¹ Friedman, W., Law in a Changing Society (Stevens, London, 1st ed., 1959) 391Google Scholar; (1945) 54 American Jurisprudence (hereinafter referred to as Am. Jur.) 525; Rubinstein, A., Constitutional Law of the State of Israel (Schocken, 1969, in Hebrew) 118Google Scholar; Craies, , Statute Law (Sweet and Maxwell, London, 6th ed., 1963) 422et seq.Google Scholar; Maxwell, , On Interpretation of Statutes (Sweet and Maxwell, London, 11th ed., 1962) 129Google Scholar, puts the matter in a slightly different way: “prima facie the statute is for the subject”, pointing out that today his statement seems exaggerated. Heskel, I., “Claims against the Government” in Selected Legal Problems (thesis, Faculty of Law, Hebrew University, 1958, in Hebrew) 98Google Scholar notes that the general presumption as to the basis of the royal prerogative is that the King is the fount of justice, law and religion, and also the supreme executive authority in the State, from which it follows the Crown may not be sued in its own courts. The Crown is incapable of committing a wrong or of ordering the commission of a wrong.

² The author of a note in (1971) 84 Harv. L.R. 869 does not shrink from labelling the accepted justifications for the preferred position of the State and her authorities (the so-called “inherent immunity of the sovereign”) as “empty phrases used for lack of substantive justification”.

³ Silberg, M., Such is the Way of Talmud (Shichpul, Hebrew University of Jerusalem, 1964, in Hebrew) 67–71.Google Scholar

⁴ Friedman, op. cit. supra n. 1 and Note in (1971) 84 Harv. L.R.

⁵ Kawanakoa v. Polyblank, 205 U.S. 349, 353 (1907): “A Sovereign is exempt from suit not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends … As the ground is thus logical and practical, the doctrine is not confined to powers that are Sovereign in the full sense of juridical theory but naturally is extended to those that in actual administration originate and change at their will the law of contract and property from which persons within the jurisdiction derive their rights” (emphasis added). A distinction is made between the federal government, itself a source of rights although Congress may intervene, and certain States which have a legislative body separate from the State, it being understood that the argument only applies to the former. In Israel, the Knesset is a body separate from the State and even if we accept the view advanced in this judgment (and it appears that many reject it) it is not to be applied. Further, it should be noted that according to the judgment there is no room for any right against the State, a proposition which, at least today, is basically untenable in Israel. According to Friedman, op. cit. supra n. 1, the dominant theory in the U.S.A. is that of equality between ruler and ruled, and it is ironical that the exemption of the State and its organs from statutes having general application is in practice inconsistent with such equality. It is also surprising that the courts which are vigilant in the extreme in controlling the administration, adopt a contrary attitude towards State privilege and immunity from proceedings. In U.S. v. Shaw 309 U.S. 495, 501 (1940) the rule was defended on the practical ground that it rendered government activity easier. This reasoning may be valid so far as the sovereign acts of the State are concerned (to the extent that they are actionable) but is surely unacceptable where the State is involved in a private lawsuit.

⁶ Intervention of the State in the field of private law arises in two ways: interference with the freedom of the individual under certain categories of legislation, and operations of the State as a commercial entity. As regards the first see: Eli v. Minister of Transport (1972) (I) 26 P.D. 105, 111 et seq.; Levine, A., “Freedom of Contract as a Social Anachronism” (1971) 27 HaPraklit 230, 372, 376–7Google Scholar; Zeltner, Z., “The Law of Sale” in Commentary on the Law of Contract (ed. Tedeschi, G., Harry Sacher Institute for Legislative Research and Comparative Law, Hebrew University, in Hebrew) 30Google Scholar; Malchi, A., “The Development of the Law in the First Half of the Twentieth Century” (1962) 5 Law and Economics 203, 207.Google Scholar As regards the second, see Panini, M., “Forms of Organization of Public Enterprises” (1955–1956) 6 Ro'eh Heshbon 200Google Scholar; “The Survey of Government Companies” (1969–70) 20 ibid. 619 et seq.; the Israel Statistical Abstract of the Central Bureau of Statistics which details the State's investments in shares and loans and the business enterprises of the State.

⁷ Maxwell, op. cit. supra n. 1 at p. 135, believes that the real reason for this exception is that those statutes do not tend to prejudice the rights, property or prerogative of the Crown. Craies, op. cit. supra n. 1 at p. 438, divides the exception into three classes of statutes: for the advancement of learning, education and the war against poverty (today largely in the public domain and thus obviously applicable to the State), for avoiding inequity (where the injured party would otherwise be left without a remedy, the King being the fount of justice), and for giving effect to the wishes of a grantor (today only of academic interest). He suggests that the exception generally is based on the view that, although not mentioned, the intention to apply the statute to the Crown arises from the very nature of the legislation.

⁸ Salmond, on Torts (15th ed., 1969) 562Google Scholar, describes the development. Also see Tedeschi, et al. The Law of Torts (Jerusalem, 1970, in Hebrew)Google Scholar § 232 per Barak who reviews the subject critically and expresses surprise at its application in the U.S.A.

⁹ Craics, op. cit. supra n. 1 at p. 444 points out that the Dominions adopted this solution before Britain.

¹⁰ See “Collection of a Foreign Nation Debt by Attachment of an International Bank Loan” (1969) 69 Colum. L.R. 897; U.S. v. Shaw 309, U.S. 495 (1940); National City Bank of New York v. Republic of China 348 U.S.: 356 (1954); Great Northern Life Ins. Co. v. Read 64 S. Ct. 873; 322 U.S. 47, 59 (1944). In Kansas v. U.S. 204 U.S. 331 (1906) it is stated that States of the U.S.A. have agreed to be subject to legal proceedings in disputes amongst themselves (e.g., border disputes). Such an agreement does not exist between them and the Federal Government and thus the latter may sue a State without its agreement, but not vice versa. Also see 28 U.S.C., § 2406, § 1346(b).

¹¹ For an explanation of “New Version” see Yadin, , “The New Version” (1972) 7 Is.L.R. 277.CrossRefGoogle Scholar

¹² Law and Administration Ordinance, 1948, secs. 11 and 15(a). (1 L.S.I. 9, 10).

¹³ Sec. 45 was new and followed the general principle underlying the interpretation of statutes in the U.K. with the difference that there the Crown is bound not only when legislation expressly so states but also when there is necessary implication. The section used “expressly” on the ground that attention had not been paid to the said rule in drafting statutes in the past.

¹⁴ Courts (Transitional Provision) Ordinance, 1948, sec. 9 (1 L.S.I. 24).

¹⁵ Per Judge Lamm in Kalir v. A.G. (1951–2) 5 P.M. 257 and A.G. v. Marcus (1953–4) 9 P.M. 364. Alternatively it was condemned as a feudal relic: per Sussmann J. in Bat Galim Mutual Society v. Bat Galim Beach Enterprises (1955) 9 P.D. 775; per Judge Gavison in Freedman v. A.G. (1951–2) 5 P.M. 418 (Judge B. Cohen concurring). Cf. Louson v. Domestic Foreign Corp. 337, U.S. 682, 703 and the minority opinion of Judge Frankfurter (two other judges concurring) in Great Northern Life Ins. Co. v. Read, supra n. 10 at 879. Sussmann J. in Freedman v. A.G., supra also said it was unbefitting a democratic state. An additional argument for the rejection of the section appears obiter per Judge Shere-shevski in (1949) 2 P.M. 387, where it is cited as an example of the privileges conferred upon the British Crown repealed under sec. 12 of the Law and Administration Ordinance: “Any privilege granted by law to the British Common-wealth, British Officials or British Subjects, is hereby declared to be null and void”.

¹⁶ Freedman v. A.G. supra; Judges B. Cohen and Sussmann in Kalir v. A.G. supra. The Supreme Court in Kalir v. A.G. (1954) 8 P.D. 339, held that the section is to be taken into account whether desired or not. This was quoted with approval by Agranat P. in Hugim Leumi'im v. Minister of Police (1968) (II) 26 P.D. 141, 209.

¹⁷ By sec. 16(g) of the Law and Administration Ordinance. As to the departure in the New Version from the original, see Apelbom, A.M., “Old Wine in New Bottles” (1961) 17 HaPraklit 122.Google Scholar The significance of the change from “Government to “State” will be dealt with subsequently.

¹⁸ (1966–7) 47 Divrei HaKnesset 863 (Professor Klinghoff er M.K.). The reply of the Minister of Justice is enlightening: “It is not to be supposed that the Military Industries (Ta'as) is subject to income tax and that a contract between Government Ministries is liable to stamp duty etc., and conversely, it is not to be supposed that the State will possess a special status as regards torts”. As we shall see, the legal position is the reverse. The State is liable to customs duty and purchase tax and to deduction of income tax at source. Contracts to which the State is a party are liable to stamp duty and the State occupies a special position as regards torts and other areas of private law. Can there incidentally be a contract between Ministries?

¹⁹ See the first reading debate on sec. 21(b) of the Contracts (Remedies) Bill, 1969, (1969–70) 56 Divrei HaKnesset 70.

²⁰ 6 L.S.I. 147.

²¹ 12 L.S.I. 138.

²² E.g. by the Copyright Act, Drayton, , Laws of Palestine III, p. 2475.Google Scholar Here the problem is more complicated since part of the subject is dealt with also in a Mandatory Ordinance, which has in turn been amended by local statutes.

²³ As for debts in International bw, see Sansour v. Consul General of Greece (1972) (II) 26 P.D. 328 at 335. per Sussmann J. See also Blum, , “De Facto Recognition and Diplomatic Immunities” (1973) 8 Is.L.R. 580Google Scholar, and as for the unenforceability of an illegal contract, see Berger v. State of Israel (1965) (II) 19 P.D. 228, 236–7.

²⁴ Israel case law is clearly binding: see, e.g. State of Israel v. Hadad (1970) (I) 24 P.D. 7 and Feinstein v. Minister of Education (1950) 4 P.D. 447, 450, where liabilities were imposed on the State, it being expressly stated that these had no basis in legislation. Indeed Israel case law is not included in the word “law” within the meaning of the Interpretation Ordinance but neither is it legislation and that is what is important for the purposes of sec. 42.

²⁵ Whether we accept or decline the view that the prerogative was transferred to Israel and is part of the law (Akzin, B., “Prerogative in the State of Israel” (1950) 6 HaPraklit 566Google Scholar, reprinted in (1969) 25 HaPraklit 216) or believe that there exists an original Israeli prerogative power (Rubinstein, op. cit. supra n. 1 at p. 230) there is no element in legislation to support its existence.

²⁶ For other consequences of the distinction between “law” and “legislation”, cf. Abulafia v. Zakan (1967) 56 P.M. 327, 334, holding that the agreement of a tenant to vacate does not constitute a cause for ejectment since the ground for ejectment must be derived from the enactment and a contract is not an enactment. See also Englard, I., “The Legal Competence and Guardianship Law” in Commentary on the Laws of Contract, op. cit. supra n. 5 at pp. 33–4Google Scholar, who takes the view that in the Legal Capacity and Guardianship Law, 1962, the term hok includes din, otherwise the result would be unacceptable with regard to denial of a person's legal capacity.

²⁷ So, for example, Zeltner, Law of Contracts (Avuka, 1962, in Hebrew) vol. 2, pp. 94, 172, thinks that the Common law constituting din continues to apply to restrictive arrangements which are exempt from the operation of the Restrictive Trade Practices Law (which does not apply to the State).

²⁸ In State of Israel v. Hadad (1970) (1) 24 P.D. 7 a claim against the State based on the Standard Contracts Law, 1964 was rejected but the claim was made again, this time based on case law.

²⁹ Two possibilities exist in principle for avoiding the above absurd results: (a) The Interpretation Ordinance deals only with legislation and so no conclusion can be drawn therefrom with regard to din. Sec. 42 provides that an enactment does not impose an obligation otherwise than “expressly” but it does not necessarily infer that a din does so, even implicitly if not expressly. In this manner, the principle of State privilege is extended, (b) In view of the strong criticism of the section, its substance must be scrupulously examined and an attempt made to limit its scope. This second approach seems preferable in view of the criticism of the section as well as because the first approach disregards the history of the section and its sources.

³⁰ Cf. para. 21 (a) of Schedule B to the Stamp Duty on Documents Law, 1961, which only exempts from duty a document signed in the name of the State but not a document to which the State is a party when sec. 22 of the Law applies making the State liable for stamp duty.

³¹ In Guardian Eastern Insurance Co. Ltd. v. Otiar Mipalei Yam Ltd. (1962) 16 P.D. 1133, 1135 et seq., Witkon J. discusses whether notification of a certain act of delegation is din and determines that din includes an enactment, an enactment includes a regulation, a regulation includes a notification and thus a notification is din, a conclusion “so generally accepted that it requires no de monstration”. An interesting comment with regard to the State's assumption of liability is to be found in sec. 4 of the Emergency Order (Rate of Compulsory Payment on Import of Foods), 1962, according to which the Controller of Foreign Exchange (a State authority) must confirm to the Collector of Customs Duty (another State authority) that the Government (a third State authority) has accepted a certain obligation and in the absence of such confirmation—the obligation is invalid. See further regarding “State undertakings” D. Potchebutzky, “The Levy on Owners of Goods not Released from Customs” (1961–2) 12 Ro'eh Heshbon 151, 152. In Bivas v. State of Israel (1970) (I) 24 P.D. 650, the State assumed a contractual liability by letter and even regarded itself bound by a letter of someone unauthorized to assume a liability in its name.

³² 6 L.S.I. 45.

³³ 22 L.S.I. 257: “The government is empowered to do in the name of the State, subject to any law, any act whose commission is not imposed by law on another authority”. The court recognized a general authorization of this kind in El Saroge v. Minister of Religion (1963) 17 P.D. 188 and Hugim Leumi'im v. Minister of Police (1970) (II) 24 P.D. 141, 211.

³⁴ Miller v. Minuter of Transport (1961) 15 P.D. 1989. Cf. the note in (1971) 84 Harv. L.R. 873.

³⁵ The term “expressly” in sec. 42 will later be discussed in detail.

³⁶ Dori, S., “The State as Litigant” (1959) 15 HaPraklit 159, 173.Google ScholarA.G. v. Development Authority (1958) 16 P.M. 240 and on appeal (1959) 13 P.D. 722. Craies, op. cit. supra distinguishes, by adverting to Tomiin v. Hannaford [1949] 2 All E.R. 327, between a commercial corporation under government control which is independent because the intention is to create a body to which private law applies (in casu a corporation doing business with traffic) and between other bodies. On the other hand, in Commissioner of Works v. Lantyfridd [1920] 2 K.B. 233, it was held that in spite of the fact that “the Commissioner of Works” is a corporation, when he acts as an agent of the Crown he enjoys Crown immunity. Craies also mentions the rule that immunity does not apply to the Sovereign when the rights in issue are such that there is no difference between the Sovereign and other citizens, i.e., immunity applies only in his capacity as Sovereign; but from the examples given it appears that the reference is to the private property of the King and not State property. See also Bank Voor Handel v. Slatford [1952] 1 All E.R. 314, 319.

³⁷ Panini, op. cit. supra n. 6.

³⁸ The Health and Tourist Authority Bill, 1971, is an extreme and amazing example. The Authority was to be dependent on the State for everything and yet be a corporation.

³⁹ At this point an additional test may perhaps be mentioned, which once existed for establishing the connection between a body and the State: in (1940) 8 Ct. L.R. 36 it was held that the question whether a given institution is a government department may be answered by a government notification. In that case the Government had given no notification of any sort and so it was held that the Custodian of Enemy Property was not a government department.

⁴⁰ Belom v. Israel Lands Administration (1967) (I) 21 P.D. 109.

⁴¹ Development Authority v. A.G. (1959) 13 P.D. 722.

⁴² E.g., sec. 2 of the Bank of Israel Law, 1954 (8 L.S.I. 163).

⁴³ Barak, in his Lectures on Corporation Law p. 8 et seq., gives as examples the State, an Ottoman Association and a competent Authority. See also Belom v. Israel Lands Administration supra n. 40.

⁴⁴ Barak, loc cit.; Proccacia, , The Corporation: Its Nature and Creation (Avuka, 1965, in Hebrew) 41.Google Scholar For different types of legal capacity see I. Englard, op. cit. supra n. 26 at pp. 12–14, 25–30. In addition it is clear that every corporation has specific limitations which flow from the object of its establishment.

⁴⁵ Cf. A.G. v. Haifa Municipality (1958) 12 P.D. 1745, where the right of the State to exemption from rates on police service-dwellings was in dispute. It was held that the provision of such dwellings was beneficial to the State since to live there was part of a policeman's duties, thus, the dwellings were occupied by the State and not by the policeman.

⁴⁶ Secs. 2(b) and (d) of the Absentees' Property Law, 1950 (6 L.S.I. 63); sec. 21 of the Interpretation Ordinance. See also Hevrat Hachsharat Hayishuv Ltd. v. Isha Shakvua Bros. (1951) 3 P.M. 433; Bank Kluger v. Custodian of Absentees' Property (1952) 6 P.M. 478.

⁴⁷ In A.G. v. Pecham Hevra l'Iskei Pecham Yisrael Polania Ltd. (1952–3) 8 P.M. 250, 254–6, Judge Touvin decided that the fact that the Custodian has the character of a government department does not mean to say that it is a part of the Government since the intention was to create a legal personality. Of course there is a logical inconsistency in the Custodian's being both a government department and a corporation. The judge's dictum it is suggested, was confused because it was influenced by English doctrine and what he really wished to say was that since the Custodian is a corporation no importance attaches to governmental supervision, budgetary control, appointment of staff, etc. It may be noted that in the enactment which the Absentees' Property Law replaced it had been expressly provided that the Custodian was to be treated like a government department for various matters including sec. 45 of the then Interpretation Ordinance (now sec. 42). The omission of this provision from the present Law, together with the powers granted to the Custodian, conclusively proves the intention of the legislator to create a corporation.

⁴⁸ Sec. 2(c). See also A.G. v. Steiner (1949) 1 P.M. 556.

⁴⁹ Yifrah, S., The Law Relating to Custodians (1953, in Hebrew).Google Scholar

⁵⁰ Ibid., p. 27. It is the same with regard to the Development Authority (see supra n. 41) and theoretically with many other authorities. According to sec. 2 of the Procedure (Participation of the Attorney General) Ordinance [New Version], every corporation acting under law may be represented by the Attorney General.

⁵¹ The Custodian of Absentees' Property v. David (1956) 10 P.D. 776, is an example of the Custodian and the State being on opposite sides and represented by different advocates. See also Hassin v. State of Israel et al. (1962) 16 P.D. 561 where the parties were represented by different deputies of the State Attorney.

⁵² Yifrah, op. cit. at pp. 31–4. A.G. v. Pecham … supra n. 47.

⁵³ Thus the release and delivery of property to the heirs of the original owner does not amount to succession and is exempt from estate duty: Kleiner v. Director of Estate Duty (1960) 14 P.D. 2521 (The Estate Duty Law has since been amended). See also Rejwan v. Director of Appreciation Tax (1949–50) 2 P.D. 147, on the implications of the independence of the Custodian with respect to liability for Land Appreciation Tax.

⁵⁴ The Administrator General Ordinance, 1944. Sec. 4(2) prescribes that the Administrator is a corporation sole “with perpetual succession and an official seal”, able to sue and to be sued in that name.

⁵⁵ In re Moshe Lipner (1949) 4 P.M.S. 74; Levi Feingold v. Administrator General (1951) 5 P.D. 1180, 1185. See also supra n. 47.

⁵⁶ 13 L.S.I. 258.

⁵⁷ E.g., Hevrat Neuman Batet Megurim LeHaskara Ltd. v. State of Israel, Investment Centre et al. (1971) (II) 25 P.D. 566.

⁵⁸ Parcel 32 in Block 10865 Ltd. v. Bnei Akivah (1952–3) 8 P.M. 405; Sansour v. Consul General of Greece (1972) (II) 26 P.D. 328, 333.

⁵⁹ Under the General Agricultural Council Ordinance, 1948 (I L.S.I. 44).

⁶⁰ Control nonetheless exists since the Government appoints the members of the Board and convenes the meetings.

⁶¹ The Auditors' Law, 1955 (9 L.S.I. 27).

⁶² Its decisions may however be questioned by way of appeal to the Supreme Court: sec. 14(d) of the Auditors Law, 1955 (9 L.S.I. 27).

⁶³ The proposition that every collection of persons not being a body corporate forms a part of the State for the purpose of sec. 42 is, of course, preposterous.

⁶⁴ As opposed, for example, to the Israel Bar which as a corporation, holds elections and is empowered to make regulations.

⁶⁵ The Engineers and Architects Law, 1958 (12 L.S.I. 124).

⁶⁶ 5 L.S.I. 72.

⁶⁷ Secs. 4, 7 and 10 of the Law.

⁶⁸ But for this conclusion an absurd situation would arise: sec. 11 of the Law provides that the provision of shelters and sec. 28 that regulations concerning the training of workers in factories bind the State. Since it is obligatory to obey the instructions of HAGA, it would follow that a law enacted by the State obliges it to obey its own instructions!

⁶⁹ The grant of powers by statute is in fact the conceptual justification for the independent discretion of a competent authority within the sphere of its authority: see Garbelski, N., “The Giving of Instructions to a Competent Authority” (1971) 1 Iyunei Mishpat 181, 195.Google Scholar In many cases, an authority is given power to institute legal proceedings, effect forfeiture and impose fines etc., all legal acts. Examples of relatively rare powers are illustrated by sec. 10 of the Welfare Services Law, 1958 (12 L.S.I. 120), authorizing the Minister of Welfare to enter into agreements regarding maintenance with persons liable therefor and sec. 86 of the State Service Pensions (Consolidated Version) Law, 1970, empowering the Finance Minister to make contracts. It may be inferred from judicial observation that at least a Minister is a legal personality who may be impeached for contempt of court: Deoud v. Minister of Defence (1951) 5 P.D. 1658; see also Harnon, , Contempt of Court by Disobedience (Akademon, Hebew University of Jerusalem, 1965, in Hebrew) 276Google Scholar, noting that this is also the law in England.

⁷⁰ See sec. 21 of the Interpretation Ordinance.

⁷¹ Landau, , “Law and Discretion in Legal Process” (1969) 1 Mishpatim 292, 304Google Scholar; Olshan J. in Sachs v. Minister of Industry and Commerce (1952) 6 P.D. 696, 702 and Agranat P. in Lansky v. Minister of Interior (1972) (II) 26 P.D. 337, 354, believe that a competent authority should be viewed as a judicial body separate from the State, with the function of balancing conflicting interests of the individual and the State. Garbelski op. cit., supra n. 69 at p. 183, also reaches this conclusion. A good illustration of the independence of a competent authority and the powers vested in it arises when there is a conflict of interest between it and the State. In Malke v. Assessment Officer (1957) 11 P.D. 219 a State employee requested the Assessment Officer to direct the State to deduct at source lesser amounts from his salary. The State is expressly obliged to make deductions at source under sec. 164 of the Income Tax Ordinance. It is possible therefore to imagine with some ease a dispute between the State and the Assessment Officer as to the amount to be deducted, the date when it is to be passed on to the Officer or the manner of rendering a report of the deduction.

⁷² As already mentioned this is also the conclusion of Prof. Barak, see supra n. 43.

⁷³ Bat Galim Ltd. v. Bat Galim Beach Enterprises (1955) 9 P.D. 775, 777. Cf. Hamgaper Ltd. v. A.G. (1959) 14 P.D. 705, 709. See also sec. 38 of the Ports Authority Law according to which “The State will transfer to the authority … every right or benefit”.

⁷⁴ Sabu v. Military Governor of Yafo (1949–50) 2 P.D. 701, 706. A similar view is advanced with regard to immunity from proceedings in the note in (1971) 84 Harv. L. R. 869, where it is said that the immunity (in that case from building regulations) applied only to a body performing a compulsory duty under the law and not to one which indeed has power and authority but not a duty.

⁷⁵ Afriat v. A.G. (1961) 15 P.D. 1134, 1148–9.

⁷⁶ Shechadah v. Chilo (1966) 20 P.D. 617, 622, Srig Adin v. Municipality of Tel Aviv (1957) 11 P.D. 1110. In Van Mirop (1957) 11 P.D. 659, it was expressly stated that if there were arbitrariness, the court would intervene despite sec. 42. In Dagan Grain Silo Ltd. v. Minister of Commerce and Industry (1972) (I) 26 P.D. 292, 298, it was decided that “if the authority is in breach of this duty, this is a ground for an intervention and it makes no difference whether the petitioner has a right conferred by law or the act is to be carried out at the discretion of the Authority”. See also Izik v. Minister of the Interior (1972) (II) 26 P.D. 33, 35, where Sussmann, D. P. held that “the granting of a discretion to an executive authority means the power to choose between different possible solutions appropriate to the matters coming before the authority. But the relevant authority must exercise its discretion in accordance with certain rules”.

⁷⁷ Morer v. Regional Council of Upper Galilee (1966) (III) 20 P.D. 645, 656.

⁷⁸ Bat Galim Ltd. v. Bat Galim Beach Enterprises Ltd. and Hamgaper v. A.G. supra n. 73. It will be noted that in A.G. v. Bar Ilan (1957–8) 15 P.M. 230, similar on the facts to Hamgaper, the Court came to the opposite conclusion, without adverting to sec. 42. For the English law, see Craies, op. cit. supra n. 1 at p. 423.

⁷⁹ E.g., secs. 38 and 39 of the Ports Authority Law, 1961, which transfers to the Authority “every right of the State”.

⁸⁰ E.g., secs. 25 and 26 of the Health and Tourist Authority Bill, 1971, H.H. no. 183 and sec. 24 of the Streams and Springs Authorities Law, 1965 (19 L.S.I. 149) and secs. 36–38 of the Broadcasting Authority Law, 1965 (19 L.S.I. 103).

⁸¹ E.g., a guarantee embracing a duty of payment and a right to indemnity; the right to hold property subject to liabilities in the field of taxation, of torts, of building regulations, etc.

⁸² In Jewish law it is usual to consider the substance of the legal act involved with regard to the rule that a person may be benefited but not obligated in his absence. Gulak, , Fundamentals of Jewish Law (Dvir, Tel-Aviv, 1923, in Hebrew) vol. IGoogle Scholar, § A. chap. II, para. 12; ibid., vol. II § B, chap. II, para. 88. Sec. 7 of the Contracts (General Part) Law, 1973, raises the same problem. See, Shalev, , “General Comments on Contracts (General Part) Law, 1973” (1974) 9 Is.L.R. 274.Google Scholar

⁸³ Maxwell, op. cit. at p. 136. Craies, op. cit. at p. 437 says that originally this rule applied only to the King in his private capacity since there is no reason why in this capacity he should be prejudiced as compared with other persons. It should be mentioned that in A.G. v. Shoham Sea Services Ltd. (1959) 19 P.M. 89, the Court could not find any authority for this view.

⁸⁴ See notes to 1 28 U.S.C. 1346 and 28 U.S.C. 2406.

⁸⁵ A.G. v. Shoham Sea Services Ltd. supra n. 83.

⁸⁶ This suggestion is supported by the Plant Protection Law, 1956, from the operation of which army camps are also excluded but which is expressly made to apply to the State. It is surprising that in one case the legislator saw fit to spell out its intentions and in another merely to hint at them.

⁸⁷ Bialer v. Minister of Finance (1953) 7 P.D. 424, as regards presumption of law; Batzul v. Minister of the Interior (1965) (I) 19 P.D. 377, as regards presumption of fact; but see the criticism of this doctrine in Goldberg, “An Error which Escaped the Legislator” (1968) 23 HaPraklit 13.Google Scholar

⁸⁸ Engineers' Union v. State Service Commission (1970–71) 2 Labour Courts Reports 58, 69. See also below the discussion on the labour laws.

⁸⁹ 11 L.S.I. 149.

⁹⁰ As to the sale of State property by the customs authorities, see A.G. v. A.D. Silva [1953] A.C. at 461, where it was held that the Ceylon Customs Ordinance does not apply to the State. We shall return to this case when we deal with the State's liability for tax though it should be indicated at this stage that the relevant laws in Israel and Ceylon are not identical.

⁹¹ See sec. 15 of the Law (24 L.S.I. 50).

⁹² (1972) S.H. p. 62 (not yet published in English).

⁹³ As to legislation by reference compare Rubinstein, op. cit. supra n. 1 at p. 59.

⁹⁴ This is also the conclusion of Judge Lamm in A.G. v. Marcus (1953–4) 9 P.M. 363. Compare the language of r. 56 of the Civil Procedure Rules, 1963.

⁹⁵ Paras. 16 (3) and 20 (3) of the Royal Instructions dated 1.1.1932 (Drayton, Laws of Palestine II, p. 2664) prescribe: “Each different matter shall be provided for by a different ordinance, without intermixing in one and the same ordinance such things as have no proper relation to each other, and no clause is to be inserted in or annexed to an ordinance which shall be foreign to what the title of such ordinance imposes; and no perpetual clause shall be part of any temporary ordinance”.

⁹⁶ According to the Bill of the Mandatory Ordinance of 1945 this section “follows the general principle underlying the Interpretation of Statutes in the U.K.” and indeed English, Scottish and American law refer to the corresponding rule as a rule of interpretation: Craies, op. cit., at p. 421; Walker, , Scottish Private Law (Clarendon Press, Oxford, 1970) 16Google Scholar; (1945) 54 Am. Jur. sec. 8 p. 525.

⁹⁷ Maxwell, op. cit., at p. 134; the example given is a section allowing the imposition of costs on a party to a lawsuit, whilst another section mentions the Attorney General as a party. The Court deduced from this that the statute allows the imposition of costs on the State. Craies, op. cit. at p. 42, expressly states that necessary implication is sufficient.

⁹⁸ 54 Am. Jur. sec. 8, p. 525 requires it to be “expressly named” or “included therein by necessary implication”.

⁹⁹ Cf. ibid.: the rule assists when the object of the statute is in doubt but the application of a statute to the State cannot be doubted where its object obliges this merely because the State is not mentioned therein.

¹⁰⁰ In Development Authority v. A.G. (1960) 14 P.D. 722, Landau J. suggests a deliberately narrow interpretation of the section, Agranat and Sussmann JJ. concurring. See also A.G. v. Development Authority (1958) 16 P.M. 240. Olshan J. also favoured this trend of restrictive interpretation in Sabu v. Military Governor of Yafo (1949) 2 P.D. 701, 706.

¹⁰¹ Maxwell op. cit. at p. 275. See also Shemesh and Bakal v. Registrar of Companies (1971 (I) 25 P.D. 503, 513.

¹⁰² For the meaning of the term legal act, see I. Englard, op. cit. supra n. 26 at p. 24 et seq.

¹⁰³ See Guardian Eastern Insurance Co. Ltd. v. Otzar Mif'alei Yam Ltd. (1962) 16 P.D. 1133, 1136, 1138 and Friedman, op. cit. supra n. 1 at p. 391. In the U.S.A. a distinction is customarily made between proprietary and governmental acts: “Immunity of Foreign Governmental Instrumentalities” (1957–58) 25 Chicago L.R. 179–80. Likewise courts in Italy, Belgium and Egypt have held that the manufacture and supply of boots and ammunition to the army, the leasing of a villa to an embassy etc. are to be regarded as private law acts: “Collection of a Foreign Nation Debt…” op. cit. supra n. 10. The author of the note criticizes these judgments, in the opinion of the writer, unjustly. See also Pokrovski, , The Fundamental Problems of Civil Law (Jerusalem, 1923, in Hebrew) 3.Google Scholar It is also worth mentioning that so far as a foreign sovereign's immunity from suit is concerned, American courts proceed according to the ruling of the State Department of 1952 and allow immunity only to acts of State other than commercial acts: 26 Dept. State Bull. 984.

¹⁰⁴ Migrash Msudar Ltd. v. Minister of Finance (1972) (I) 26 P.D. 449, 452; Garbelski op. cit. supra n. 69 at pp. 182, 189 also deduces that two types of powers exist—ministerial and discretionary. Rubinstein, , Jurisdiction and Illegality (Clarendon Press, Oxford, 1965) 161Google Scholar distinguishes between a discretionary power and an obligatory power whose exercise is subject to conditions, but the existence of conditions does not invalidate our distinction. A finding that certain conditions exist is probably the discretionary part of a given power, and the duty to act when the conditions are fulfilled is the ministerial part.

¹⁰⁵ 50 Corpus Iuris Secundum 558 defines “judicially” as the exercise of a discretion as distinguished from a ministerial power. See Naus v. State of Israel (1973) (I) 27 P.D. 492–5 holding that a mandatory power (of a court) is identical with an administrative power whilst a discretionary power is identical with a judicial power. See also Abadi v. State of Israel (1955) 9 P.D. 199, 210.

¹⁰⁶ Nor is a court bound to reach a certain conclusion which is the only correct conclusion but may choose between a number of possibilities. See Raz, , “Legal Principles and Judicial Discretion” (1970) 2 Mishpatim 317Google Scholar and Landau, , “Law and Discretion in the Doing of Justice” (1969) 1 Mishpatim 292, 296–8.Google Scholar The situation resembles that of an administrative authority; Izik v. Minister of the Interior (1972) (II) 26 P.D. 33, 55; Lansky v. Minister of the Interior (1972) (II) 26 P.D. 337, 453–5. See also Klein, C., “The Lansky Case” (1973) 8 Is.L.R. 286.Google Scholar

¹⁰⁷ Again, but for a different reason we reach the conclusion that sec. 42 constitutes in fact a rule of interpretation.

¹⁰⁸ See sec. 63 of the Civil Wrongs Ordinance. The rule in Shechadah v. Chilo, supra n. 76, does nothing to alter the position since obligatory powers were not discussed in that case. See also Salmond, on Torts (15th ed., 1969) 565Google Scholar and Tedeschi et al., Law of Torts supra n. 8 at § 237 per Barak. The matter is nevertheless not free from doubts: see infra n. 170 and text thereto.

¹⁰⁹ But for remedies see U. Yadin, “The Contracts (Remedies for Breach of Contract) Law, 1970” in Commentary on the Law of Contracts op. cit. supra n. 6, at § 4, who thinks that as regards the substance of a contract the law confers upon the parties, qualified freedom.

¹¹⁰ See supra n. 34.

¹¹¹ Sec. 105 of the Companies Ordinance.

¹¹² See Potchebutzky, J., “Dismissal of Servants of Local Authorities” (1972) 2 Iyunei Mishpat 173, 177–8.Google Scholar

¹¹³ The Petroleum Law 1952, sec. 40 (6 L.S.I. 129).

¹¹⁴ (1972) S.H. no. 668, p. 175 (The English version has not yet been published). Under sec. 19 the provisions of the original contract continue to apply.

¹¹⁵ Sec. 18.

¹¹⁶ As to soldiers see Oved v. Minister of Defence (1969) (I) 27 P.D. 169, 171.

¹¹⁷ The State Guarantees Law, 1958 (12 L.S.I. 163), The Foreign Trade Guarantees Law, 1959 (13 L.S.I. 244) and the Mortgages Guarantee Law, 1952 (6 L.S.I. 63).

¹¹⁸ 21 L.S.I. 41.

¹¹⁹ (1965) (II) 19 P.D. 228.

¹²⁰ 17 L.S.I. 51. See Hecht, A., “The Israel Law in Standard Contracts” (1968) 3 Is.L.R. 586.Google Scholar

¹²¹ (1973) S.H. no. 706, p. 196 (not yet published in English).

¹²² Cf. Alkali v. State of Israel et al. (1969) 66 P.M. 89 where the delivery of defective apartments contrary to contract by the Ministry of Housing was discussed. See also Ben Yosef v. A.G. (1959) 19 P.M. 76, 91, 94, 100.

¹²³ State of Israel v. Hedad (1970) (I) 24 P.D. 7. The application of the Law to the State was only rejected here on factual grounds.

¹²⁴ 13 L.S.I. 159. See also Kestenbaum, L., “Israel's Restrictive Trade Practices Law: Antitrust Misadventures in a Small Developing Country” (1973) 8 Is.L.R. 411.Google Scholar

¹²⁵ 12 L.S.I. 24.

¹²⁶ E.g., the Control of Goods and Services Order (Maximum Price for Grey Portland Cement), 1972 ((1973) K.T. no. 2916, p. 88).

¹²⁷ See, e.g., the series “Tax without a Law” by Eli Raviv in “Ha'aretz” March 1972, or the evidence of offences under the Defence (Finance) Regulations committed by the State and published in the press.

¹²⁸ Dagan Grain Silo Ltd. et al. v. Minister of Commerce and Industry (1972) (I) 26 P.D. 292. See also supra n. 122.

¹²⁹ 11 L.S.I. 46.

¹³⁰ Employment Service Law, 1959 (13 L.S.I. 29).

¹³¹ Collective Agreements Law, 1957 (11 L.S.I. 58), Work Safety Ordinance, Wage Protection Law, 1958 (12 L.S.I. 100), Women's Employment Law, 1954 (8 L.S.I. 128), Settlement of Labour Disputes Law, 1957 (11 L.S.I. 51).

¹³² Severance Pay Law, 1963 (17 L.S.I. 161).

¹³³ Discharged Soldiers (Reinstatement in Employment) Law, 1949 (3 L.S.I. 10).

¹³⁴ Netanya Municipality v. Berger (1971–72) 3 Labour Court Reports 177, 190 et seq.; Globe Travel Service v. Levi, ibid., 246, 252 et seq.

¹³⁵ See supra n. 18.

¹³⁶ Engineers' Trade Union v. State Service Commission (1970–71) 2 Labour Court Reports 58, 69.

¹³⁷ This Bill became law in 1972. (1972) S.H. no. 635, p. 70.

¹³⁸ E.g., the duty to deduct at source in the Income Tax Ordinance and in the Compulsory Loan Statutes and sec. 8 (b) of the Tenants' Protection (Consolidated Version) Law, 1972. But why were special sections enacted dealing with state employees in statutes which in any event apply to the State? See for example secs. 131 and 137 of the Patents Law, 1967. See also the discussion of the Tenants' Protection Law (Consolidated Version) 1972, supra.

¹³⁹ Theoretically bodies like the Public Works Department, the Railways and the Government Printer may carry out work for a private customer, but even then the State would be an independent contractor and not a servant.

¹⁴⁰ E.g., the Apprenticeship Law, 1953, sec. 35 (7 L.S.I. 86), the Male and Female Workers (Equal Pay) Law 1964 (18 L.S.I. 165), the National Insurance Law (Consolidated Version) 1968 (22 L.S.I. 114). A different formula having a similar meaning is: “A State employee shall be regarded in the same way as any other employee” which is to be found in the Hours of Work and Rest Law, 1951 (5 L.S.I. 125). See also the Health Insurance Bill 1973, sec. 105 (1973) H.H. no. 1077, p. 398.

¹⁴¹ E.g., as in the Tenants' Protection Law (Consolidated Version) 1972, or even in the legislation dealing with Labour laws, such as the Work Safety Ordinance [New Version], sec. 13.

¹⁴² See Aliasof, I., “The State Service Regulations—Do these Constitute a Labour Agreement?” (1968) 24 HaPraklit 345.Google Scholar

¹⁴³ 8 L.S.I. 175.

¹⁴⁴ 5 L.S.I. 53.

¹⁴⁵ 11 L.S.I. 58.

¹⁴⁶ 15 L.S.I. 214. It should be mentioned here that the Interest Law, 1967 (11 L.S.I. 46) does not apply to the State.

¹⁴⁷ 12 L.S.I. 129. As to prescription affecting the State's right to institute proceedings, see also the text to n. 72 supra and also Ami, H. Ben, “Prescription of the State's Rights in the Laws of Direct Taxes” (1969) 4 Quarterly Tax Journal (in Hebrew) 149Google Scholar, although this article in the main deals with the rights of the State as sovereign.

¹⁴⁸ Official Gazette, no. 566, Supp. 1, p. 21. Naturally the State cannot go bankrupt; the section reads: “except as provided in this Ordinance, the provisions of this Ordinance dealing with legal steps which may be taken against the property of a debtor, the law of preference of debts, validity of a compromise or arrangement and of release, will be binding upon the Government of Israel” (for “Government” read “State”).

¹⁴⁹ 12 L.S.I. 138. It will be noted that this law does not apply to the High Court of Justice and to appeal committees; these remarks apply also to restrictions on remedies against the State.

¹⁵⁰ 22 L.S.I. 210. § N of the Schedule (a suppletive provision) releases the arbitrator from being bound to substantive law. Does this section release him also from the provisions of sec. 36? It appears that an arbitrator may not ignore the provisions of the Arbitration Law even if he is released from the substantive law, since his authority derives from these provisions and accordingly the negation of the application of the Arbitration Law would invalidate his authority. It follows that sec. 36, like the remaining provisions, is effective and binding.

¹⁵¹ See e.g., Ha'etzni et al v. Ben Gurion (1957) 11 P.D. 403, where the procedural privilege of the State was rejected. By issuing personal orders against State employees, even the Contempt of Court Ordinance was effectively applied to the State, an ordinance which formally did not apply to the State. See Harnon, , Contempt of Court by Disobedience (Akademon, Hebrew University, Jerusalem, 1965, in Hebrew) 276.Google Scholar

¹⁵² The High Court of Justice generally refuses to circumvent this prohibition. The Condominium Representatives v. State of Israel. Summary of Cases (ed. Savir) vol. 6, p. 373. See also Rubinstein, A., “The Powers of the High Court of Justice” (1971) 1 Iyunei Mishpat 261, 274–5.Google Scholar But see Potchebutzky, op. cit. supra n. 112 at p. 188.

¹⁵³ (1959) 13 P.D. 1097. The court took cognisance of the injustice which had been done and so made an order halting sale (albeit conditional upon the furnishing of a guarantee), a solution which, with all due respect, was doubtfully within the court's authority.

¹⁵⁴ (1960) 14 P.D. 2284, especially at 2289.

¹⁵⁵ In fact this is the position regarding every sovereign: Sansour v. Consul General of Greece (1972) (II) 26 P.D. 328.

¹⁵⁶ (1969) (II) 23 P.D. 64.

¹⁵⁷ The processes of execution against the State which must pass through the Minister of Finance are also surprising in themselves: if the Ministry of Agriculture were unlawfully to take my hoe away and I were to succeed in a claim for restitution, why should it concern the Minister of Finance?

¹⁵⁸ State of Israel v. Elmekayem (1971–2) Summary of Cases (ed. Savir) 358. Reg. 3 of the Labour Courts (Procedure) Regulations, 1969 provides expressly that a claim by an employee (State servant) against the State shall be lodged in the place where the employee lives or works.

¹⁵⁹ E.g., Berger v. State of Israel (1965) 19 P.D. 228, 232. But see Edelman v. A.G. (1961) 15 P.D. 653, 658, where it is stated that the State may interview the witnesses of the opposing side, a course which is not generally regarded with favour. Harnon, Laws of Evidence (Academic Press, Jerusalem, 1970, in Hebrew) 567, takes the view that this dictum was obiter.

¹⁶⁰ In fiscal law the State is given priority over other creditors by the Taxes (Collection) Ordinance, the Bankruptcy Ordinance and the Companies Ordinance.

¹⁶¹ See Weisman, , “The Land Law, 1969: A Critical Analysis” (1970) 5 Is.L.R. 409 and nn. 105, 106.Google Scholar

¹⁶² See Zeltner, “Abuse of Rights” (1970) 2 Mishpatim 465Google Scholar; Goldenberg, A. “Trespass in Space” (1972) 2 Iyunei Mishpat 218.Google Scholar

¹⁶³ 19 L.S.I. 246 and 196.

¹⁶⁴ The principal laws, (1) as regards land, the Land Law, 1969 (23 L.S.I. 283), (2) as regards moveables, the Moveables Property Law, 1971 (25 L.S.I. 175), (3) as regards incorporeal rights, Law of Copyright (Drayton, , Laws of Palestine II p. 2475Google Scholar), Copyright Ordinance (ibid., vol. I, p. 389), Trademarks Ordinance (2 L.S.I. (N.V.) 292), the Patents Law, 1967 (21 L.S.I. 149), the Patents and Designs Ordinance (Drayton, , Laws of Palestine II, p. 1076Google Scholar).

¹⁶⁵ Sec. 163 of the Law.

¹⁶⁶ Sec. 7A Copyright Ordinance. In State of Israel v. Ackeman (1972) (II) 26 P.D. 259, the opportunity of discussing the application of copyright law to the State was missed, simply because the point was not raised.

¹⁶⁷ The Protection of Emblems Bill (1972) H.H. no. 982, p. 162, indeed deals with official emblems, but it is clear that an official institution may use its emblem as a trademark in the course of its commercial activities. At present the matter is dealt with in the Trademarks Ordinance.

¹⁶⁸ Cheshin, , Chattels in the Law of Torts (Magnes Press, Jerusalem, 1970, in Hebrew) 188, 197.Google Scholar

¹⁶⁹ Sec. 10 (18 L.S.I. 64). See also Compensation for Persons Injured in Road Accidents Bill, 1973. See critical analysis and English translation of the Bill in Englard, , “Reform of the Automobile Accident Compensation System” (1974) 9 Is.L.R. 234.Google Scholar

¹⁷⁰ S. Dori, “Liability of the State in Torts” (1960) 3 Law and Economics (in Hebrew) 101, 106–7. It is doubtful whether this is indeed so since if a law does not apply to the State where does the duty of which it is in breach arise from? More-over, sec. 63(a) qualifies the section by providing that no other person is entitled by reason of breach to any remedy specified in the Ordinance which, on its proper construction, is intended to exclude such remedy. Salmond, op. cit at p. 565, states that if the legislation which has been contravened does not expressly apply to the State, a claim against the State will be fraught with difficulty, but no authority is given.

¹⁷¹ Dori, S., “The State as Litigant” (1959) 15 HaPraklit 159, 166.Google Scholar It is doubtful if a clear provision restricting the possibility of granting relief may be ignored by an overnice interpretation of a substantive provision of law.

¹⁷² 15 L.S.I. 52.

¹⁷³ 19 L.S.I. 254.

¹⁷⁴ Guardian Eastern Insurance Company Ltd. v. Otzar Mif'alei Yam Ltd. (1962) 16 P.D. 1133.

¹⁷⁵ M'Orrer v. Upper Galilee Regional Council (1966) (III) 20 P.D. 645. See also Tedeschi et al. op. cit. at § 245 per Barak stating that only the enactments mentioned in the Schedule “have remained in force”. That, however, seems semantically imprecise and the intention is to preserve the force of the immunity provisions in these Laws.

¹⁷⁶ See Mor, D. “Are Restrictive Trade Practices Tortious?” (1967) 23 HaPraklit 78Google Scholar and also Tedeschi et al. op. cit. at § 59, n. 14 per Cheshin. The distinction between an amendment of the Civil Wrongs Ordinance and the creation of a civil wrong in a separate law is technical only. Thus the Land Bill, 1964, created a civil wrong whereas the Law, in its final form, amended the Civil Wrongs Ordinance.

¹⁷⁷ Tedeschi et al. loc. cit. also inclines to this view. See § 7, §§ 56–60 per Cheshin.

¹⁷⁸ Kvutzat Hachugim Beth Hashita v. Tribunal for the Prevention of Profiteering and Speculation (1951) 5 P.D. 113; Spaer, Toussia-Cohen & Co. v. A.G. (1963) 17 P.D. 1909; Gadisi v. A.G. (1966) (I) 20 P.D. 57, 72. See also Sagi, Y. “Criminal Responsibility of Corporations and Organizations” (1969) 1 Mishpatim 86.Google Scholar

¹⁷⁹ Cf. Witkon J. in Mizrachi v. A.G. (1960) 14 P.D. 1880, 1898, and see discussion of this case by Ginossar, S., “Autonomy of Corrective Law” (1974) 9 Is.L.R. 24.Google Scholar

¹⁸⁰ Aviv Yahloma Ltd. v. Inspector General of Police (1949–50) 2 P.D. 584, 588; per Olshan J.: “and if such person were to use force… he would commit a criminal offence … and what is true of a private person is also true of the police in their relations with the community”.

¹⁸¹ 19 L.S.I. 158.

¹⁸² Sec. 264 of the Municipalities Ordinance; sec. 258 of the Planning and Building Law, 1965.

¹⁸³ Sansour v. Consulate General of Greece (1970) (II) 26 P.D. 328, 336.

¹⁸⁴ Zamir, , Lectures on Administrative Law (ed. by Sheftelovitch, , in Hebrew) 17et seq.Google Scholar

¹⁸⁵ Witkon, and Ne'eman, , Tax Law (4th ed., 1969, in Hebrew) 4et seq.Google Scholar See also Tsur, Y. “The Validity of Foreign Fiscal Laws and Judgment” (1973) 29 Quarterly Tax Journal (in Hebrew) 9, 19.Google Scholar

¹⁸⁶ Witkon and Ne'eman, op. cit. at p. 6 et seq. See also State of Israel v. Yahalomei Keren Or Ltd. (1968) 41 P.M. 402, 408, and Jaffora Ltd. v. Broadcasting Authority (1971) (II) 25 P.D. 741.

¹⁸⁷ Sec. 8 of the Civil Procedure Amendment (The State as a Party) Law, 1958. Reg. 15 (1) of the Court (Fees) Regulations, 1967.

¹⁸⁸ Reg. 3 of the Labour Courts (Fees) Regulations, 1969.

¹⁸⁹ Secs. 17(a) (1) and 80 of the Traffic Ordinance [New Version] 1 L.S.I. (N.V.) 222.

¹⁹⁰ Reg. 1.22.0 of Schedule III of the Building and Planning (Application for Permit, Conditions and Fees) Regulations, 1970.

¹⁹¹ The Streams and Springs Authorities Law, sec. 15 (19 L.S.I. 149).

¹⁹² The Broadcasting Authority Law, sec. 29 (19 L.S.I. 103).

¹⁹³ The Ordinance applies also to the local councils of various kinds but not to Jerusalem or to places declared to be immigrant towns (secs. 3 and 5A).

¹⁹⁴ The Development Authority v. Rishon Le-Zion Municipality (1955) (III) 18 P.D. 629. In this interesting case the State and the Development Authority held land in common. The Municipality attempted to rely on a by-law under which it was entitled to collect all the rates from one of the joint owners. The Court held that since the State was exempt from general rates the Municipality was only entitled to one half of the rates, due from the Development Authority.

¹⁹⁵ 9 L.S.I. 85.

¹⁹⁶ The Customs, Excise and Purchase Tax (Abolition of Special Exemption) Law, 1957, sec. 3 (9 L.S.I. 149). This provision appears to abolish impliedly the provisions of sec. 9(b) of the Purchase Tax (Goods and Services) Law, 1952, under which, on sale of State property the duty of paying the tax falls upon the buyer. In A.G. v. A.D. Silva [1953] A.C. 461, the existence of a similar section was not mentioned and for this reason no analogy can be drawn for the position in Israel. The Director of Customs in Ceylon sold goods of the State which were lying unclaimed. It turned out that the State had also sold these goods and the buyer was compelled to sue for breach of contract. The Court held that the Customs Ordinance did not apply to the State and declined to deduce an implication to the contrary from certain sections releasing the State from various obligations, viewing these sections as regulating transactions between Ministries as such, not requiring the force of law for their proper conduct. With great respect, it seems that this view conflicts with the trend of interpretation in Israel, the principle that the State, especially when acting in a commercial capacity, is also subject to the law and with the reality that Ministries do not always act with complete propriety.

¹⁹⁷ The Stamp Duty on Documents Law, 1961, sec. 22 (15 L.S.I. 57).

¹⁹⁸ Ibid., para. 21 to Schedule II; and see Laver an v. Minister of Communications (1972) (II) 26 P.D. 188. The legislator also took care to provide exemption from stamp duty (but again not from the other provisions) in the case of a document issued by the State, where such exemption exists in any event. See sec. 9(a) of the State of Israel Bonds (Development Loan—Fifth Issue) Law, 1970 and sec. 9(a) of the State of Israel Bonds (Third Issue of Development Investments), 1970. These are only examples of a long series of identical enactments.

¹⁹⁹ The Foreign Travel Tax Law, 1950, secs. 3–4 (5 L.S.I. 12); the Travel Tax (Exemption) Order, 1970, K.T. no. 2540, para. 1, p. 1288 (President of the State) and para. 36a (Further Study under the Auspices of the Ministry of Labour, etc.).

²⁰⁰ The Property Tax and Compensation Fund Law, 1961, sec. 2(a) (15 L.S.I. 101). See the definition of “owner” in sec. 1.

²⁰¹ Secs. 15, 60 and 72 of the Law (17 L.S.I. 193).

²⁰² Nemtovitch v. Assessing Officer (1950) 3 P.D. 256 where Witkon J. stated that it is both reasonable and legitimate to think in advance of a method whereby liability to tax might be reduced.

²⁰³ See the dicta in Electra. (Israel) Ltd. v. Minister oj Commerce and Industry (1968) (II) 22 P.D. 551, 556 concerning discriminatory taxation between competitors.

²⁰⁴ E.g., Employment Service Law, 1959 and the Employment Service (Application of the Law to the State as Employer) Regulations 1960; the National Parks and Nature Reserves Law, 1963, sec. 46 (17 L.S.I. 184); the Explosives Law, 1954, sec. 22 (8 L.S.I. 144) and Firearms Law, 1949 (3 L.S.I. 61); the Weights and Measures Ordinance; the Standards Law, 1953 (7 L.S.I. 24); the Modular Law, 1973; the Wild Animals Protection Law, 1955 (9 L.S.I. 8); the Insurance Business (Superintendence) Law, 1951 (5 L.S.I. 142); the Citrus Fruit Control Ordinance.

²⁰⁵ (1964) (II) 18 P.D. 278.

²⁰⁶ See Rubinstein, , “The Standing of a Petitioner Who Claims Denial of Another's Rights in the High Court of Justice” (1962) 18 HaPraklit 499Google Scholar, and the observations of Cohn J. in Association of Lije Insurance Companies Ltd. v. Minister of Finance (1972) (I) 26 P.D. 230, 237.

²⁰⁷ See Akzin, , “On Conjecture in Political Science” (1966) 14 Political Science 272et seq.Google Scholar; Rubinstein, op. cit. supra n. 1 at p. 99 et seq., and the innumerable dicta in the case law. See also Harnon, , “Legal Aid for Accused and Suspect” (1973) 4 Mishpatim 567.Google Scholar

²⁰⁸ See, e.g. Gross, J., “When Does a Duty Exist to Issue a Prospectus to the Public?” (1972) 2 Iyunei Mishpat 68, 81.Google Scholar