¹ Sefer HaHukim, No. 529 of 28.6.68. See the Bill in Hatza'ot Hok, No. 669 of 15.7.65.

² See Yadin, U. in: “Reflections on a New Law of Succession” (1966) 1 Is.L.R. 132Google Scholar, where he says that the sections (of the Succession Law) are short, its language concise…it seldom goes into details. U. Yadin refers to the Explanatory Notes to the draft of the Succession Law where the system is explained: “The law forms a net with wide meshes and it will be the judge's task to complete the work of the legislator, to fill the spaces between the meshes by finer and more closely woven threads.” See also: “Israel Law: Components and Trends”, by Ginossar, S. (1966) 1 Is.L.R. 380, 392 and note 49.Google Scholar

³ See (1965–66) 44 Divrei HaKnesset 32.

⁴ Ibid.

⁵ The Mejelle is dated A.H. 1285 but in actual fact it was not published all at once but Book by Book during the years 1869–77. It contains an introduction which in its first part presents a definition and classification of Moslem jurisprudence and it is followed by 99 maxims containing the principles on which Moslem Law is based. It contains 16 Books. Each Book deals with a separate subject of the law of contract except the last three which embody rules of procedure. The Mejelle has been translated into English and into Hebrew. See Ginossar, supra at note 2.

⁶ In this connection see Ginossar, ibid. 380, 388, 389.

⁷ In Turkey itself it has long ago been substituted by the adoption of the Swiss Civil Code.

⁸ Laws of Palestine, vol. III, 2569.

⁹ 1 L.S.I. 7.

¹⁰ See arts. 36–39, 41, 114 and 120 of the Ottoman Land Code and the following cases: Ash v. Petah Tikvah Local Council (1934) 2 P.L.R. 418; Islaibi v. Zablah (1942) 9 P.L.R. 595, 12 C.L.R. 208; Abu Mahmud v. Rahman el-Jamal (1942) 10 P.L.R. 64; Schneider v. Basis [1945] A.L.R. 106; Rechter v. Director of Estate Duty (1962) (II) 17 P.D. 701; Snir et al. v. Fateh et al. (1962) (II) 17 P.D. 1131. In the last case it was emphasized that the provisions of the Land Transfer Ordinance were superimposed upon the provisions of the Mejelle and therefore the provisions of art. 851 of the Mejelle in connection with a gift from a tutor to his ward under which no delivery is necessary, and the provisions of art. 866 under which a gift from father to son is irrevocable, would no longer apply after the enactment of the Land Transfer Ordiance.

¹¹ Hatza'ot Hok, No. 612 of 15.6.64.

¹² Whatever the shortcomings of the Mejelle as a code for a modern society, ‘it is imbued with an understading of life and the nature and motives of human beings”.

¹³ It should be noted that the repeal by the Succession Law of the articles of the Mejelle concerning gifts made during the course of a mortal illness (arts 877, 880) and by the Capacity and Guardianship Law of the articles dealing with the interdicted prodigal (arts. 990–97) were criticized by a member of the Knesset during the debate on the Gift Law: 44 Divrei HaKnesset (1965–66) 30. Mr. Gross M.K. hypothetically referred to the case of a person who during a protracted mortal illness is likely to endanger the legitimate interests of his close family by bestowing completed gifts on persons outside the family circle. See Rosenberg v. Kremerz (1957) 12 P.D. 1096 as to a gift bestowed on a “reputed wife” in the course of a mortal illness. For comparison see § 2595, Traité Elémentaire de Droit Civil, M. Planiol (7ème éd.) 634 where it is said that “les réserves coutumières (parts de la succession réservées aux parents) ne protégeaient des héritiers que contre les testaments et non contre les donations. Afin de rendre plus rares les donations, on jugea utile de conserver une règle qui obligeait le donataire de se dépouiller lui-même de son vivant et d'une manière irrévocable.”

¹⁴ In Jewish Law, a similar presumption is provided. A member of the Knesset stated: “The Bill does not contain any provisions which are obviously opposed to original Jewish Law.” In actual fact the Law contains several provisions which are derived from Jewish Law. See second part of this article. See also note by Rakover, N.: “Jewish Law sources in the Law of Gifts” in (1968) 24 HaPraklit 496 (September 1968).Google Scholar

¹⁵ The conception of gift under the new Law is similar to the concept of gift under present-day French Law, though under French Law it is considered to be a unilateral contract. The impoverishment (appauvrissement) of the donor and the enrichment (enrichissement) of the donee are essential elements under French law. This basic concept of gift stems from Roman law. Acceptance, or consent, is also required by French law. It is to be notified by the donee to the donor but there is no period fixed by law within which notification should take place. In some cases consent can be tacit. It may be noted, however, that several legal systems which did not at first accept the doctrine that “one may obtain a privilege on behalf of a person in the latter's absence” have, at a later stage of their development, adopted this doctrine. Anglo-American law has accepted the said doctrine even in matters which are beyond obligation-creating agreements.

¹⁶ The understanding and agreement between the parties as to the true nature of the transaction is unlike Gift under Roman Law in the so-called classical period, when a formal act declaring donation was sufficient in itself to make the gift valid. The intentions of the parties were of little interest. But already under the Lex Cincia (204 B.C.) the purely formal act became insufficient and the validity of a gift was to be tested not by the formality of the act alone but by proof that the aim which it had set itself to achieve as an economic and social act had in fact been achieved. Thus, gift which was not followed by delivery or which exceeded a certain (unknown to us) amount—except between persons connected by family ties—was revocable and the praetor could declare invalid gifts made with the intention of defrauding creditors (Michel, Jacques, Gratuité en droit Romain, 289–301Google Scholar; Leage, R. W. (1961) Roman Private Law.)Google Scholar

¹⁷ See Custodian of Absentees' Property v. Zaki Shibli Ayub (1960) 8 P.D. 1106, as to “delivery” of immovable property, and the remarks of Sussman J. concerning the nature of gift as a “disposition” within the meaning of the Land Transfer Ordinance, 1920. But see Custodian of Absentees' Property v. Mulwais (1956) 11 P.D. 64, regarding the gift of immovable property prior to the enactment of the Land Transfer Ordinance. See also Rechter v. Director of Estate Duty (II) 17 P.D. 701 and Snir v. Faleh, supra, regarding the effect of the Land Transfer Ordinance on the gift of immovable property.

¹⁸ As to delivery see Rot v. Estate of Zvi Brenner (1965) III 20 P.D. 85 where the question what was proper delivery was considered by Halevi J., but, under the circumstances of the case, was not determined by the Court. The facts of the case were unusual. An heir (a married daughter) brought a claim against the administrator of the estate of her deceased father, demanding the transfer to herself of a plot of land which her mother, also an heir of the deceased, had given to the daughter as a gift, before her own death, by means of an irrevocable power of attorney in her favour. The other heirs objected to this on the grounds, inter alia, that there had been no proper delivery of the thing donated and that under art. 849 of the Mejelle. the death of the donor before the transfer of the gift rendered the gift null and void. Was the irrevocable power of attorney sufficient transfer within the meaning of art. 849? Halevi J. referred to several commentators on Moslem Law who interpreted the notion of delivery in a liberal and progressive manner, according to the precepts of Moslem jurisprudence.

¹⁹ Compare with art. 858 of the Mejelle which lays down that a thing bestowed by way of gift must be clearly ascertained and defined. No provision of that nature appears in the new Law. The Law does not say anything regarding the gift of a thing which the donor intends to acquire in the future either by acquisition or by way of succession. Compare with French law under which a gift of a servitude or a usufruct is possible as long as the right donated is a “droit réel”.

²⁰ In this connection see the Transfer of Obligations Bill, 1965, Hatza'ot Hok No. 657 (of 14.6.65) p. 246 and also arts. 847 and 848 of the Mejelle.

²¹ Compare with art. 847 of the Mejelle.

²² Compare with art. 855 of the Mejelle where there is a somewhat similar provision but the language used is different: the donor may validly demand some compensation in return for his gift. In such a case the contract is valid and the condition binding upon the recipient.

²³ See Katz v. Harari (1962) 16 P.D. 1337. Here immovable property was transferred to a daughter (the respondent) by her mother by way of sale without consideration. After the mother's death the respondent's brother (the appellant) claimed that the property should have been registered in the names of all the heirs of their late mother on the ground that at the time he had agreed to the gift on condition that the respondent would undertake to see to the maintenance of their parents for the duration of their lives, a condition which she had failed to fulfil. Under the former law (arts. 38, 39 & 114 of the Ottoman Land Code), such a condition, in order to be effective, had to be registered together with the deed of transfer and unless this was done the gift was revocable. The case had other aspects which do not concern us presently. What is interesting is that, at present, under the new Law, both donor and beneficiaries have a proper legal claim against the donee in a case of this nature.

²⁴ Sefer HaHukim No. 446 of 10.2.65. See official translation into English published by the Ministry of Justice in 1966.

²⁵ But see Halevi J. in Rot v. Estate of Zvi Brenner, supra, in which he expressed an objection to the application of the rules of equity to the Law of Gift as it was then regulated by the Mejelle. In his opinion this was altogether unnecessary in view of Minkowitz v. Fishchener (1947) 2 P.D. 39—which lays down that English Law should not be applied where the problem had been regulated, however poorly or incompletely, by local law. One wonders if now, under the new Law, one should at all resort to the doctrines of equity, in connection with gift, especially in view of opinions recently expressed by jurists (see below, note 44). However, since this is still unsettled, it may be of interest to refer the reader to D.E. Allan's article in (1963) L.Q.R. 238, 243, 245 and 246: “An Equity to Perfect a Gift”. Though dealing with equity mainly it has some bearing on the problem before us.

²⁶ See 44 Divrei HaKnesset 29 and 83 where the question was raised and dealt with by the Minister of Justice.

²⁷ Under French law “donation” is a “contrat solennel” which is to be drawn by deed in the presence of a notary and may be nullified if this formality is not observed. But certain gifts are exempt from this formality.

²⁸ Compare with art. 854 of the Mejelle.

²⁹ See Cheshire and Fifoot, , The Law of Contract (4th ed. 1956) 86–91, 71.Google Scholar

³⁰ Under Roman Law of the classical period donatio was not founded on consideration and was not a bilateral contract. The formal act was sufficient in itself but then it created no obligation. The gift was unenforceable but it was also free from some of the limitations which accompany enforceable contracts. Thus, a gift given under circumstances which were contrary to public morality (like a gift to a concubine) was valid, though unenforceable. Later, in accordance with Constantine's reforms, gift had to be the object of a formal written document officially registered, containing all the relevant details concerning the parties, the subject-matter of the gift and the nature of the right which was being given up by the donor in favour of the donee. The purpose of this reform was to establish gift as an independent judicial act, recognizable by outward formalities. Delivery became an essential element even earlier, under the Lex Cincia (204 B.C.). Justinian's reforms followed the same lines but simplified the formalities because by that time gift was already well established as a contract generating obligations, that is, capable of being enforced.

³¹ It is to be noted that equity has another solution for the imperfect gift where the donor intends to retain the legal title and to create a gift by way of trust. In equity such a transaction is perfect in itself and its validity depends only on the proper construction to be placed on documents and other evidence. Moreover, the principles of equitable estoppel are of great help in arriving at the conclusion that a gift has in effect been created even where the initial declaration of trust has not been explicit enough. See Sunnucks, J.H.C., “Equity and the Imperfect Gift” (1968) 118 New L.J.Google Scholar

Israeli law, however, cannot take advantage of such legal devices, not having absorbed to the full, rightly or wrongly, the doctrine of the private trust of English law. But Jewish law does have something similar to the creation of a gift by way of trust, by bestowing a gift through the agency of a third party, and when the latter takes possession of the gift, the donee acquires title even if the gift has not reached him, and the donor cannot then retract. This is done in accordance with the doctrine that one may obtain a privilege on behalf of a person in the latter's absence. See the Code of Maimonides, Book XII (The Book of Acquisition) Treatise II, Chapter IV/2 (translation by Isaac Klein, Yale Judaica Series, Vol. V) and in greater detail in Part II of the present article.

³² Under French law, for example, a gift may be revoked for the non-fulfilment of a condition (charge), for ingratitude, and in case it becomes necessary to provide for children who were born after the bestowal of the gift (survenance d'enfants). The same was the case in Roman law under and after Justinian but during the so-called classical period of Roman law gratitude was not expected from the donee because gift did not then have the attributes of a contract or the effect of an obligation.

³³ Under Roman law, too, the requirements of delivery under the Lex Cincia postponed the moment of the completion of the gift, and hence its irrevocability. This lapse of time gave the donor the chance to ponder over his actions and to weigh properly the pecuniary loss which he was about to inflict upon himself.

³⁴ Compare with arts. 861, 876 of the Mejelle. See the Ayub case, supra n. 17, as to the revocation of a gift of immovable property before delivery under art. 862 of the Mejelle. See also the Muwais case, supra n. 17, as to proof of non-delivery in connection with the revocation of a gift of immovable property. And see Snir v. Faleh, supra n. 10, concerning the irrevocability, or otherwise, of a gift between father and son under art. 866 of the Mejelle.

³⁵ In this connection see Yaron, R., Gifts in Contemplation of Death in Jewish and Roman Law (1960)Google Scholar, Chapters IV and VI.

³⁶ The classical donatio of Roman law did not even impose on the donee the duty of gratitude, contrary to later developments following Justinian's reforms. This attitude was a corollary of the conception that the donatio of the classical period was not a judicial act creating an obligation.

³⁷ This provision has a parallel in Roman Law: a donor could set up the defence that it was not within his means to complete the gift as promised but the defence could be raised only as to the extent of his possibilities at the time of completion.

³⁸ An interesting point, and one which, to our mind, should not be ignored, has been raised by Bader, Y., M.K., , (See Divrei HaKnesset, vol. 44 (1965–1966) 32.Google Scholar) He referred to Roman Law (Justinian's Digest) under which revocation of a gift was apparently allowed for the reason that a donor has become destitute, only where this condition has been caused through no fault or voluntary action on the part of the donor himself; where the donor has brought poverty upon himself, no revocation of a gift was allowed. Dr. Bader continued to say that the possibility provided by sec. 5(c) can be misused and taken advantage of by a donor who has changed his mind and looks for legal means of releasing himself from the bonds of an obligation undertaken in a passing mood of generosity and good intentions.

³⁹ See R. Yaron, Gifts in Contemplation of Death, etc., op. cit. supra n. 35, and in particular Ch. XXII, and see Rakover, N., “Jewish Law Sources in the Gift Law” (1968) 24 HaPraklit 496Google Scholar (see Part II of this note).

⁴⁰ See n. 3 ante.

⁴¹ See the Rechter case, supra n. 10.

⁴² Note Prof. Yaron's statement that “the step from bilateral gift to unilateral testament was never taken in Jewish law” and his explanation thereof (op. cit. supra n. 35, Ch. IV).

⁴³ See Snir v. Faleh, supra n. 10.

⁴⁴ See the note by Yadin, U. in (1968) 24 HaPraklit 494Google Scholar on the question: “How will the Custodian Law be Interpreted?”

⁴⁵ Michel, Jacques, Gratuité en droit Romain (1962).Google Scholar