1 Balaban v. Balaban (1960) 14 P.D. 285, at 291; Englard, I., “The Place of Religious Law in the Israel Legal System” Part I (1970) 2 Mishpatim268, at 291Google Scholar. In my opinion, the attitude of Jewish law towards the secular law as custom, as “the law of the land”, as situmta (commercial practice) etc. is an attitude towards something factual, not legal.

2 See Milstein, A., The Religious Argument in the Legislative Process in Israel, Paper Submitted as a Doctoral Thesis, (Jerusalem, 1972)Google Scholar; Elon, M., Religious Legislation (Jerusalem, 1968, in Hebrew)Google Scholar; Elon, M., Jewish Law, Its History, Sources and Principles (Jerusalem, 1989, in Hebrew) 1361Google Scholaret seq.; Warhaftig, Z., A Constitution for Israel - Religion and State (Jerusalem, 1988, in Hebrew)Google Scholar.

3 See Englard, supra n. 1, at 299.

4 7 L.S.I. 139.

5 13 L.S.I. 73.

6 Restriction of Jewish law, or of the scope of jurisdiction by virtue thereof, may be found in various legislative provisions which are also directed at the rabbinical courts. See Englard, “The Place of Religious Law in the Israel Legal System”, Part III (1972) 4 Mishpatim31, at 41, 45Google Scholar. See also the words of Rabbi Y. Kapah in Nagar v. Nagar (1984) 38(i) P.D. 365, at 411, to the effect that the perception that the legislator wish to force the rabbinical courts, by laws directed expressly at them, to rule contrary to their religion and beliefs, was widespread at the time, and eventually became fixed doctrine, though it need not necessarily have done so. In fact, these laws ought to be interpreted in a straightforward manner, independent of this perception. And see the distinction he makes there between civil law and criminal law, and see below. On various distinctions regarding the nature of incorporation by reference, which destroy its justification, see the words of Landau J., in Rudnizki v. Great Rabbinical Court of Appeals et al. (1970) 24(i) P.D. 704, at 712. And see also the words of Cheshin J. in Bousslik v. Attorney General (1954) 8 P.D. 4, at 37 et seq., 2 S.J. 239; and see further, Englard, n. 49 below.

7 Ibid., at 19 (S.J. 254).

8 Englard, supra n. 1, part II, 510 at 513-514. Additional problems in the way the courts relate to the religious court even where the law directs them to turn to the religious law and to the rulings of the organs competent to rule by virtue thereof, are listed there by Prof. Englard.

9 Ibid., at 514. Prof. Englard attributes this approach “mainly” to a judge who is expert in Talmud and the sources of Jewish law, but he presumes it to be the approach of other judges as well.

10 Englard, I., “Research on Jewish Law - Its Nature and Function” (1976) 7 Mishpatim34, at 36Google Scholar.

11 (1958) 12 P.D. 1121Google Scholar.

12 See the list of sources at the beginning of the decision. The whole matter requires a discussion of the substantive issues, and it must be assumed, that this has not as yet been done for the reason that the rulings of Agranat J. and of Rabbi Goldschmidt are so long and so replete with sources. With the passage of time, the conclusion of the ruling has become one of the permanent features of Israeli case-law, without anyone questioning it any more.

13 On p. 1137 of the decision.

14 Englard, supra n. 10, at 56; Elon, M., “More About Research into Jewish Law” (1977) 8 Mishpatim99, at 116ffGoogle Scholar. And see also the dispute between Rabbis S. Israeli and Bleich and between Justice Elon concerning the case of Aloni et al. v. Nakash et al. (1987) 41(ii) P.D. 11, published in (1987) 8 Tehumin 263ffGoogle Scholar.

15 Englard, supra n. 8, at 528.

16 Shiftman, P., “Jewish Law in the Decisions of the Courts” (1987) 13 Shenaton HaMishpat HaIvri371, at 374Google Scholar: “In my opinion, the court should be called upon to fulfil its duty and to rule on the law of divorce according to Jewish law. And I again stress: this is a patently secular obligation, in the sense that the court is supposed to adopt for itself an independent stance, one that is not necessarily identical with that of the Rabbinical court, for the purpose of solving difficult problems …” And see the words of Witkon J. in Gittia v. Chief Rabbinate et al. (1968) 32(i) P.D. 290, at 296: “There have been more than a few cases in which the courts interpreted, according to their expertise, laws pertaining to personal status, and even disagreed with the interpretations of the Rabbinical courts …” and see also Englard, I., “The Status of the Rabbinical Council and the Supervisory Power of the High Court of Justice” (1965) 22 HaPraklit 68Google Scholar; Shawa, M., “Jurisdiction of Rabbinical and Civil Courts in Matrimonial Cases” (1969) 25 HaPraklit 617Google Scholar, and Yosef v. Yosef (1970) 24(i) P.D. 792.

17 Supra n. 8, at 531.

18 Englard, supra n. 1, at 297.

19 Prof. N. Rakover collated all that has been said in the Knesset which, in his opinion, relates to the influence of Jewish law on legislation: Jewish Law in the Legislation of the Knesset (Jerusalem, 1989)Google Scholar. On recourse to Jewish law, see a parallel collection: Jewish Law in the Decisions of Israeli Courts (Jerusalem, 1989)Google Scholar. The material in the Law and Constitution Committee of the Knesset is certainly more extensive and more to the point.

20 12 L.S.I. 100.

21 19 L.S.I. 254.

22 14 L.S.I. 48.

23 L.S.I. Special volume.

24 2 L.S.I. [N.V.] 5.

25 17 L.S.I. 161.

26 See M. Elon, Jewish Law, supra n. 2.

27 (1952) 6 P.D.4, at 12Google Scholar. Silberg J., who sat on the bench in that matter, applied the meaning of the term “correct” in the Halakhah to the question before him.

28 (1981) 35(ii) P.D.785, at 789Google Scholar.

29 Fresco v. Matvillaw (1965) 19(i) P.D. 513. And see the comment of Yadin, U., “Once Again on Interpretation of the Laws of the Knesset” (1970) 26 HaPraklit358, at 366Google Scholar.

30 Prof. Yadin (id.) writes: “One can predict, so its seems to me, that when it comes to interpretation of the new legislation, reliance upon Jewish law will increase, both with respect to neutral expressions, such as “lapsing”, and with respect to specific expressions, such as shekhiv mera. This will be even more the case with regard to provisions of the type found in sec. 9 of the Succession Law. This will constitute a new and added path for Jewish law and for its integration into Israeli law, not by virtue of a change or a decision based on art. 46 of the Palestine Order-in-Council, but as an organic outgrowth of the new legislation emanating from the Knesset.” Prof. Yadin's prediction is not eventuating: see below.

31 Supra n. 28, at 790.

32 Ibid.

33 Barak, A., Agency Law, 1965 in Commentaries to the Laws of Contracts, Tedeschi, G., ed., (Jerusalem, 1975, in Hebrew) 87–88Google Scholar.

34 19 L.S.I. 231.

35 (1976) 7 Mishpatim 15Google Scholar.

36 In Kupat-Am Bank v. Hendeles (1980) 34(iii) P.D. 57, Barak J. and Landau P. discussed the compatability of basic legislative assumptions with the principles of Halakhah with respect to the restoration of lost property. And see the reply of Elon J. in the Further Hearing, supra n. 28, at 795-796.

37 Tedeschi, G., Studies in Israel Law (Jerusalem, 1960) 66Google Scholar. These words were quoted by Prof. Barakin his abovementioned article (supra n. 35) at p. 16, near n. 12, where Prof. Barak adds that “this doctrine includes, inter alia, rules of classification of legal institutions”.

38 See Barak, supra n. 35, at 16. Another association, on a different level, was made by Shulamit Aloni M.K., upon reading the Guardianship of Property Law (as this Law was called in the Government's proposal): this was the association with the rules governing bailees in the Jewish law sources, and Aloni therefore suggested - and her suggestion was accepted - that the name be changed to the Bailees Law. See Divrei HaKnesset, vol. 49, at 2148Google Scholar; Cheshin, M., “Bailment and Bailees: On Interpretation of Section 1 of the Bailees Law” (1971) 3 Mishpatim 137Google Scholar, regretted even this.

39 See Lifshitz, B., “‘The One Benefits and the Other Does Not Lose’ - ‘A Benefit Which Did Not Involve a Loss to the Benefactor’?” (1986) 37 HaPraklit 203Google Scholar.

40 23 L.S.I. 283.

41 Divrei HaKnesset, vol. 8, at 671Google Scholar. The then Minister of Justice, Pinhas Rosen, said openly that it was only economic necessity which led to the enactment of the said sec. 54, and that he personally would not have recommended departing from the Roman system (loc. cit., at 771).

42 21 L.S.I. 49.

43 And this was already explained by Prof.Tedeschi, in his article, “The Statutory Bailee” (1978) 8 Mishpatim 430Google Scholar. And see also Biton v. “Halamish” (1982) 36(ii) P.D. 706.

44 Rakover, N., in his article, “The Jewish Law Sources for the Bailees Law, 1967” (1968) 24 HaPraklit 208Google Scholar, mentions this dispute in a footnote only, and from what he says, it seems clear that the approach of the Law is identical to that of Jewish law, but this is not the case.

45 See Baba Metzia 99a, the discussion of “Strike it with a stick and it will come”.

46 (1982) 36(iii) P.D. 281Google Scholar.

47 The whole discussion on the above case is theoretical and constitutes obiter dictum only, for it was possible to reach the conclusion immediately, viz., that no damage was proved, and that in any case none of the other questions discussed here were relevant.

48 21 L.S.I. 41.

49 Cf. Englard, I., “Integration of Jewish Law into the Israeli Legal System”, in Bazak, Y., ed., Jewish Law and the State of Israel (Jerusalem, 1969, in Hebrew) 110, at 125Google Scholar.

50 27 L.S.I. 117.

51 See Howard v. Miara (1981) 35(ii) P.D. 505, and Shalev, G., The Contents of a Contract in Commentaries to the Laws of Contracts, Tedeschi, G.ed., (Jerusalem, 1988, in Hebrew) 137Google Scholar.

52 See my book: “Promise” - Obligation and Acquisition in Jewish Law (Jerusalem, 1988, in Hebrew) chap. 1Google Scholar.

53 22 L.S.I. 107.

54 20 L.S.I. 113.

55 Zeltner, Z., Sale Law, 1968, in Commentaries to the Laws of Contracts, Tedeschi, G.ed., (Jerusalem, 1972, in Hebrew) 16Google Scholar; Zamir, E., Sale Law, 1968, in Commentaries to the Laws of Contracts, Tedeschi, G.ed., (Jerusalem, 1987, in Hebrew) 23Google Scholar.

56 Atiyah, P.S., The Rise and Fall of Freedom of Contract (Oxford, 1979) 419ffGoogle Scholar.

57 This distinction corresponds to that between a right in rem and a right in personam. The tendency of scholars to deny the link to Jewish law is inappropriate. Thus, Zeltner's reliance (supra n. 55, at 15) on the Mitoba case is not justified, since the real question is whether another content has been welded into the expression “sale”. And even more surprising is the question of why the definition given to “sale” is particularly unsuited to a law which does not link the transfer of ownership to the making of contract, i.e. to the consent of the contracting parties only, but rather, to a later transfer (ibid., at 16). It seems, that there has been an intermingling of concepts. And cf. Zamir, supra n. 55, at 25.

58 See my book, supra n. 52, at 99ff.

59 19 L.S.I. 58.

60 Cf. the decision in Koenig v. Cohen (1982) 36(iii) P.D. 701.

61 On knowledge and ignorance of the law, see Englard, supra n. 8, at 515ff. And see P.P. Tiling Ltd. et al. v. Alfasi (1964) 18(iv) P.D. 63, and Englard, I., “The Oath of a Witness - A Scriptural Obligation” (1965) 25 HaPraklit 435Google Scholar. And see Landau J. in Koenig v. Cohen, supra n. 60, at 745. And see Schnir v. State of Israel (1974) 28(i) P.D. 243, and Cheshin, D., “Transferred Intention in Premeditated Murder” (1976) 6 Mishpatim 378Google Scholar, n. 36; Roitman v. United Mizrahi Bank (1975) 29(ii) P.D. 81, and Ettinger, Sh., “Tortual Liability of a False Witness in Jewish Law” (1979) 9 Mishpatim 93Google Scholar. It is a glaring phenomenon that many of the decisions which deal with Jewish law from a substantive point of view were the subjects of criticism which revealed a lack of correspondence between what was said in the decision and between what has emerged in the research as a more precise position of Jewish law. And see Englard, supra n. 8, at 514, n. 19.

62 See Kupat-Am Bank v. Hendeles, supra n. 36, in the decision of Barak J. at 68, concerning the books which are open to all, and the response of Elon J. in his decision on p. 83. Deutsch, S., “Jewish Law in the Decisions of the Courts” (1988) 6 Mehkarei Mishpat 7Google Scholar, attributes the difference between the Supreme Court and the District Courts in the amount of recourse each has to Jewish law to the difference in the willingness of each of the two instances to invoke secondary sources. This difference, too, demand explanation, and it seems that the explanation lies in the difference in the feeling of independence of the two instances.

63 See Englard, supra n. 8, at 530. And see also Attorney General v. Yihiah & Ora Abraham (1968) 22(i) P.D. 29, at 47, per Silberg J.: “This Court does not lay down the halakhah in Israel. It is known that this is a purpose for which it is not fitted”.

64 Landau, M., “Rule and Discretion in the Administration of Justice” (1969) 1 Mishpatim 292Google Scholar, quoted in the decision of Elon J. in Hendeles v. Kupat-Am Bank, supra n. 28. And see the response-supplement of Landau P. in his decision, at 799.

65 This conclusion emerges also from the words of Prof. Barak, supra n. 35.

66 Shilo, S., “On the Status of Jewish Law in the State” (1974) 5 Dine Israel 255Google Scholar.

67 Cf. Cheshin, M., “The Heritage of Israel and the Law of the State”, in Gavison, R., ed., Civil Rights in Israel, Essays in Honour of Cohn, Haim H.(Jerusalem, 1982, in Hebrew) 47Google Scholar.

68 Supra n. 27, at 12 (emphasis added).

69 See I. Englard, supra n. 49.

70 Supra n. 28, at 796, and even more strongly in a newspaper interview: “… maybe if one would see in the volumes of law reports not only Lord Atkin and Justice Holmes, but also R. Akiba and R. Ishmael, Maimonides and Rashba, Noda Beyehuda and the Vilna Gaon, this would be included in the ‘business’ of history and would be preserved with it” -Ma'ariv, April 22, 1988. For this reason, Elon J. in Leah Shakdiel v. Minister for Religious Affairs et al. (1988) 42(ii) P.D. 242, points out that he is neither a decisor (posek) nor the son of a decisor (and see n. 63 above). In these matters, rulings may even be made “in brief form and nearly enough”, which is unacceptable in matters that are incorporated by reference.

71 See Rosenthal v. Tomshavski (1971) 25(i) P.D. 488, at 492, following Rosenbaum v. Rosenbaum (1953) 7 P.D. 1037, at 1045.

72 34 L.S.I. 181.

73 See Ben Menahem, H., “Foundations of Law Act, 1980 - A Duty of Submission or of Consultation?” (1987) 13 Shenaton HaMishpat HaIvri 257Google Scholar, which proposes that the Foundations of Law Act be understood as obligating the judge to consult Jewish law prior to making a ruling, when the conditions of sec. 1 of the Law have been fulfilled. In our opinion, the Foundations of Law Act mandates submission. In other matters of interpretation, which do not come within the framework of the Law, there is a duty of consultation and submission, as stated above.