1 See the Anatomy and Pathology Law, 1953 (7 L.S.I. 135) as amended in 1980 (35 L.S.I. 40).

2 See the Red Shield of David Law, 1950, (4 L.S.I. 127) sec. 5. The Magen David Adorn Regulations, 1952, relate to the statutes of the “National Blood Donors Organization”, 1981. According to these statutes a person can obtain blood insurance for himself and certain relatives by donating blood once a year. The statutes also allow for the purchase of collective insurance by communities, institutions and factories.

3 Attorney General v. A, B (a ward) et al. (1988) 42(ii) P.D. 661; Attorney General v. Chivichialli, 1983 (1) P.M. 225; A. v. B. 1988 (2) P.M. 177. Two unpublished cases were quoted in Dr.Frankel, D., “Incompetent Persons as Organ Donors” (1941) 3 Mishpatim 238, 240ff.Google Scholar: In re Minor S. Levy; Attorney General v. Nazira Levi.

4 Weisman, “Organs as Assets” in this issue, p. 610.

5 Ibid., at 615–620. This negative view was supported in principle by Elon J., then Deputy President of the Supreme Court, in A.G. v. A.B, supra n. 3. However, he recognized that it is sometimes the practice to give monetary compensation for blood, but pointed out the similarities between blood and bone marrow, both of which are regenerative materials in the body of the donor. He summarised the issue by determining that in general, financial compensation should be prohibited, and any exceptions should be allowed only after careful consideration. The other justices expressed no opinion on this matter.

6 27 L.S.I. 117; Cf. Weisman, supra n. 4, at 614–616, 619–620.

7 As in the case of “blood insurance”, which has official sanction, see n. 2 above.

8 Weisman, supra n. 4, at 620, says that even if, in the future, the law were to recognize organs as assets (i.e. alienable assets), claims for enforcement and restitution would still go unanswered. Such claims should be limited to enforcement of the operation to extract the organ from the donor and for restitution of the organ in kind in the event that the matter is discussed prior to the operation. This might also have been his intention. On the other hand, according to the said assumption concerning the current law, no reason emerges for the said disallowance when the discussion will take place after extraction of the organ.

9 See A. v. B., supra n. 3; A.G. v. Chivichialli, supra n. 3; Strunk v. Strunk 445 S.W. 2d 145 (Ky 1969). In a different vein, Dr. Frankeel, supra n. 3. In A.G. v. A.B., supra n. 3, the Court declined to approve the implantation of a kidney from the body of an incompetent person in the circumstances of the case, but it did not rule out the possibility of a different decision under the appropriate circumstances.

10 Supra n. 4, at 611–612, 620.

11 See the opinion of Sha'al J. in Attorney General v. Nazira Levi cited in his article (supra n. 4), at 620.

12 Enneccerus-Nipperdey, , Allg. Teil d Bürg. Rechts. (15th ed., 1959) vol. 1, sec. 121Google Scholar; Staudinger, , Komm. z. BGB (12th ed., 1978) sec. 90Google Scholar; Cupis, A. De, I diritti della personalita (Milano, 1959) vol. I, p. 160Google Scholar; Yiannopoulos, , Louisiana Civil Law Treatise, (St. Louis, Minn., 1980) vol. II, p. 3.Google Scholar See below, sec. I, for those who disagree with this prevailing view.

13 On these variations of the said position, see Dickens, B.M., “The Control of Living Body Materials”, (1977) 27 U. of T. L.J. 142, at 148–149, 180–183CrossRefGoogle ScholarPubMed; Skegg, P.D., “Human Corpses, Medical Specimens and the Law of Property” (1975) 4 Anglo-Amer. L.R. 412, at 417–420, 424CrossRefGoogle Scholar (note 39); Brams, M., “Transplantable Human Organs etc.”, (1983) 3 Am. J. of L. & MedicineGoogle Scholar; Dukeminier, J., “Supplying Organs for Transplantation”, (1970) 68 Mich. L.R. 811, at 847–850CrossRefGoogle Scholar; Notes: “The Sale of Human Body Parts”, (1974) 72 Mich. L.R. 1182, 1222, 1237; Scott, R., The Body as Property, (N.Y., 1981) 180.Google Scholar A similar comment would apply to many French and Belgian authors: see Dierkens, R., Les droits sur le corps et le cadavre de l'homme, (Paris, 1966) 62–65Google Scholar; Doll, P.J., La discipline des greffes, des transplantations et des autres actes de on concernant le corps humain, (Paris, 1970) 62seq.Google Scholar; Decocq, A., Essai d'une theorie generale des droits sur la personne, (Paris, 1960) 65seq.Google Scholar

14 See sec. 2 of the Penal Law, 1977 (L.S.I. Special volume).

15 As in the Pledges Law, 1967 (21 L.S.I. 44), sec. 1, 9(c), 17(4), 20.

16 In the Sale Law, 1968, (22 L.S.I. 107) as long as the reference is to the sale of ownership, “asset” or “object of sale” refers to the object of ownership; on the other hand, when the sale relates to a right that is not ownership, “asset” refers to the right itself. In this manner, the group of possible “assets” or “objects of sale” is heterog-enous, because its components belong to two different levels: on the level of ownership, not the right of ownership itself but the tangible assets (movable and immovable property) to which ownership applies, and beyond that field, rights. At the same time, according to the Gift Law, 1968, (22 L.S.I. 113) if the gift involves giving a property right, the “asset” is the object of this right, whereas in the other cases of a gift, it is the right that is given as a gift. Weisman, too, supra n. 4, at 610, after saying that “things which are the objects of property rights are “the various assets”, adds that “a person's assets, taken together, constitute his ‘property’”. In the last sentence, “assets” apparently refers to the subjects of property, on the one hand, and to the rights themselves beyond the area of property, on the other.

17 Weisman's statement in relation to sec. 109(a) of the Succession Law, 1966, (19 L.S.I. 58) to the effect that the term “asset” in its common use in legislation includes only things of which “ownership is possible” is quite surprising. Is the estate exhausted by ownership (or by property)? As for rights which pass to the heirs that do not constitute property, the intention of the said sec. 109(a) (see also secs. 7(d), 40(2), 84, 85, 109(b), 112, 126), in referring to the assets of the estate, can only be the rights themselves. At most, with reference to the rights of ownership (or to property rights as a whole) that are included in the estate, the question of whether the intention of the law was to tangible assets or to the rights in them may arise. Despite the doubt, we would not be in favour of the inelegant interpretation whereby here, too, a mixed group is created. On the view of the jurist — as opposed to that of the layman — concerning “asset and ownership” in connection with the system of rights and the composition of the property, see Larenz, , Allg. Teil d. deutschen Bürg. Rechts, (2nd ed., 1972) 247Google Scholar; von Tuhr, , Allg. Teil d. deutschen bürg. Rechts, 1910–1919, sec. 18 II.CrossRefGoogle Scholar

18 Examples of such a change can be seen in the abolition of slavery and in the Marxist doctrine which denies private ownership of means of production.

19 Weisman, supra n. 4, at 622–623 writes:

“Not only was the right to key-money of a statutory tenant who vacated his apartment not recognised in the past as an “asset”, but the Knesset even tried to fight the phenomenon of payment of key-money by means of the criminal law. However, reality prevailed over the law … Another example in Israeli law is the taxi-driver licence (“green number”). The statutory rules which applied in this context were designed to give […] the nature of a personal right…However, reality thwarted the legislator…” and he adds the case of import and export licences which are becoming alienable. Here, “asset” represents the possible profit from exploiting situations which previously were not susceptible to such exploitation. With respect to an obligatory right, the conduct of the debtor cannot be called an asset; this is also the case with respect to an administrative licence for some activity or another. Because of their alienability, Weisman as it were annexes to property those benefits which are not property rights nor any sort of rights (in the technical sense of the word). Our above disagreement with Weisman does not mean that we do not agree that the law ought to regulate the benefits in a similar fashion to its regulation of rights. Moreover, we, too, think it worthwhile that, apart from the traditional concept of property, a wider form of the concept be fashioned, which will include, in addition to the traditional categories, “new property” as discussed by Reich, C.A., “The New Property”, (1964) 73 Yale L.J. 733.CrossRefGoogle Scholar These considerations are not relevant to the concept and regulation of property in itself. A proposal of annexation as above in exchange for the exclusion of non-alienable rights (or non-convertible rights) from the area of property would presumably be accepted: either one or the other!

20 Weisman, previously discussed this question in “Basic Concepts in Property Law — A Critical Survey” (1981) 11 Mishpatim 41, at 70–72.Google Scholar We disagreed with Weisman on this matter, in “On the Right of Preemption in Property”, (1985) 36 HaPraklit 261, at 252–253.

21 See Volterra, E., Istituzioni di diritto privato romano, (Rome, 1961) 314–315.Google Scholar

22 23 L.S.I. 283.

23 25 L.S.I. 176.

24 Cf. for example, sec. 544 of the French Code; sec. 832 of the Italian Code; sec. 641 of the Swiss Code; sec. 1 of the First Part, chapter 8, of the Allgemeines Landrecht. As opposed to this, see, for example, sec. 903 of the BGB which describee only the practical right of the owners, with no hint of “legal usage”. This is also the position in sec. 654 of the Californien Code of 1872.

25 See, e.g. Austin, , Jurisprudence, (5th ed., 1911) vol. II, p. 789Google Scholar; Pollock, , A First Book of Jurisprudence, (5th ed., 1923) 179Google Scholar; Paton, , Jurisprudence, (4th ed., 1972) sec. 116, p. 517Google Scholar; Salmond, , Jurisprudence, (12th ed., 1966) sec. 44, p. 247Google Scholar; Pound, R., Jurisprudence, (1959) 5, at 128Google Scholar; Honoré, A.M., “Ownership”, in Oxford Essays in Jurisprudence (1st Series, 1961) 113.Google Scholar

26 See secs. 1 and 2 of the Transfer of Obligations Law, 1969 (23 L.S.I. 277).

27 See, e.g., Paton, supra n. 25, at 518; Salmond, Jurisprudence, supra n. 25, at 246, Honoré, supra n. 25, at 112, 113, 118; R. Pound, supra n. 25, at 125, 128; Planiol, , Traité elem. de droit civil, (2nd ed., 1928) vol. I, no. 2329, p. 772.Google Scholar

28 See Levontin, A., “What is a Property Right?” (1979) 9 Mishpatim 384Google Scholar, which we will discuss at length below.

29 Supra n. 20, at 71–72.

30 Supra n. 4.

31 Supra n. 28.

32 A similar thesis was posited at the time by Bekker, E.J., in Systeme Des Heutigen Pandektenrechts, 1886–1889, vol. IGoogle Scholar, sec. 41. It appears that in Germany there are no supporters of this view.

33 Even Levontin does not rule out the possibility of prohibiting or limiting alienability (see his article, supra n. 28, at 387, third paragraph). The question arises whether, according to his approach, such a prohibition or limitation does not exclude a right from the category of property rights.

34 Weisman, J., “Some Fundamental Concepts of Property Law: An Analytical Survey” (1986) 21 Is. L.R. 629, at 550–552.Google Scholar

35 Supra n. 20.

36 Ibid., at 72.

37 Supra n. 34, at 552.

38 Supra n. 28.

39 See also Weisman, supra n. 34, at 551: “…in the absence of specific statutory restriction, a property right is not restricted to the original recipient…”

40 We illustrated this in our abovementioned article (supra n. 20).

41 See Levontin, supra n. 28, at 387.

42 Civil Wrongs Ordinance [New Version] 1968 (2 L.S.I. [N.V.] 6).

43 22 L.S.I. 114.

44 In his article in this issue, supra n. 4, at 623, n. 52, Weisman quotes Reich's article (supra n. 19) and apparently accepts the property nature of licences awarded by the State. A more reserved view was expressed in his earlier article, supra n. 20, at 73, n. 141. According to his theory, he should have negated the property nature with respect to licences and other benefits in Reich's article when these were not alienable. In his article, Reich does not discuss property rights in their technical sense.

45 Salmond, , Jurisprudence, (7th ed., 1924) 266Google Scholar: “The true test of a proprietary right is not whether it can be alienated….” Salmond continues and concludes: “[The true test of a proprietary right is] whether it is equivalent to money; arid it may be equivalent to money, though it cannot be sold for a price”. The restriction on the property nature according to this view is moderate as compared to Levontin and Weisman's views, but it is doubtful whether we can even accept this. Is not the proprietary protection worthwhile, when the asset has no price? For example, with respect to a letter which has been received, or, for an example which touches upon our discussion here, a lock of hair which is kept as a memento, in which a particular person has an interest for personal reasons, but which is worth nothing to others? In the Movable Property Law, 1971, (supra n. 23) there is no such restriction on ownership.

46 See his previous article, supra n. 20, at 70–71.

47 See Salmond, , On Jurisprudence, (12th ed., by Fitzgeraid, P.F., 1966) 252.Google Scholar

48 Supra n. 20, at 7C.

49 See Weisrnar, supra n. 4, at 611; A. Levantin, supra n. 28, at 390.

50 Weisman, ibid., at 611–612.

51 21 L.S.I. 112.

52 For additional examples, see sec. 7(d) of the Succession Law, 1965 (supra n. 17); sec. 8 of the Wages Protection Law, 1958, (12 L.S.I. 100); secs. 135, 138 of the National Insurance Law [Consolidated Version] 1968 (supra n. 43); sec. 6 of the Museums Law, 1983 (37 L.S.1.132); secs. 96, 111 of the Bankruptcy Law [New Version] 1980 (3 L.S.I. [N.V.] 131); sec. 26 of the Severance Pay Law, 1963 (17 L.S.I. 161); secs. 24, 25 of the Cooperative Societies Ordinance, 1933 (Laws of Palestine, vol. 1, at 336).

53 See, e.g., Planiol in France, supra n. 27, vol. III, sec. 1525, at 302.

54 See “Homestead”, 40 Amjur 2d (1968) 115, sec. 4, 86; and see, on this institution and other cases of exemption from attachment in the United States: Cowans, , Bankruptcy, Law and Practice, (St. Paul, 1938) sec. 86, p. 470 ff.Google Scholar

55 See Tedeschi, supra n. 20, at 252. See other examples mentioned by Salmond in Jurisprudence, supra n. 45, at 6; Paton, supra n. 25, at 517.

56 See Zik v. State of Israel, (1978) 32(i) P.D. 662, at 664; Shlein v. Barak, (1981) 35(iii) P.D. 225, at 234. We discussed the said provision in the above article, supra n. 20, at 260, and in Tedeschi, G., “The Debts and Liabilities of a Deceased's Estate” (1976) 5 Iyunei Mishpat 14, at 29.Google Scholar

57 See the opinion of Sussman J. in Saig v. Azoulay, (1971) 25(ii) P.D. 62, at 65–66: “The widow has the said right of lease by virtue of sec. 115 vis-à-vis the creditors of the estate as well”.

58 See Reisman v. Waschein (1983) 37(ii) P.D. 813, at 826.

59 14 L.S.I. 48.

60 Ibid. Reservations according to sec. 2 of the said Law; see also State Property Law, 1951 (5 L.S.I. 45), sec. 5, as amended in S.H. 5732, at 150. See also sec 111 of the Land Law, 1969 (supra n. 22).

61 Supra n. 28, at 391.

62 Supra n. 2.

63 We touched upon this matter in our article “Agreements of the Public Administration with the Individual”, (1982) 12 Mishpatim 227, at 229.

64 See e.g., secs. 15–20 of the Land Law, supra n. 22 (which also apply to immovable property by virtue of sec. 8 of the Movable Property Law, supra n. 23; secs. 35–36, 49, 52 of the Civil Wrongs Ordinance [New Version], supra n. 42; sec. 383 (conversion) and sec. 452 (deliberate injury) of the Penal Law, 1977, supra n. 14). But it is possible that something which is not susceptible of ownership will not totally enjoy the protection of a particular law. In the Restoration of Lost Property Law, 1973 (27 L.S.I. 187), sec. 1, the “owner” of lost property is defined “to include a person who is entitled to possession thereof”. The same section defines lost property as “movable properly lost by its owners”. It seems that according to the statutory provision, something which is not susceptible of ownership is also not susceptible to loss.

65 See Weisman, supra n. 4, at 610–612.

66 See the definition of movable property in sec. 1 of the Movable Property Law, supra n. 23, sec. 1 of the Civil Wrongs Ordinance [New Version], supra n. 42, and sec. 1 of the Bailee Law, 1967 (21 L.S.I. 49).

67 See Planiol, et Ripert, , Traité elem. de droit civil, (Paris, 12th ed., 1932) vol. I, p. 774, sec. 2265Google Scholar: “La possession ne peut s'appliquer qu'aux choses suscetibles de propriete privee.”

68 A question approximating the said question deals with private possession of the land. This question is similar, but not exactly the same if we assume that the right of the State to the land is a right of ownership in the sense of private ownership (see n. 63 above). We have not found any discussion of the question of possession, but we believe that there is a call for such.

69 On the opinion of Dr. Frankel concerning possession of the said material, see below, in the following section. Frankel, , in his dissertation, The Legal Aspects of Organ Transplants, (Thesis submitted for the Degree of Doctor of Law, Jerusalem, 1976) 70Google Scholar, expresses the opinion that it is possible to acquire “a proprietary right of the type of possession” in organs, relying on the Australian case which, in fact, deals with a corpse: Doodeward v. Spence (1908) 6 C.L.R. 406.

70 On the liabiity of the giver of the gift, see Zeltner, Z., Israeli Contract Law, (Tel Aviv, 1976, in Hebrew) vol. 2, pp. 145–146Google Scholar; Rabello, , “The Responsibility of the Donor for Breach” (1983) 18 Is.L.R. 118, at 124–125.Google Scholar On liability of the donor in torts, cf. Halsbur/s, Laws of England, (5th ed., 1978) vol. 20Google Scholar, “Gifts”, sec. 27, pp. 17–18.

71 See Nordstrom, R.J., Law of Saks, (St. Paul, 3rd reprint, 1981) sec. 80, pp. 247–250.Google Scholar

72 28 L.S.I. 115.

73 33 L.S.I. 44.

74 See Friedman, D., The Law of Unjust Enrichment (Boursi Press, Tel Aviv, 1982) sec. 70.Google Scholar

75 Ibid., sec. 295, Friedman, discusses a case in which an organ is taken from a person's body without his consent in order to cure another person, and he sees a claim of unjust enrichment as possible. However, he apparently assumes that it is possible to bring a claim in torts, whereas in our opinion, sec. 6(a) rules out such a claim. We discussed the force of the provision in sec. 6(a) elsewhere (“Aspects of Unjust Enrichment” (1981) 11 Mishpatim 385, at 404 and “On the Efficacy of a Conditional Contract”, (1983) 18 IS.L.R. 7).

76 See D. Friedman, supra n. 74, secs. 676, 696, 711.

77 Levontin, supra n. 28, also talks about the two-fold trait of the right to maintenance, but in another sense. In his opinion, this is a property right to the extent that it is alienable, and a “personal” right (i.e. not a property right, and not an obligatory right) to the extent that it is not.

78 See Frankel, supra n. 69, at 71. Frankel, while stating that a person's rights to organs separated from his body for transplantation are the same as his rights over his body, does not indicate to which category the said rights actually belongs. In the Draft Individual and Family Bill published by the Ministry of Justice in 1957, this category is called personal rights (see part 1, chap. 3). This term is not unequivocally peculiar to the said rights, because the term “personal right” is customarily used in a number of senses (it is different when the categorization is that of laws rather than of rights. There is nothing wrong with the name “laws of persons”, which is not ambiguous). The reservation to the terms suggested by Levontin, supra n. 28, at 388: “Basic rights or fundamental human rights” and Carbonnier, , Droit Civil, (1982) vol. I, p. 333 and 348Google Scholar, i.e. “droits primordiaux”, an expression borrowed from the Portugeuse Civil Code of 1867, sec. 359, p. 2383 is of another type. When we deal with the relations of private law (Levontin and Carbonnier discuss these relations in the abovementioned publications), the required category is that which is parallel to the other recognised categories of rights in private law (property rights, obligatory rights, family rights) and is complementary to them, according to the classification based on the different interests of the rights. On the other hand, the above versions do not necessarily indicate the interest of the rights but their status. The terms used by Levontin, in particular, are those current in constitutional law, as opposed to private law. According to their interest, the said basic rights are liable to concern a person's individual freedom, freedom of property, freedom of contract and freedom of marriage. A relationship parallel to the one existing between some of the human rights in constitutional law and the laws of persons in private law is liable to exist between some of the above rights and between other laws in private law, such as property law and laws of obligations.

79 In West Germany too, as opposed to the prevailing view (supra n. 12), some hold that a person's right to his body as a personal right continues to apply to parts of the body which have been separated: see Forkel, H., “Verfügungen über Teile des menschlischen Körpers” JZ 74, 593, 595Google Scholar; Jansen, N., Die Blutspende aus Zivilrechtlicher Sicht, Jur. Dies. (Bochum, 1978) 125Google Scholar; Klusemann, M., Das Recht des Menschen an seinem Körper, Jur. Dise., (Leipzig, 1907) 34Google Scholar; or it continues, as long as it has not been waived, as a right concurrent with the right of ownership: see Schunemann, H., Die Rechte am menschlichen Körper, (Frankfurt am Main, 1985) 86.Google Scholar

80 Supra n. 69, at 71. On the other hand, he attributes to a person from whose body an organ has been extracted for transplantation into another, possession thereof (ibid., at 70). Frankel sees this as the position under Israeli law, although he does not explain how he reached this conclusion. And he also says that he admits that negation of ownership but recognition of property rights which are inferior with respect to the same “asset” is the exception in Israeli law (Ibid., at 71). According to identification of a person's right with respect to his body and with respect to separated organs, what should have been said is that according to Frankel, propection of our bodies is afforded by making available legal claims that are based on possession, according to the laws of property and the Civil Wrongs Ordinance.

81 Sec. 3 of the Movable Property Law, supra n. 23.

82 In Germany, there were those who supported the view that the said material became ownerless by virtue of the separation, but susceptible to retrieval by the person from whose body it was separated. See Gareis, K., “Das Recht an menschlichen Körper” in Festgabe f. Schirmer, (Konigsberg, 1900) 61, at 90.Google Scholar On the view that the material may be seized by anyone see Johnson, , Privatrechtverhaltnisse am Leichnam, Jur. Dies., (Heidelberg, 1912) 40.Google Scholar

83 See Sharon v. Levy (1981) 35(i) P.D. 736, at 749–750 where Landau J. surveys the situation in various legal systems with respect to tests for classification of tissue in connection with paternity proceedings.

84 See ibid.; Shamgar J. in Houri v. State of Israel (1982) 36(ii) P.D. 85, and cf. Kedmi, Y., On Criminal Procedure, (Tel Aviv, 1983, in Hebrew) vol. A, pp. 208–209.Google Scholar

85 Supra n. 69, at 67–71.

86 Supra n. 1.

87 See H. Schunemann, supra n. 79, at 163; Scott, supra n. 13, at 15. According to the information we have, there is no such industrial exploitation in Israel. Sometimes, defective organs are used for medical research, but in any case, the patient from whose body the material is taken receives no payment.

88 See De Cupis, supra n. 12, at 117.

89 It is also discussed in the Mejelle, sec. 453.

90 In France, secs. 21–28 of the Ordinance of 2 November, 1945, which became secs. 170–175 of the Code on Public Health (Ordinance of 5 October, 1953), state that a mother whose baby is not yet six months old is only permitted to nurse another child if a doctor's certificate states that she is capable of the dual role and the second mother is unable to nurse.