingly makes a false declaration,
within the meaning of sec. 120, is a person who makes a declaration
which at the time is to his knowledge false. It is immaterial that later
it turns out that in his ignorance the declaration was not false. That is
the definition of "deceit" in sec. I of the Penal Law Amendment (Deceit,
Blackmail and Extortion) Law, 1963: a factual assertion must be either that
the person making it knew at the time that it was untrue or that he did
not believe it to be true. Objective truth is not the decisive factor but
rather knowledge or belief of the truth.
See: ROITMAN V. UNITED MIZRAHI BANK LTD., Part 7, Torts, p. 569.
479
PART SIX: PENAL LAW
18. Failing to Take Reasonable Means to Prevent Wrongdoing
Cr.A. 496/73
A. v. STATE OF ISRAEL
( 1974) 28(1) f'.D. 714, 7 16, 719
Cohn J.: Sec. 33 of the Criminal Code Ordinance, 1936, provides that
a "person who, knowing that another designs to commit a felony, fails
to use all reasonable means to prevent the commission or completion
of the felony, is guilty of a misdemeanor, punishable with two years'
imprisonment." The question facing us in this appeal is whether the felony
must be a specific act or may be a continuing offence not consisting of any
specific act, such as membership and general participation in an unlawful
association.
The few necessary facts are no longer in dispute. The appellant, a member
of a minority group, had contact with one who was active in a terrorist
organisation. On several occasions the latter tried to recruit the appellant
into the organisation and its activities but the appellant always refused
and contact ceased. It was only because the person in question left the
country that the appellant got to know that he was an active member
of the organisation and that his activities in particular and those of the
organisation in general were not confined to recruiting adherents but
extended to terrorist acts that were felonies; moreover, membership in the
organisation as such was itself a felony (Defence (Emergency) Regulations,
1945, reg. 85 (a)).
The appellant was charged on these facts … with the very serious felonies
of contact with a foreign agent (under sec. 24, as amended, of the Penal Law
Revision (State Security) Law, 1957) and of covering-up security offences
(under sec. 5 of that Law). The District Court acquitted the appellant of
both charges but on the oral application of State Counsel convicted him
of an offence under sec. 33 of the Criminal Code Ordinance, 1936, and
sentenced him to the maximum term …
Whatever the position under current English law, with the introduction
of the Criminal Code Ordinance in Palestine, concealment of knowledge
of a past felony ceased to be an offence and the offence of concealing
a future felony was introduced. If the Israeli legislature saw fit to retain
sec. 33 (see sec. 5(b) of the Penal Law Revision (State Security) Law of
1957), perhaps it meant, even if only unintentionally, to uphold observance
of a Scriptural commandment: "Thou shalt not stand by the blood of
480
OFFENCES
thy brother" (Lev. 19:19). Among the examples given by the Talmudic
Sages of the application of this rule is the case where bandits attack your
neighbour, and you have an obligation to rescue him (Sanhedrin 73a; M. T.
Rotze'ah 1:14). Under Jewish law also, a person must take reasonable steps
to avoid a felony, since even when a life is at stake, one may not save
the "pursued" by killing the "pursuer" unless no other way is available
(M. T. Zoe. cit. 13).
Two things emerge from the foregoing. First, the duty to act to prevent
a felony exists only when the danger of the felony is immediate and real.
Secondly, sec. 33 is to be construed restrictively and cautiously so as not
to give rise to a duty to inform, which reeks of totalitarianism. Where
an immediate and real danger to the security of the State exists, for
example when contact is made with an enemy agent for passing on secret
information (Cr.A. 517/66 Abu Kadra v. Attorney-General (1967) 21(1)
P.D. 246, 251) or when there is immediate and real danger to the life of
an individual, no fastidiousness or nobility of mind can obviate the need
for an act of rescue …
Here as well, had the appellant known that the people he met or the
organisation on behalf of which they approached him were "planning" to
carry out an act of terrorism which might endanger the life of others or the
security of the State or public safety, he would have been bound to take
reasonable preventative steps. The same applies according to the terms
of sec. 33 if he knew that an act of terror was about to be committed,
which might only endanger property, providing that he knew the act was
a felony (or a very serious offence, see Cr.A. 517/66 above).
19. Contempt of Court
See: ATTORNEY-GENERAL v. SHEINBERGER, Part 4, Regulation of the Courts, p. 289.
481
Chapter Seven
PUNISHMENT
A. General
I. Punishable Persons
Cr.A. 222/60
ATTORNEY-GENERAL v. A. and B.
(1960) 14 P.D. 2S1!, 2S1S-2S16, 2518-2519
This appeal involved the criminal responsibility of the mentally ill.
Silberg J.: The phrase "is not liable to punishment" in sec. 6(b) of the
Treatment of Mentally Sick Persons Law, 1955, necessarily means that
the person involved does not bear criminal responsibility, by virtue of
either sec. 14 or sec. 11(1) of the Criminal Code Ordinance…. Manifestly,
the mental illness must exist when the offence was committed. That is
very logical because in the event of hospitalisation under sec. 6(b), the
Attorney-General cannot start criminal proceedings after the defendant
has recovered, since from the outset he was free from responsibility for the
act he had committed.
The everyday use of the phrase "is not liable to punishment" and every like
phrase requires this construction. The Hebrew "ben" or the corresponding
Aramaic "bar", when associated with some abstract noun always indicates
potentiality or capacity. There are abundant examples, both negative and
positive. [Silberg J. went on to quote from Sotah 26b; Baba Metzia IOb
and 96a; Makkot Sa; Niddah 13a; and Sanhedrin 88b to illustrate the
point.] The common denominator of the terms used is that they indicate
the presence or absence of some quality, feature, potential or capacity either
482
OFFENCES
thy brother" (Lev. 19: 19). Among the examples given by the Talmudic
Sages of the application of this rule is the case where bandits attack your
neighbour, and you have an obligation to rescue him (Sanhedrin 73a; M. T.
Rotze'ah 1:14). Under Jewish law also, a person must take reasonable steps
to avoid a felony, since even when a life is at stake, one may not save
the "pursued" by killing the "pursuer" unless no other way is available
(M. T Joe. cit. 13).
Two things emerge from the foregoing. First, the duty to act to prevent
a felony exists only when the danger of the felony is immediate and real.
Secondly, sec. 33 is to be construed restrictively and cautiously so as not
to give rise to a duty to inform, which reeks of totalitarianism. Where
an immediate and real danger to the security of the State exists, for
example when contact is made with an enemy agent for passing on secret
information (Cr.A. 517/66 Abu Kadra v. Attorney-General (1967) 21(1)
P.D. 246, 251) or when there is immediate and real danger to the life of
an individual, no fastidiousness or nobility of mind can obviate the need
for an act of rescue …
Here as well, had the appellant known that the people he met or the
organisation on behalf of which they approached him were "planning" to
carry out an act of terrorism which might endanger the life of others or the
security of the State or public safety, he would have been bound to take
reasonable preventative steps. The same applies according to the terms
of sec. 33 if he knew that an act of terror was about to be committed,
which might only endanger property, providing that he knew the act was
a felony (or a very serious offence, see Cr.A. 517/66 above).
19. Contempt of Court
See: ATTORNEY-GENERAL v.
SHEINBERGER.
Part 4, Regulation of the Courts, p. 289.
481
Chapter Seven
PUNISHMENT
A. General
I. Punishable Persons
Cr.A. 222/60
ATTORNEY-GENERAL v. A. and B.
(1960) 14 P.D. 251!, 2515-2516, 2518-2519
This appeal involved the criminal responsibility of the mentally ill.
Silberg J.: The phrase "is not liable to punishment" in sec. 6(b) of the
Treatment of Mentally Sick Persons Law, 1955, necessarily means that
the person involved does not bear criminal responsibility, by virtue of
either sec. 14 or sec. I 1(1) of the Criminal Code Ordinance …. Manifestly,
the mental illness must exist when the offence was committed. That is
very logical because in the event of hospitalisation under sec. 6(b), the
Attorney-General cannot start criminal proceedings after the defendant
has recovered, since from the outset he was free from responsibility for the
act he had committed.
The everyday use of the phrase "is not liable to punishment" and every like
phrase requires this construction. The Hebrew "hen" or the corresponding
Aramaic "bar", when associated with some abstract noun always indicates
potentiality or capacity. There are abundant examples, both negative and
positive. [Silberg J. went on to quote from Sotah 26b; Baba Metzia !Ob
and 96a; Makkot 5a; Niddah I 3a; and Sanhedrin 88b to illustrate the
point.] The common denominator of the terms used is that they indicate
the presence or absence of some quality, feature, potential or capacity either
482
PUNISHMENT
in a negative or a positive manner. "Bar tashlumim (payments)" is one
whom the court orders to make payment; "bar mitzvah (commandment)"
is not one who performs the Commandments but one capable, either by
being of age or a Jew, of doing so; "ben olam haba (the world to come)"
is one who is ready to depart this life…
In the present context as well, a person who "is not liable to punishment"
(eno bar onshin) under sec. 6(b) is one who as a result of mental illness, the
characteristic of which is the absence of understanding and intelligence, is
not "competent" to have the statutory penalty applied to him: i.e. he does
not bear criminal responsibility.
Cohn J.: After considering the matter… and reading the instructive judgment
of Silberg J., I have also reached the conclusion that there is indeed
nothing in sec. 6 empowering the court to make a hospitalisation order
for a mentally ill person who has been convicted, that is, found criminally
responsible notwithstanding his illness. I first thought of construing "is
not liable to punishment" as not fit to be punished, since even if a person's
illness is not enough to lead to the consequences described in sec. 14 of
the Criminal Code Ordinance or to negate the criminal intention of which
sec. 11 speaks, a mentally ill person in any case needs to be treated and is
not fit to be punished. It now appears to me that "punishable" does not
carry this broad interpretation.
The term is to be found in Jewish legal literature in connection with
a minor: a lad between twelve and thirteen years of age may make an
effective vow and take an effective oath, but he is not punished if he breaks
his vow or oath (Tur, Yoreh De'ah 233). Bet Yosef observes that "this is
obvious since he is not punishable." The Talmud also uses this expression
in connection with the prohibition of polling the head and shaving the
chin: one who is subject to the second prohibition is subject equally
to the first; a woman to whom shaving the chin does not apply does
not come within the prohibition of polling. The Gemara tries to draw
an analogy between one who does the polling and one who is polled;
where the latter has transgressed by allowing himself to be polled, the
former is also in transgression; where the latter is not in transgression, the
former goes free, but, "since a minor is not punishable… he who does the
polling to a minor is also not guilty" (Nazir 27b).
A nice distinction is also made by the Talmud between being "punishable"
and coming "within the category of being punishable." Some are not
punishable, such as minors, but may become punishable on reaching
maturity; others are not punishable and will never come within the category
of being punishable, such as a non-Jew (Temurah 2b).
It follows that whoever is not liable to be punished does not bear criminal
483
PART SIX: PENAL LAW
responsibility. Only of one who does not bear criminal responsibility can it
be said that he is not liable to punishment. (Moreover, although a minor
is not liable to punishment and does not bear criminal responsibility,
the court ought to inflict corporal punishment according to his bodily
strength, for instance for theft, so that he does not become accustomed to
committing a criminal act, as Maimonides puts it in M. T. Genevah 9: IO;
that is to say, the punishment a minor is given in chastisement does not
render him one who is "liable to punishment".)
2. Judicial Considerations
Cr.A . 212/79
A. v. STATE OF ISRAEL
(1980) 34{2) P.D. 421, 425426, 428
Elon J.: Appellant's counsel asked us to be lenient in punishing the appellant
and expressed fears that the public storm that had arisen during the search
for the appellant and when he was caught and brought to trial might
influence the court to impose a very long term of imprisonment such as
had never been imposed for rape …
It is superfluous to point out that the District Court was right in
placing at the forefront of its considerations the need to ensure that the
appellant will not repeat his wrongdoings, a need which derives from the
duty to protect public tranquility and safety. The purposes and modes of
punishment are many, but with grievous acts and great public dangers, the
court does not fulfill its duty merely by ordering punishment that accords
with the seriousness of the offence or the deterrence of the criminal himself
or of other criminals, potential or actual: deterrence is not enough. The
court must as far as possible assure that the appellant will not repeat his
felonies and for this purpose must isolate him from free society. Reform
of the criminal and his rehabilitation, which occupy a considerable place
in penology, must also necessarily yield in circumstances as serious as
the present, when they conflict with concern for public tranquility and
safety. In such circumstances, the duty of the court towards the public as
a whole, that a dangerous criminal should not circulate freely and endanger
public welfare, is paramount over its duty towards one individual, the
484
PUNISHMENT
criminal….Maimonides sets out this basic element of penology, after he
lays down the extensive powers of punishment entrusted to the judge:
All these things depend on what the judge deems proper and upon
the exigencies of the hour. He must act always in the name of heaven
and may not treat human beings lightly…. He should be careful not to
undermine their self-respect but only to serve the honour of heaven
(M. T. Sanhedrin 24: 10)…
Where, however, there is reasonable fear that concern for respect of the
criminal may undermine respect of any woman, the duty to safeguard her
honour is to be preferred to the personal honour of the criminal and the
latter must yield, even if only temporarily.
As I have said, apart from the offence of murder, where a life has been
taken, the maximum term of imprisonment under Israeli criminal law is
twenty years, and is called life imprisonment. That is as it should be. Denial
of a person's freedom by incarcerating him beyond what is reasonable is
on the one hand less and less in accord with the object of punishment
acceptable in our society and on the other hand, it increasingly oppresses
and lowers a man's self-respect which we are all commanded to uphold.
When a term of imprisonment reaches the pinnacle of twenty years, the
entire world of the criminal has almost been taken from him. A term
in excess of twenty years does not, it seems to me, serve any acceptable
penal purpose except in rare and extraordinary instances. It denies the
criminal almost all possibility of returning to and functioning in society after
serving his sentence. Hence, when a court is about to impose a term longer
than the excessive maximum fixed by law, as when different offences are
being tried together, we must explain and justify such a sentence, whether
indeed it is entailed by the nature of the criminal acts, the character of
the criminal or the requirements of public security, and whether it is not
affected unknowingly and indirectly by public sentiment. Rashba at the
turn of the fourteenth century wrote illuminatingly:
Moderation, consensus and consultation are necessary … for all that the
act is serious, greater care and removal of angry feelings are necessary.
The judge must fear, himself, that his zealousness for the Divine will lead
him to close his eyes to the right and proper course. When, therefore,
feelings of revenge rear their head he must not be overwhelmed but must
moderate himself and be lenient in the manner of our ancients (Resp.
Rashba, Part 5, 238; see also Bahamotzky v. State of Israel, below at
page 486).
485
PART SIX: PENAL LAW
3. Plea Bargaining
Cr.A. 5J2/71
BAHAMOTZKY v. STATE OF ISRAEL
(1972) 26(1 ) P.D. 54), 554-555, 556-557
This appeal turned on the effect of plea-bargaining and an admission made in the
course thereof.
Kister J.: I concur in the conclusion arrived at by my friend Cohn J.
and generally with his reasons. I wish, however, to add a number of
observations.
I find it difficult to define agreements entered into between defendants
and prosecution as accepted practice in this country. I also find it difficult
to accept the institution of the "State's witness" as a binding usage. For
practical utilitarian reasons, however, we cannot abrogate entirely the
usages in this area, though they are imperfect in point of justice and
morality. We have not yet reached the era when "sin has ceased … and the
wicked no longer exist." We cannot prevent crime without recourse to
the legislature, judge and policeman. According to the Metamorphoses of
the Roman poet Ovid, justice and equity prevailed without need of the
law or of judges only in the golden age of the past, an age which has
long departed from the earth. In the reality of today, the institutions of
the State's witness and of plea-bargaining have blossomed. We no longer
have an ideal means of battling crime, without recourse to the penalties
common today, or a better way of locating wrongdoers and bringing them
to justice than by the laws of evidence that now obtain.
Although the modern state does not spare effort or funds to raise the
cultural, moral and even economic standards of its citizens, it has so far
been unsuccessful in curbing crime. Furthermore, even when an offence
has been committed, the state is prepared, under modern penal policy, to
forego imposing a penalty if the person will mend his ways (suspended
sentences), and even to assist him in resuming an orderly life by putting
him on probation; and even if such a course is effective for some criminals,
there is still a great need for a police force in order to prevent crime, to
apprehend offenders and to bring them to justice, and, by the same token,
for courts, in order to try them.
The approach of the Jewish tradition is also worthy of recall. To this
end I quote the remarks of Hazan Ish to Orah Hayim 56:4:
486
PUNISHMENT
The basis of all criminal penalties is that because the wisdom of the Sages
is very limited and insufficient to impart prudence to the simple-minded,
punishment must be employed to set up barriers so that the world
should not be prey to those physically strong but low in intelligence.
Punishment needs, however, to be exacted in profound sorrow, free
from narrow-mindedness towards others. Since man is imperfect and is
moved by his evil inclination, one must not cease to be merciful and
apply the law negligently; only then may he also be moved by feelings
of vengeance, controlled by intelligence, the only effect of which is to
speed up the process of judgment.
Thus the general opinion is that society has been unable to contend with
criminality by ways of pleasantness and that there is no avoiding the
imposition of punishment.
Not only have we been unsuccessful in "giving prudence to the simple"
(Prov. 1:4) in order to reform them, but we have to battle with the guile
of the criminal of another kind: he works to conceal his deeds and tries
to veil his identity, which makes it difficult to bring him to trial and
prove his offence in the normal manner: it may be difficult to find witnesses;
it may be difficult to reach a decision if a defendant does not confess or
does not give evidence against his accomplice. Hence the use of State's
witnesses and plea-bargaining is sometimes necessary for the prosecution.
We must reconcile ourselves to plea-bargaining as an emergency measure.
It seems to me that it is less injurious in point of justice than relieving a
person from all criminal responsibility in exchange for serving as a witness
for the state …
I may add here that the court must be very careful not to sentence
a person for a crime he has not committed. Maimonides in his Sefer
haMitzvot (Negative Commandment 290) writes, inter alia, that "it is better
and more desirable to discharge a thousand sinners than to execute one
innocent person". This rule is common in the civilized world. Accordingly,
as regards a confession made in plea-bargaining, the courts in this country
must proceed with caution, at least as much as do ordered states. I will
employ some of the considerations found in Jewish law.
In the history of law in the western world, the confession of the accused
was highly regarded: "confession est regina probationum." There were
periods when the authorities did not hesitate to use torture to obtain
a confession, but in the course of time a fundamental change occurred;
not only was all torture or pressure to obtain confessions abandoned, but
confessions are not now relied upon unless given voluntarily. At all events,
an admission in court is sufficient for conviction.
Jewish law approaches that matter quite differently. The principles are
487
PART STX : PENAL LAW
that "a person cannot incriminate himself', and that "a person is his
own kin" (and therefore cannot give evidence against himself). As regards
confessions made in court, Maimonides (M. T. Sanhedrin 18) writes:
It is scripturally derived that the court does not sentence to death
or order flogging on a person's own confession unless there are
two (independent) witnesses. That Joshua executed Akhan and David
executed the Amalekite stranger, on their own confessions, was due to
emergency or royal decree. The Sanhedrin, however, does not sentence
to death or inflict flogging on confession of the offence, in case it is
due to unsoundness of mind or is a device of the mentally depressed to
commit suicide.
The actual rule based upon Talmudic sources is not in dispute, although
some have sought another explanation; this is not the occasion to enlarge
on this aspect. It is sufficient to cite the view of Radbaz in his commentary
to Maimonides, according to which a person's being is not his own but of
the Holy One Blessed be He.
It is noteworthy that the Jewish approach received attention by the U.S.
Supreme Court per Warren J. in Miranda v. Arizona (1966), 86 S.Ct. 1602,
384 U.S. 436 and per Douglas J. in Garrity v. State of New Jersey (1967)
87 S.Ct. 616, 617, 385 U.S. 493. I also note that there was available
to the American judges an article by Professor Norman Lamm on "Selfincrimination and Psychology: The Fifth Amendment and the Halakhah"
that originally appeared in Decalogue Journal and is now reprinted in his
book Faith and Doubt (197 ]).
It is important to point out that as regards the Noahides, who according
to the halakhah are under obligation to set up courts of law and prevent
crime (murder, theft, etc.), opinion is divided in the Talmud as to whether
their laws require the same attitude toward the confession of an accused.
Discussion of the subject continues down to this day. An exhaustive article
was published by Professor Aron Kirschenbaum (of the Law Faculty of
Tel Aviv University) in Dine Yisrael, Vol. 2, 72 entitled: "On the Rule
that a Person Cannot Incriminate Himself under Noahide Law"… .In view
of the Jewish legal tradition, we may certainly not hold a person to his
confession even if made in court under a plea-bargain, so long as he
was not properly cautioned by the court and had the opportunity to
think about the matter.
488
PUNISHMENT
4. Contempt of Court
See:
ATTORNEY-GENERAL
v.
SHEINBERGER,
Part 4, Regulation of the Courts, p. 289.
5. Punishment Fitting the Crime
Cr.A. 29118 I
Av. STATE OF ISRAEL
(1981) 35(4) P.D. 438,443,444
This was an appeal against sentence for stealing, forgery and related offences. The
appellant had committed the offences in the course of his duties while serving abroad
in the foreign service.
Elon J.: There are also varying degrees of seriousness of breach of trust.
Appropriation of public monies is more serious than appropriation of
the money of some private individual. A person in breach of trust in
respect of public moneys by fraud and deceit for his own purposes acts
with complete irresponsibility, he abuses the good intentions of those who
contributed to or provided the funds …. Of such cases the Sages said, "Public
theft is more serious than private theft, for the latter can make recompense,
the former cannot" (T. Baba Kamma IO: 14). "R. Levi said: The punishment
for (false) measures is more rigorous than that for marrying within the
forbidden degree" (Baba Batra 88b), and the reason is that it is impossible
for the offender to repent properly (Hoshen Mishpat 231:19) since he
cannot make amends, not knowing to whom he gave a false measure and
how often (Serna to Hoshen Mishpat 231:34; see also M.T. Genevah 7:12
and Rashbam to Baba Batra 88b)…
Counsel emphasised in particular the good deeds of the appellant and
his many virtues in his public career. He drew our attention to what
Maimonides writes in Mishneh Torah-"Every individual has his virtues
and failings: where the virtues exceed the failings, you have a righteous man;
where the failings exceed the virtues you have a wicked man; where they
are equally divided, you have a middling person" (M. T. Teshuvah 3:l; the
source is Kiddushin 40a-b), and if the calculation is made here, the virtues
of the appe1lant go beyond the failings mentioned in the charge.
489
PART SIX: PENAL LAW
This is indeed the attribute of the Holy One Blessed be He when the Day
of Judgment comes for judging a man on his entire life (M. T. Teshuvah 3:3)
and it is a function of His lovingkindness for His creatures, for man may
do one good deed and "ensure for himself and the entire world great merit
and bring to himself and the world salvation" (ibid. 4). But an earthly court
is bidden to judge a person for each offence separately and according to
its grievances. Although good deeds and past merit-and in converse earlier
wrongdoings-are taken into account when passing sentence, we may not
pass over the seriousness of one offence in the multitude of good deeds.
Nor in the Heavenly Court is the calculation arithmetical or quantitative.
Maimonides continues:
This calculation is not according to the number of merits and failings but
according to their magnitude. One merit can counter-balance a number
of failings, as it is said, "because in him there is found some good"
(I Kings 14: 13); one failing may outweigh a number of merits, as it
is said, "and one sinner destroyeth much good" (Eccles. 9:18) … and it
is He who knows how merits are to be appraised against failings (op.
cit. 2).
Cr.A. 419/ 81
FEIBUSH v. STATE OF ISRAEL
(1981) 35(4) P.D. 701, 708-709
The appellant was convicted with others of various offences connected with forgery.
The others were convicted of only some of these offences and were sentenced with
different degrees of severity. He appealed against his sentence, which he claimed was
disproportionately onerous and departed from the principle of uniformity of sentence
for the same offence when the decisive circumstances were similar.
Shilo J.: The first suggestion that sentence is to be commensurate with
the offence is found in Deut. 25:2-3: "And it shall be, if the wicked man
deserve to be beaten, that the judge shall cause him to lie down and to
be beaten … according to the measure of his wickedness, by number. Forty
stripes he may give him, he shall not exceed." Maimonides derives from
these verses the following rule: "To what extent is the guilty person flogged?
According to his physical strength …. The reason why forty is mentioned is
that the number may not be increased even if he is as strong and fit as
Samson. For the weak the number is reduced lest he die if given many
lashes" (M. T. Sanhedrin 7: I).
490
PUNISHMENT
The idea of reward and punishment commensurate with the circumstances
in which the deed is perpetrated is one of the foundation stones of Jewish
legal philosophy and is expressed in the Thirteen Principles of Faith as
Maimonides formulated them. Although there punishment by Heaven is
involved, the principle is equally applicable in a terrestrial court. In the
poem Yigdal, the poet mentions the principles in turn and, with regard
to reward and punishment, says: "He bestoweth lovingkindness upon a
man according to his work; he giveth to the wicked evil according to
his wickedness."
We also say that the evil one (the person convicted by the court) must be
meted out evil (punishment) according to his wickedness, according to his
conviction. That is to say, not an objective punishment according to the type
of offence but according to the particular "evil" of the offender. The evil
of a person who commits a crime to obtain a piece of bread to eat is
unlike the evil of a person who transgresses out of desire for riches. The
evil of a first offender is unlike the evil of a hardened criminal. The evil
of one who initiates, plans and controls the commission of a sophisticated
crime is unlike the evil of one who is marginally or slightly involved. There
is an abundance of similar considerations that go to the health, means,
family and social situation of the person receiving punishment. The idea
of punishment "according to his evil" includes in fact all the principles
and considerations to which we have recourse in our courts daily when
determining sentence.
6. Human Dignity
Cr.A. 344/81
STATE OF ISRAEL v. SEGAL et al.
(1981) 35(4) P.D. 313, 32?-328
This was an appeal against sentence on conviction for dealing in dangerous drugs.
Elon J.: In consequence of the intolerable conditions prevailing in some
of the prisons with regard to accommodation and food that are below
minimum human standards, as recently reported … it is fitting to pursue
more widely a policy of imposing heavy and onerous fines instead of
491
PART SIX: PENAL LAW
sending offenders to prison as long as that is not sharply inconsistent with
the circumstances of the offence and the offender and the need to guard
public well-being and security. A heavy monetary fine will often achieve
its purpose of deterring offenders and reeducating them to a life of orderly
work, whereas to our sorrow the prevailing conditions in the prisons-in
addition to placing a defendant into a criminal society which is almost
unreformable-often lead to demeaning his divine image, a course which,
I fear, we may not follow.
It is instructive that Jewish law originally did not at all recognize
imprisonment as a means of punishment. Even after it became reconciled to
the idea, under the influence of surrounding judicial systems and inexorable
necessity, the Sages of Jewish law protested against it and warned that
human dignity must be safeguarded. The matter is treated in an illuminating
fashion in a responsum of R. Hayim Palaggi of Ismir in Turkey in the
first half of the 19th century, who spoke out against incarcerating people
in "dirty and desolate jails"… (Resp. Hikekei Lev, Part 2, Hoshen Mishpat 5;
see in greater detail M. Elon, Freedom of the Individual in the Collection
of Debts in Jewish Law (1964) 228-37). I allow myself to quote something
I have written elsewhere:
What is noteworthy is that this absorption of the law current in the
surrounding society did not bring with it the accompanying feature of
the brutal treatment of prisoners, inhuman conditions regarding feeding
and accommodation and the like, that persisted even into the nineteenth
century in different countries. In the words of the historian, Salo Baron,
"Jewish prisons, one of which may still be observed in the Altneuschul
of Prague, resembled modern penitentiaries rather than medieval towers
and dungeons."
It was forbidden to subject people awaiting trial to the same conditions
of imprisonment as those already sentenced. Prisoners sentenced for noncapital offences were not to be housed in filthy places, since although they
had sinned, they were still Jews and were to be kept in decent surroundings
(M. Elon, "Imprisonment under Jewish Law", Jubilee Volume in Honour
of Pinhas Rosen, ed. H. Cohn (1962) 171, 200).
See: KATLAN v. PRISON SERVICE, Part 3, Social and Administrative Regulation, p. 199.
492
PUNISHMENT
B. Purposes of Punishment
1. Deterrence
Cr. A. 125/50
JAKOBOWITZ v. ATTORNEY GENERAL
(1952) 6 P.D. 514, 519, 543-544, 568-570
Agranat J __. The appellant was found guilty by the Tel Aviv District Court
of murder under sec. 214(c) of the Criminal Code Ordinance, 1936, in
that on 21.8.49, close to midnight, in the Meyer Garden in Tel Aviv,
he deliberately caused the death of Daniel Pektori, in order to facilitate
the commission of the crime, i.e. the rape of Naomi Stein_ The appellant
was sentenced to death, in accordance with sec. 215 … The last question we
must answer in this appeal is therefore what mens rea is needed in order
to prove the offence under sec. 214(c), which states:
Whoever wilfully causes the death of another person while preparing to
commit an offence or in order to facilitate the commission of the offence
or while committing the offence … will be accused of a crime. This crime
is called murder.
In para. 18 of the decision which is the subject of this appeal, we find:
We believe that the accused did not intend to kill Danny Pektori, but
only to drive him away from the place so that he would not disturb him
in perpetrating the rape.
Despite this determination, the learned judges found the accused guilty
of murder, since their opinion was that "the offence is applicable even if the
person who was striking did not intend to kill the deceased", and that "the
striking of the deceased and Naomi Stein on the head with the tree stump
was willful" (voluntary), and clearly "it constituted causing death wilfully,
within the meaning of sec. 214(c)". The Court reached this conclusion in
reliance on the ruling in Cr. A.- 38/47, which in essence says as follows:
A person will be found guilty of murder under sec_ 214(c) if he merely
intended the action that caused the death of the victim, even if he did not
at all intend to bring about such a result.
493
PART SIX: PENAL LAW
Silberg J.: The question is: what is the meaning of the second alternative
mentioned in sec. 214(c), and when will a person who caused the death of
another in order to facilitate the commission of an offence be deemed a
murderer? I have deliberately limited the scope of the question, confining
it to the interpretation of the meaning of only the second situation, for
two reasons: first, because that is the only question of practical import
for us here, and secondly, because with such a limitation, it will be easier
for us to reach a solution irrespective of the interpretation of the word,
"wilfully".
…. To what do the words, "in order to facilitate", refer? It would seem
obvious that they refer to a person who kills, not for the sake of killing, but as
a means of achieving a different objective. The objective is clear – to
facilitate the commission of an offence. But what is it that is intended
to facilitate the commission of the offence – the act or the result? The
act of killing, or the death of the victim? It seems to me, that a literal
reading would yield the second interpretation. Had the legislator been
precise in his wording and written that a person who "does an act causing
the death of a person to facilitate etc… ", then the words "to facilitate"
could have been attached to the word "act". This, however, is not what
the Law says: it says, a person who "causes the death of any person to
facilitate etc… ", as if to say, "A caused the death of another, so that it
would be easier for him to commit the offence." Does not our elementary
feel for language whisper to us, whenever we hear this, that it is not the
act of causing death, but rather the fact of death, which is the reason
that the commission of the offence is facilitated? And indeed, it seems to
me that this is the stipulation intended in the above phrase, even if ( or
precisely if) we completely omit the word "wilfully". And if this is so, if in
the second alternative defined in sec. 214(c), it is the death of the victim
which is intended to serve as a means of achieving the end, then it is clear
that the will of the killer was here directed to the consequence of his act,
and not only to the act itself.
What emerges from the aforesaid is, that without any connection to the
word "wilfully"… when the only offence attributed to the offender is that
the caused death in order to facilitate the commission of another offence,
he will not be considered a murderer, unless he intended the victim's death.
And thus one of the riddles encountered by anyone who reads the above
section is solved. I am referring to sec. 214(d), which designates as a
"murderer" anyone who, "after the offence has been committed, causes
the death of a person in order to secure for himself or for his partner in
crime, escape or evasion of punishment for that offence."
In the definition of this offence, we do not find the word "wilfully"-it
is missing. The question immediately arises: is the absence of this word
494
PUNISHMENT
significant, and did the legislator intend to deal more severely with an
offender under sub-sec.(d)? … No matter what the definition of "wilfully"
in sec. 214(c), is it possible that the two acts mentioned in sub-sec.(d),
i.e. causing death in order to secure escape, and causing death in order
to evade punishment, will be considered to be so much graver than the
secori.d act mentioned in sub-sec.(c), i.e. causing death in order to facilitate
the commission of the offence to the extent that in the case of sub-sec.(d)
the law foregoes the said requirement of wilfulness? It seems to me that
the answer to this can only be negative, because it is absolutely impossible,
and it is inconceivable that a reasonable person could reach such an absurd
conclusion.
From a moral point of view, there is certainly no point in being more
severe in the case of sub-sec.(d). On the contrary! To facilitate or to
make impossible the commission of an offence is undoubtedly a more
criminal purpose than to seek to escape or to evade punishment for
an offence that has already been committed. Indeed, the whole purpose
of the punishment is to prevent the commission of the offence. How
can evasion of punishment be considered a more grievous act than the
commission of the offence? Beruriah, the wife of R. Meir, pointed out that
the text states that "sins" – not sinners – "will cease", and R. Meir, as
we know, agreed with her (Berachot 10a); this means that the eradication
of crime is a more elevated goal than the punishment of offenders. It seems
to me that no one would want to argue against this view. It is therefore
clear that an offender under sub-sec.(d) cannot be judged more severely
than the offender under the second alternative in sub-sec.(c): if in the latter
case, a person is not to be considered a murderer unless he committed
the offence wilfully, then a fortiori the same will apply to the two cases
mentioned in sub-sec.(d).
495
PART SIX: PENAL LAW
2. Suspended Sentence and Repentance
Cr.A. 395/65
IBRAHIM v. ATTORNEY-GENERAL
(1965) 19(3) P.D. 58 1. 584
I'he appellant was convicted of obtaining things by deceit and, on being fined for that
offence, an existing suspended sentence for obtaining money by false pretences was
activated. I'he appeal was against activation of the suspended sentence for an offence
not identical with the one for which he was newly convicted.
Kister J.: In the present case we have no need to construe precisely the
condition attaching to offences of a particular kind, whether what was
intended were acts that constituted the offence at the date the suspended
sentence was imposed or also acts of the same type which the legislature
later treated as an offence and of which the accused was convicted.
I incline to the view that the condition regarding a type of offence is to
be interpreted as applying also to acts forbidden by the legislature with
criminal sanctions after the imposition of the suspended sentence. This
latter institution was intended to pardon an offender who had mended
his ways, and it introduces an element of repentance into criminal law.
Society may be ready to waive the punishment of an offender in certain
instances provided he mends his ways; generally the condition is not to
commit serious offences or offences of the same kind for which he was
convicted.
That is one of the concerns of repentance, for who is repentant if not
"he who is confronted with an act regarding which he offended but keeps
himself from it and does not commit it because of repentance" (M. T.
Teshuvah 2: l). One mode of repentance is "to keep away from something
in which he sinned" (ibid. 4). Although in judicial proceedings we do not
read a man's thoughts or require repentance in the moral sense but are
content that a man who might commit an offence desists from doing so …. A
person who offended by taking money not his own must be cautious not to
do anything which the legislature regards as a wrongdoing in his craving
for money; in the case of traffic offences, the offender must be most careful
not to commit anything the legislature at the time regards as an offence of
the same kind. It cannot be said, therefore, that it is a necessary condition
that the new provision must cover precisely the same acts as the previous
provision. Generally no such identity exists between the new provision
496
PUNISHMENT
and the one repealed. That was pointed out by the judge in the District
Court. Accordingly, the construction given by appellant's counsel cannot
be adopted, since were we so to understand the section it would always
be possible to argue in like cases that the new provision is not completely
identical with its predecessor, and the purpose of the legislature in putting
the offender to the test of observing the law would be largely frustrated.
3. Benefiting from Criminality
App. 327/57
ESTATE OF SHLOMO dcd.
(1958) 15 P.M. 181, 186
Kister J.: In an application… concerning the estate of the deceased it was
stated that there were eight heirs – the mother of the deceased, her six
brothers and sisters and her husband. After hearing the application the
Registrar made a succession order in accordance with the application and
determined the shares of the heirs as follows: 6/ 24 to the mother, 1/24
to each of the brothers and sisters and 12/24 to the husband. It should
be added that the application affirmed that the deceased had no land or
other assets beyond a sum of IL. 1,000 owing to her.
After the order was made, one of the brothers applied to amend it on
the ground that the husband had been charged with her murder after the
order was originally made. He was convicted of killing her and no appeal
was lodged against conviction. Accordingly, it was submitted, the husband
was not entitled to any inheritance, since no wrongdoer can benefit from
his wrongdoing: "Have you slain and a;.,o inherited?"
Speaking of the outlook of Jewish law, the personal law of the parties,
regarding public policy, there is the rule "let not the sinner be remunerated."
On the other hand there is no rule confiscating the possessions of an offender
beyond the penalty prescribed for his offence. The court will not charge
with payment a person sentenced to capital punishment, even though
there is a moral, and even quasi-judicial, obligation to compensate the
heirs of the victim (see Asheri to Baba Kamma 4:4; Ketzot haHoshen 28: 1
and 410:4; Shakh to Hoshen Mishpat 28:2). There is no rule in Jewish law
497
PART SIX: PENAL LAW
for expropriating the share of a murderer and giving it to others. similar
to the outlawry and forfeiture of English law.
C. Reasons for Severity or Leniency
1. Custom to be Uprooted
C,.A. 596/73
MAHAMID v. STATE OF ISRAEL
(1974) 28(1) P.D. 773, 776
The appellant, a Moslem, was convicted of bigamy and was duly sentenced to fine and
imprisonment. He appealed against imprisonment, on the ground that his first wife
who could not bear children had consented to his marrying a second wife, a course
permitted by his religion.
Cohn J.: The present appellant … has not committed any previous offences.
The nature of his offence does not give rise to fear of any danger that
threatens the public by allowing him to go free. But bigamy is still
wide-spread among certain sections of the population, and. although the
legislature has not said so explicitly, there is ground for the view that
by the imposition of a fine alone the courts will not succeed in doing
their part to uproot it. Maimonides already saw that regarding offences to
which man is led by desire, and the abstinence from which will cause him
great discomfort, "surely he will not desist there from other than out of
fear of onerous punishment" (The Guide for the Perplexed, Part III, 41).
And if that is so with regard to individual conduct, it is all the more
so with regard to practices anchored in religious customs.
498
PUNISHMENT
2. Seriousness of Offence against the Public
See: A. v. STATE OF ISRAEL, p. 489.
3. Past Merit of the Condemned Person
See:
A. v. STATE OF ISRAEL,
p. 489.
4. De minimis
Cr.C.(T.A.) 537/79
STATE OF ISRAEL v. LAUFER
(1981) 2 P.M. 309. 312-JIJ
The defendant was convicted on his own confession of the offence of stealing by an
employee. The articles involved were of very little value and were actually meant to be
sold as scrap. The defendant had no previous conviction and was known to be a
good and devoted employee. The prosecution did not ask for a sentence of actual
imprisonment but a suspended sentence in order to make public the seriousness with
which the offence was to be regarded.
Strusman J.: The prohibition of stealing is of ancient ongm. In my
deliberations …. I consulted the literature to see what our Sages had to
say. I found the following:
It is forbidden to steal or to oppress. If it is something
cares about, such as taking a fragment of wood from a
fence to clean the teeth – it is permitted. But even this
in the Jerusalem Talmud as being contrary to the ways
(Hoshen Mishpat 359:1).
that no one
bundle or a
is forbidden
of the pious
The reason is obvious, since "if everyone did so, the entire bundle would
disappear or the fence would collapse" (Serna ad foe.).
499
PART SIX: PENAL LAW
Thus the Sages distinguished between stealing, which is known to be a
serious offence, and the taking of a petty thing, about which people are not
meticulous. Here (the employer) was right to be concerned even with scrap
and material of little value so that "the bundle does not disappear"… but is
the act of taking something of very little value that no one is concerned
with or even knew about until the defendant drew attention to it, properly
to be dealt with as strictly as stealing?
The prosecution urges that the rule – issuing from the Supreme Court
-is that every employee who steals from his employer (exceeding IL. 500
in value) is liable to imprisonment. If that is indeed the law, we should
amend it. "Why was Jerusalem destroyed? … Because they insisted on the
strict letter of the law and did not go beyond it" (Baba Metzia 30b).
But this is not the law, and the defendant must be judged according to
his personal qualities and the circumstances of the crime. Similarly, in
the case of the serious offence of theft (from an employer), each instance
must be distinguished to determine what was stolen and the use made of
it. It cannot be said that an employee must be sentenced to imprisonment,
even if only a suspended sentence, if by bad luck his case gets to court and
he is convicted of the offence.
A fortiori the defendant here does not merit imprisonment or a suspended
sentence when I am impressed by what he said and by the view taken
by his superiors that his repentance was sincere: that he would stop his
wrongdoing and had made up his mind to that effect…that he regretted
what he had done .. lt is praiseworthy that he publicly admitted and gave
information about his misdeed and that he regretted it all (see M. T.
Teshuvah 2:2, 5).
To conclude, it is clear to me that the defendant does not merit
imprisonment, or even a suspended sentence, neither as a deterrent nor
in point of the offence committed. "Every human being has his merits
and failings. He whose merits exceed his failings is a righteous person. He
whose failings exceed his merits is a wicked person" (ibid. 3:1, 2).
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PUN I SHMENT
5. Negative Effect on Public
Cr.G.(T.A.) 764/ 82
STATE OF ISRAEL v. EFRATI
(1983) P.M. 522, 525-526
The defendant, an investment broker, was charged with misappropriating $165,000
given to him for investing on the U.S. Stock Exchange. He was remanded until the
close of proceedings in view of the large amount involved and the fear that he might
abscond.
Strusman J.: One reason for remanding until the close of the proceedings
emerges from a decision of Sussman P. in Misc. 153/79, where he ordered
the remand of a drug dealer, not merely because of the heavy penalty
that might be imposed, but because "regretfully we find ourselves here
in Israel in an atmosphere of mounting crime connected with drugs, and
the public interest requires that anyone suspected of such offences shall
not be allowed to go free, provided the evidence possessed by the State
shows that a conviction is as near as certain." Judicial consideration
of the influence of the acts of the accused on the public and the relationship
of the law to the accused is not something new to our times. It has been
the halakhah from ancient days. We learn in Sanhedrin 46a:
R. Eliezer b. Ya'akov said: I have heard that a court may impose flogging
and pass sentence even not according to the Torah, not in order to
disregard the Torah but in order to safeguard it. It once happened that
a man rode a horse on the Sabbath in Greek times and he was brought
to court and stoned, not because he deserved it but because the times
required it. Again it happened that a man had intercourse with his wife
under a fig tree and he was brought to court and flogged, not because
he merited it but because the times required it.
Rashi explains ad /oc. this last phrase as meaning that stringent measures
had to be taken because loose morals prevailed and there was widespread
religious laxity. Moreover, the individual transgressor is so punished even
if there is no widespread laxity, when there is occasion to fear that if we
let this individual be, people will learn from his example and this will
lead to public deterioration (Pithei Teshuvah, Hoshen Mishpat, Hilkhot
Dayanim 2:1).
Thus, the need of the moment to enforce the law with a strong hand
501
PART SIX: PENAL LAW
against offenders has prevailed over the pure law, according to which an
accused presumed to be innocent is entitled to circulate freely until his case
is concluded, which, in turn, creates the impression that the arm of the law is
too short to achieve its ends, and we must surrender to offenders and their
misdeeds. That is the public aspect that requires and justifies detaining an
accused until the close of proceedings, when the prosecution has evidence
that persuades the judge that the prospects are good of convicting him for
an offence from which the public suffers.
6. Return of Stolen Goods
Cr.A. 395/75
ZUR v. STATE OF ISRAEL
(1976) 30(2) P. D. 589, 599
The appellant was convicted, on his own confession, of obtaining property by fraud,
breach of trust, theft by a public servant, bribery and offences under currency law.
He was sentenced to a cumulative period of eighteen years' imprisonment. Appeal was
against sentence.
Cohn J.: With regard to those who inflict physical injury, tortfeasors,
thieves, robbers, embezzlers and swindlers of all kinds, practical remorse
is more important than verbal remorse. Our forebears have already taught
us that one who confesses to his wrongdoing but does not correct his ways
and does not make amends is like the person who holds a dead reptile
in his hand and immerses himself for cleansing (Ta'anit 16a; and Rashi
ad loc. ); but he who restores a thing he has stolen, his confession and
repentance are complete. Again, the fact that the criminal is motivated
by self-serving motives does not detract from the value of restoration of
the theft as a ground for mitigating his punishment. The main purpose
of penal law is to secure the rule of law; once the law has been broken
by theft, that rule is principally secured by restoring the stolen goods. I
incline to the view that the law regarding capital offences follows civil law,
just as equity follows law. Once the civil law has been satisfied, criminal
law is no longer as demanding or avaricious. But when the civil law is
not satisfied, penal law will arise to do its part in keeping lawlessness in
check and maintaining observance of the law.
502
PUNISHMENT
7. Penitents
See: STATE OF ISRAEL v. LAUFER. p. 499.
Cr.A. 705/81
MIARA v. STATE OF ISRAEL
(1982) 36(4) /'.D. 223, 224
The appellant was convicted of certain property offences and was sentenced to a term
of imprisonment. and given a suspended sentence. In addition, the court ordered the
implementation of an earlier suspended sentence against him. The Probation Service
recommended that he be placed on probation since he had changed his life style
completely. The lower court saw no way of being able to grant the request.
Ben Porat J.: From the judgment of the lower court.. .it is apparent that
it was ready to accede to the application of the Probation Officer but
could not see its way to doing so because a suspended sentence is not
to be extended when a defendant has been sentenced to imprisonment
or given a suspended sentence and it found no occasion for releasing the
defendant from prison for the present offence.
In normal circumstances, the lower court would be right, but the force
of repentance is great when it is clearly authentic and not merely verbal
and external. Our ancestors have said (M. T. Teshuvah 2:2) that "complete
repentance is present when He who knows the secrets of the heart testifies
that a person will never return to sinning." We do not know the secrets of
the heart but the conduct of the present defendant over a lengthy period
of two years since his release from jail gives very earnest hope that he has
indeed been able to cut himself off from the world of crime and resume
the proper path. We are prepared to assist him.
503
PART SIX: PENAL LAW
8. Shame as Punishment
Cr.A. 88/86
ZUCKERMAN v. STATE OF ISRAEL
(1986) 40(4) P.D 209, 211
Appeal against the severity of the sentence imposed upon the appellant for the offences
of accepting bribes, supplying forged documents, theft by a government employee,
forgery of documents, receiving property obtained illegally and breach of trust. The
appellant's deeds were exposed on the television and were the subject of a programme.
The grounds for the appeal were principally the shame, disgrace and suffering endured
by the appellant and his family as a result of the programme.
Elon J.: Now, whatever the case may be regarding the merits or demerits
of investigation by television, it is evident that the programme caused an
almost unbearable amount of suffering to the appellant, his wife, children
and whole family as a result of the shame and disgrace to which he
was subjected as a result of the broadcast. In the appellant's own words
– "from the day of the broadcast … myself, my wife and my two small
children have been constantly hounded and have been mentally ravaged
as a result. Wherever we go there is an accusing finger pointed at us."
Such suffering is an extremely severe punishment-"a punishment which
is not written in any law" (as stated by Witkon J. in the context of the undue
protraction of judicial proceedings in Cr.A. 125/74 Mirom International
Trading Co. et al. v. State of Israel (1976) 30(1) P.D. 57, 152) for the
offender, his wife, and most seriously, for their children. There is surely
no greater torment than that undergone by children whose companions
taunt them in the wake of the exposure of their father's crime. The Sages
took pains to administer the following warning to a judge passing sentence
on an accused person: "Do not let the dignity of our fellow man be
a small thing in your eyes … " (M. T. Sanhedrin 24:10); and the cardinal
principle in the Torah " … And you shall love your neighbor as yourself… "
(Lev. 19: 18), was also applied by the Sages to convicted criminals. Care
must be taken not to disgrace a criminal sentenced to death, and his
execution must be carried out in a dignified fashion (Sanhedrin 45a).
The fundamental rule in Jewish penal theory is that "once punishment
has been administered, the offender becomes one of your brethren" (M.
Makkot 3:15, and see at length C.A.4 4/82 State of Israel v. Tamir (1983)
37(3) P.O. 201). All this must be taken into account when considering the
degree of punishment imposed upon the criminal.
504
PUNISHMENT
D. Rehabilitation
1. General
H.C. 147/72
SALAMEH v. INSPECTOR OF TRAFFIC et al.
(1972) 26(2) P.D. 658, 661
The petitioner's application for a licence to drive a taxicab was denied because of
previous convictions.
Kister J.: The tendency today in the world at large and in Israel as well is
to enable a person who has worked hard to mend his ways to reintegrate
himself into normal civilian life. In the tradition of Jewish law, the concept
exists of "regulations for helping the penitent"…. One rule is that where a
person steals a beam of wood and uses it for building he is not required
to destroy what he built and restore the beam but may restore its value.
This apart, it has been said that where thieves and usurers make restitution,
it is not accepted from them, and the Sages are displeased with a person
who does accept restitution from them, and this is in order to encourage
people to reform themselves (Baba Kamma 94b, 95a).
See: BISHOR LTD. v. TAVBA et al, Part 9, Property-Physical and Intellectual, p. 729.
See: STATE OF ISRAEL v. LAUFER, p. 499.
See: MIARA v. STATE OF ISRAEL, p. 503.
505
PART SIX: PENAL LAW
2. Validity of Pardons
H.C. 28/ 50
MINTZER v. TEL AVIV PLANNING COMMITTEE
( I 950) 4 P. D. 492, 494
Silberg J.: It seems to me that ultimately counsel for the respondent was
right and that the demolition order is not a "penalty" in the accepted
meaning of the word. It is very difficult, if not impossible, to determine
the precise meaning of "penalty" and to distinguish it entirely from other
sanctions. Great Jewish law scholars have already pondered the problem
without coming to a decision. No one will dispute… that there is no
punishment without an offence and that punishment is only to be imposed
after conviction. If our legislature … allows the demolition of the house
of a person who has not committed any offence – i.e. punishes the
purchaser instead of the builder of the house-does that not demonstrate
beyond all doubt that demolition is not part of the punishment, even
when accompanied by a conviction? It seems to me that here the purpose
of the legislature in enabling the issue of a demolition order was not only the
usual, "traditional" purpose of criminal law, so that others may be deterred
in the future, but also, and mainly, to prevent any mishap in the actual case
before the court. It is very possible that the Town Planning Ordinance is
in truth deficient and that de lege ferenda it would be best to enable
a demolition order to be made when the offender is caught but cannot
for some reason be convicted. But this lacuna in the Ordinance need not
entail others, nor need it lead us to the absurd conclusion that when
some happy day the State decides to grant an amnesty to offenders
and forgo their punishment, it should simultaneously penalise the public
by leaving it open to the dangers of forbidden building. Just as the
Day of Atonement-a time for religious amnesty-brings no pardon for
wrongs between man and his neighbour until the neighbour is appeased
( Yoma 85b), so secular amnesty will not discharge the offender of his social
obligation, and demolition of a building erected without licence is entirely
in compliance with such obligation since every building of this kind is a
potential "nuisance", a kind of "pit in a public place", a nuisance which
the person who dug it is commanded to close up and remove. That certainly
is not "punishment", and pardon does not apply.
506
PUNISHMENT
E. Status of Ex-Convict
I. Innocence
H.C. 301/66
EZRA v. DIRECTOR OF THE LICENSING AUTHORITY
(1967) 21(1) P.D. 128, 135-136
The petitioner, a cab driver, was convicted of committing an indecent act by f ori:e
on a woman passenger, and of false imprisonment. He was sentenced to a term of
imprisonment and was disqualified from holding a cab licence for three years. The
sentence was affirmed by the Supreme Court. After his period of disqualification had
terminated, he applied for his licence to be restored but was refused, in view of the
Regulation that barred a person convicted of such offences from driving a public
vehicle. The issue was whether the Licensing Authority may decide that disqualification
for a given period is not enough and that he is to be permanently disqualified.
Cohn J.: My friend, Landau J., has already pointed out that since judgment
was handed down against the petitioner, nothing has occurred to give rise to
any fear that he would resume his past deviations. That means that the
respondent cannot, and in fact does not, base his fear on anything other
than the fact that four years ago the petitioner committed offences of which
he was convicted and for which he was punished. I am not saying that such
conviction cannot serve as a basis for reasonable fears that the offender
may return to his old ways. Possibly in the course of trying him or in
connection therewith or subsequent thereto facts or circumstances might
be revealed that justify such fears. But far be it from us to raise the
presumption that a person is wicked merely because he once or twice
fell by the way or took the wrong path. If any presumption is to be raised
at all, it is that he has presumably paid the penalty which has effectively
rendered him fully repentant. As we have learnt, "Lest thy brother shall
be dishonored in thine eyes" (Deut. 25:3): after he has undergone flogging
(for his offence) "he is thy brother" (M. Makkot 3:15).
507
PART SIX: PENAL LAW
2. Freedom of Activity
H.C 245/ 66
SACHA v. INSPECTOR GENERAL OF POLICE
(1966) 20{4) P.D. 441-442, 447-448
The petitioner applied for a licence to run a restaurant and bar and was refused.
He submitted that account should have been taken of the impression gained by the
municipal court from unchallenged evidence when he was tried for carrying on business
without a licence, that the place did not have "the general character of a rendezvous for
criminals." It was also urged that he had invested large sums to improve and decorate
the place and the refusal of a licence would involve him in great loss and deprive
him of his livelihood. The respondent claimed that he had an extensive criminal past
and that the place was frequented by the underworld, drug addicts and prostitutes;
local residents had also complained about the nuisance the place would cause.
Kister J.: I concur and desire to add a few observations regarding the
influence of convictions on restricting the pursuit of certain occupations.
Today the principle is that only the penalty fixed by law is to be
imposed on an offender, that once he has paid the penalty he is no longer
restricted in his rights, including his civil rights. In Jewish law, the rule
is that "all who have sinned and been flogged become fit again" (M. T.
Sanhedrin 17:7; Makkot 23a).
Another important principle, recognised by the Common law, is that
of freedom of trade: a person may pursue the calling and occupation he
chooses. Nevertheless, the legislature sometimes finds it right to deny, or
enable the denial of, the opportunity of engaging in a particular occupation,
of filling a particular post either temporarily or absolutely, if the person
involved has been guilty of some kind of offence.
The reason that at times the legislature thinks it proper to restrict a
person's freedom of trade may be either to "contain the situation", that
is, as punishment, or because the trade sought to be pursued involves
a particular task or occupation which requires that it should not be
pursued by a person who has committed an offence, mainly of calumny.
There are also occupations that require the person engaged therein to be
trustworthy and experienced or to possess certain qualities that ensure that
public mishaps will be avoided. A person with a criminal past may shake
public confidence in him. Without a doubt, having served one's sentence
does not confer upon an offender any right to receive a certificate of
probity.
508
P UNISHMENT
The question therefore remains, how can we determine that an offender
has reformed his ways. Jewish law gives examples: see Sanhedrin 25a;
M.T. Edut 12:9; Hoshen Mishpat 34:29 to end; Yoreh De'ah 119:15 and
18. In modern law, lines of thought are to be found that the lapse of
a particular period, varying with the seriousness of the offence, during
which the conduct of the offender has been unexceptionable, will be enough
for past offences no longer to be taken into account.
According to the law prevailing here, there is no such line of thought and
it is sufficient for a person who has committed an offence to demonstrate
by external indications that he is worthy of the required confidence.
3. Public Office
See: A.
v. ATTORNEY-GENERAL,
Part 3, Social and Administrative Regulation, p. 167.
509