Ever since the American and the French revolutions, it was taken for granted that a written, formal, Constitution was essential to the functioning of a modern State. Old-established States, as they moved toward modernization or away from absolutism, hurried to provide themselves with Constitutions. New States enacted Constitutions as a matter of course, as one of the first acts of a newly-found sovereignty, often copying them from available models and without pausing to consider to what extent the provisions copied would suit the particular characteristics and goals of their respective societies. The well-known process of “reception” of laws was followed by a similar trend to “receive” Constitutions. To have a formal Constitution well-nigh became a universal fashion, a symbol of modernism. In the aftermath of the First World War, only two groups of fully independent States remained without Constitutions. One of them comprised countries still in their pre-modern stage, in respect both of their political and of their general social set-up, and without pretensions to modernity: Afghanistan, Ethiopia (then Abyssinia), Saudi Arabia, Thailand (then Siam), Yemen; since then, each of these, bent on modernization, provided itself with some kind of constitutional chart. The other group consisted of the one and only Great Britain, looked upon by everybody as a case apart.

In the decisions of the Israel Supreme Court delivered since the establishment of the State, one sometimes comes across the express or implied statement of the rule that:

The object of this article is to clarify a few aspects of this rule (which, for the sake of brevity, will be referred to as the rule of “constructive intention”).

Crime has become a major focus of public attention in the United States. Not white collar crime like embezzlement or tax fraud, nor crimes of passion, nor even the organized crime of professional gangsters. The public is gripped by newspaper accounts of crimes which endanger the physical safety of the population: robbery, housebreaking, assault, rape, and murder. Preoccupation with crime pervades every level of discussion; indeed, when Senator Goldwater made “crime in the streets” a major issue in his ill-fated campaign for the Presidency in 1964, he touched upon a nerve that is very raw in many Americans. Today, Truman Capote's In Cold Blood, a remarkable account of an apparently senseless robbery and murder, is storming the best-seller lists in our book stores.

After my sixteen years on the bench, it seems to me that it is usually not difficult to identify the class from which perpetrators of urban crimes of violence come. Almost all of the persons accused of this category of crime come from the bottom of society's barrel. They are the ignorant, the ill-educated, the unemployed, and often the unemployable. In a society which prides itself on opportunity and wealth, they have been brought up in terrible poverty. Few of them have had the advantage of what we call a moral upbringing. Because they lack education and skills, they are virtually excluded from the advantages of our economic and cultural life. Many of them are subjected to the grinding humiliation of racial discrimination. In the big cities, they no longer share the roots and traditions which may make rural poverty bearable. On every side, society holds out promises which, for them, are never kept; symbols of success which, for them, cannot be obtained.

The courts and the legislature in both Israel and Britain have recently been occupied with the problem of the valuation of investment property upon conversion to business use. The problem involves the whole complex of income tax and capital gains taxation and goes to the root of the income tax system. Different approaches to the basis of valuation in “converted property” cases have been taken by the American Internal Revenue Code, under the British Finance Act and according to the Israel Income Tax Ordinance. The main object of this study is to analyse and compare the similarities and differences of these tax systems and try to draw conclusions which will suggest the lege ferenda to be applied in Israel. I shall first examine the American practice, then deal with the British views and finally consider the approach adopted by the Israel courts.

The Israel law on damages for breach of contract is contained in arts. 106–11 (112) of the Ottoman Code of Civil Procedure, 1879 (OCCP), and the law on damages for torts in the Civil Wrongs Ordinance, 1944, (CWO)— enactments from two different worlds, built upon different foundations. The tests of liability are as follows.

OCCP

art. 109. “If the non-performance of an agreement be not due to bad faith on the part of the person who has undertaken to perform it, the damages awarded against him shall be equivalent only to the direct and determinate loss suffered by the other party owing to such non-performance.”

art. 110. “If the non-performance of the agreement be due to fraud or bad faith on the part of the person bound to perform it, he shall be liable to pay damages which shall include both direct loss caused to the other party by such non-performance and also profits of which he may have been deprived owing to such non-performance.”

CWO

sec. 60, prov. (a), “…where the plaintiff has suffered damage, compensation shall only be awarded in respect of such damage as would naturally arise in the usual course of things and which directly arose from the defendant's civil wrong;…”

Among all the criteria of liability for damages (which will hereafter be analysed) one only is common to both laws—“direct” damage. But neither law is original; it will be more interesting, and more instructive for the elucidation of their meaning, to go back to the sources and to compare both sets of provisions with their source, and the sources with each other.