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Jewish Law in the Israeli Courts
Part One JEWISH LAW IN THE STATE OF ISRAEL
Chapter One THE SOLUTION OF LEGAL PROBLEMS AND THE FILLING OF LACUNAE
1. The Importance of Jewish Law and Its Role as a Source of Jurisprudence
2. The Desirability of Examining Problems in the Light of Jewish Law
3. Reference to Jewish Law for Interpretation of Independent Statutes
Chapter Two INTERPRETATION
1. Basic Concepts and Moral and Cultural Principles
2. Statutory Interpretations
Chapter Three “RELIGIOUS” LAW IN THE COURTS
1. Status of “Religious” Law
2. Abrogation of Religious Norms by the Secular Legislator
3. Binding Force of Rabbinical Court Decisions upon Secular Courts
Part Two GENERAL PRINCIPLES
Chapter One LEGISLATION
1. Primary and Secondary Legislation
2. Local Regulation -Takkanot haKahal
3. “Forewarning” - Retroactive Penal Legislation
4. Status of Deceased Person
Chapter Two CUSTOM
1. Custom as a Source of Law - Situmta
2. Custom Determinative in Cases of Doubt
3. Conditions Determinative of Custom
4. Conflict of Customs as Between Communities
5. Custom in Labour Law
Chapter Three FOREIGN LAW
1. The Law of the State is the Law
Chapter Four PRECEDENT
1. The Principle of Binding Precedent
2. Care Required When Relying on Precedent
Chapter Five CIRCUMVENTION AND FICTION
1. Avoidance of Statutory Law and Legal Fiction
2. Fiction Limited to Particular Cases
Chapter Six LEGAL COMPLEXITY
1. “Half Slave and Half Freeman”
Chapter Seven MORALITY
1. Immoral Contracts
2. Moral Considerations in Medical Experiments
3. The Duty to Rescue and Self-Jeopardy
4. The Duty to Rescue Despite Protest
5. Acting Beyond the Strict Letter of the Law
6. Moral Basis for Duty of Care in Torts
7. Moral Duty of Employer to Pay Compensation
8. Moral Duty to Chastize Sinners
9. “Clean Hands and Pure Heart” as a Condition for Application to the High Court of Justice
10. Middat S'dom
Chapter Eight WEIGHTS AND MEASURES
1. Weights and Measures in Law and the Doing of Justice
Chapter Nine CONDUCT IN TIMES OF WAR
1. Prohibition Against Waste
Part Three SOCIAL AND ADMINISTRATIVE REGULATION
Chapter One HOLDERS OF PUBLIC OFFICE
A. Status and Obligations
1. Immunity of President
2. Judicial Character of Public Representatives
3. Public Consultation Before Appointment
4. The Duty to Act Above Suspicion
5. Minor Appointees and Setting an Example
6. Appointment of Rabbi
7. Duty of Rabbi With Regard to Political Queries
8. “Important Personage” and Trading Agreements
9. Moreh Hora'ah
10. Authority of Rabbi to Disqualify Ritual Slaughterer
11. The Right to Resign
B. Dismissal of Public Servant
1. Compulsory Dismissal
2. Grounds for Dismissal and Restrictions
C. Reinstatement of Public Servants
1. Conditions of Reinstatement
Chapter Two PUBLIC AUTHORITIES
A. Principles of Action
1. The Right to be Heard
2. Arbitrary Action
3. Tolerance and Discrimination
4. Minority Representation
5. Interested Parties
6. The Obligation to Give Reasoned Decisions
7. Public Tenders
8. Public Contracts
9. Confidentiality
10. Judicial Review
11. Majority Decision
12. Delegation of Authority
13. Exercise of Official Powers
B. The Citizen and the Authorities
1. Presumption of Innocence
2. Acquisition of Land for Public Purposes
3. Collection of Tax
Chapter Three CIVIL RIGHTS
A. Protection of Human Dignity
1. Reputation and Respect
2. Oppression of the Convert
3. Imprisonment as a Means of Punishment
B. Freedom of Religion and Conscience
1. Exemption from Military Service
2. Recruitment of Women
C. Freedom of Expression
1. Freedom of Opinion and Expression
D. Rights of Aliens
1. Rights of the Gentile in Israel
Chapter Four EDUCATION AND WELFARE
1. Duty of Father to Educate His Children
2. Communal Responsibility for Education
3. Parental Discipline
4. Physical Injury to Children by Parents and Teachers
5. Raising of Public Funds for Charity
6. Entitlement of Property Owners to Charity
7. Obligation of Charity Towards One Who is Not Careful With Funds
Chapter Five TAXES
1. Poll Tax - Uniformity
2. Assessment
3. Double Taxation
4. Evasion of Tax
Part Four REGULATION OF THE COURTS
Chapter One THE JUDICIAL SYSTEM
A. Appointment of Judges
1. Criteria for Appointment
2. Qualifications of a Dayan (Religious Court Judge)
3. Worldliness
4. Judicial Qualifications
B. Disqualification of Judges
1. Self-Interest
2. Judicial Animosity
3. Greeting a Litigant
C. Judicial Functions and Obligations
1. Judicial Law-Making
2. Duty to Give Judgment
3. Duty to Argue for a Litigant Unable to Do So Himself
4. Warning Witnesses to Tell the Truth
5. Duty Not to Hear One Litigant in the Absence of the Other
6. Duty to Propose Compromise
7. Duty to Give True Judgment
8. Judicial Truth and the Evidence
9. Judgment According to the Claim
10. Taking Sides
11. Judgment on the Evidence Produced
12. Consultation of Professional Literature
13. Reliance on Experience
14. Duty Not to Bend the Law in the Case of Poor Persons
15. Duty Not to Bend the Law in the Case of a Criminal
16. Power to Waive Orphans' Rights to Avoid Recriminations
17. Court as “Father of Orphans”
18. Hefker Bet Din Hefker - Declaration of Ownerless Property
19. Judicial Discretion - Domicile
D. Arbitration
1. Appointment of an Acquaintance as Arbitrator
E. Judgment
1. Publication of Minority Opinion
2. Error of Law
3. Binding Nature of Judgment on Matter of “Status”
4. Judgment by Full Bench
5. Duty to State Reasons
F. Execution of Judgment
1. Collection of Debts by Self-Help
2. The Oath of ”Ein Li” - “I Do Not Have”
3. Satisfaction out of “Medium” Property
G. Respect for Court
1. Refusal
2. Contempt of Court
3. A Disciple Who Decides the Halakhah in the Presence of His Teacher
4. Respect for Judge
H. Lawyers
1. Use of Polite Language
Chapter Two CIVIL PROCEDURE
A. Prescription
1. Grounds for Prescription
2. Conflicting Interests
3. Presumption Without a Claim
B. The Parties
1. Persons Having the Right to be Heard
2. Submissions Heard in the Absence of the Opposing Party
C. Jurisdiction
1. Preference for Local Jurisdiction
2. “The Plaintiff Must Follow the Defendant”
3. Ne exeat regno
D. Compromise
1. Grounds and Scope
2. Duty to Propose Compromise
3. Equal Division in Compromise
E. Varying the Amount Claimed
1. Judgment Not to be Greater than Amount Claimed
F. Right to be Heard
1. Duty to Allow Sides to Bring All Their Evidence
G. Finality of Judgment
1. Reopening a Case When Judge is Aware of Error
2. Rehearing in Questions of Age
3. Evidence Not to be Admitted After Judgment
4. Rehearing on Discovery of New Evidence
Chapter Three CRIMINAL PROCEDURES
A. Detention
1. Detention of Suspect
2. Detention of Women
B. Delay in Judgment and in Sentencing
1. Delay in Judgment
2. Delay in Sentencing
C. The Hearings
1. Duty of the Court to Correct Indictment
D. Finality of Judgment
1. Acquittal and Retrial as Res judicata
2. Rehearing on New Submissions in Capital Cases
3. Rehearing for a Convicted Person
Part Five EVIDENCE
Chapter One GENERAL
1. Fraud in Proceedings - Credibility of Parties and Evidence
2. Credibility of a Proven Liar
3. Credibility of a Criminal
4. Evidence of a Minor
5. Weight of Evidence by Court Official
6. Giving Testimony on Oath
7. Evidence of Single Witness
8. “Wrongdoer” Disqualified as Witness
9. Disqualification of a Witness
10. Evidence of the Mentally Ill
11. Personal Knowledge of Witness
12. Contradictory Evidence on Minor Matters
13. Distinction Between Contradictions on Substantive and Marginal Issues
14. Retraction by Witness
15. Evidence
16. Probative and Constitutive Evidence
17. Examination of Witnesses
Chapter Two EVIDENCE IN CIVIL CASES
A. Admissions
1. Scope and Types
2. Weight
3. Conditions for Application of Rule Tacitare est consentire
4. Ambiguous Admissions
B. Presumptions
1. A Person Does Not Dia Debt Before It is Due
2. Tacitare est consentire
3. A Person Does Not Implicate Himself
4. The Holder of a Deed is at a Disadvantage
5. The Holder of a Deed has a Lawful Claim
6. A Signatory Knows the Contents of the Deed
7. Omnia praesumuntur legitime facta
8. Witnesses Have Satisfied Themselves as to Capacity of Signatory
C. Modes of Proof
1. Matters of Expertise
2. Presumption that is Baseless
3. Miggo - “Because”
D. Litigants' Oaths
1. Orphans
E. Burden of Proof
Chapter Three EVIDENCE IN CRIMINAL CASES
A. Conviction and Acquittal
1. Conviction on Circumstantial Evidence
2. No Conviction on Probability
3. Acquittal in Cases of Doubt
4. Conviction on Confession
B. Extent of Proof
1. Intimidation and Guilt
2. Intimidation and Proof of Contemplating Offence
3. Extent of Proof in Cases of Unlawful Relations
C. Identification
1. Voice
2. Physical Features
3. Blood Tests
4. Facial Resemblance
Part Six PENAL LAW
Chapter One GENERAL PRINCIPLES
1. Ein Onshin Min Hadin - No Creation of Offences by Inference
2. Forewarning
3. Emergency Legislation
4. Res judicata
5. Confiscation of Property
6. Conspiracy
7. Attempt
8. Punishment in Cases of Doubt
9. Human Dignity
Chapter Two MENTAL ELEMENT
A. Volition
1. Ability to Distinguish Good from Evil
B. Knowledge
1. Absolute Liability
2. Foreseeability
C. Intention
1. Threats
2. Killing of the Wrong Person
Chapter Three DEFENCES
1. Self-Defence
2. Theft for Charitable Purposes
3. Enticement
Chapter Four IMMUNITY
1. The President
Chapter Five EXTRADITION
1. Extradition to Foreign States
Chapter Six OFFENCES
1. Unlawful Relations
2. Rape of Spouse
3. Unnatural Relations
4. Suicide
5. Physical Injury by Parents and Teachers
6. Abortion
7. Mercy Killing
8. Autopsies
9. Deceit and Fraud
10. Bribery
11. Invitees and Trespassers
12. Desecration of Tombstones
13. Theft
14. Extortion
15. Defamation
16. Publication of Suspicions
17. False Evidence
18. Failing to Take Reasonable Means to Prevent Wrongdoing
19. Contempt of Court
Chapter Seven PUNISHMENT
A. General
1. Punishable Persons
2. Judicial Considerations
3. Plea Bargaining
4. Contempt of Court
5. Punishment Fitting the Crime
6. Human Dignity
B. Purposes of Punishment
1. Deterrence
2. Suspended Sentence and Repentance
3. Benefiting from Criminality
C. Reasons for Severity or Leniency
1. Custom to be Uprooted
2. Seriousness of Offence against the Public
3. Past Merit of the Condemned Person
4. De minimis
5. Negative Effect on Public
6. Return of Stolen Goods
7. Penitents
8. Shame as Punishment
D. Rehabilitation
1. General
2. Validity of Pardons
E. Status of Ex-Convict
1. Innocence
2. Freedom of Activity
3. Public Office
Part Seven TORTS
Chapter One GENERAL
1. Consenting to Injury to Person or Property
2. Silence of the Victim
3. Causal Connection
4. Indirect Causation
5. Divine Punishment for Indirect Damages
6. Interspousal Actions
7. Agency to Commit a Wrong
8. Contributory Negligence
9. Joint and Several Liability
10. Absolute Liability
11. Self-Help
12. Loss of Earning Capacity
13. Trespassers
14. Liability for Injury Inflicted by One's Property
Chapter Two TORTS
A. Negligence
1. “Thou Shalt Love Thy Neighbour as Thyself”
2. Foreseeability
3. Negligent Misrepresentation
4. Invitees and Trespassers
5. Failing to Set Up Barriers
6. Placing of Obstacles
7. Medical Liability
B. Miscellaneous
1. Trespass by Means of Uprooting Fruit Trees
2. Defamation
3. Bearing a Defective Child
4. Physical Injury by Parents and Teachers
5. Emotional Injury
6. False Witness
7. Extraneous Expenses
8. Fraud
9. Theft
10. Extortion
11. Torts of Neighbours
12. Torts by Animals
Chapter Three BURDEN OF PROOF
1. The Goring Ox
2. Torts to Neighbours
Chapter Four REMEDIES
1. Mitigation of Damage
2. Restitution for Executing Erroneous Judgment
3. Restoration of Gain Procured
4. Calculation of Damages
5. Equitable Damages
6. Removing Offending Trees
7. Repayment of Extraneous Expenses
8. Seizure to Prevent Damage
9. Payment for “Shame”
Part Eight OBLIGATIONS
Chapter One RESOLVE TO ENTER INTO CONTRACT
1. Resolve as the Basis for Contractual Undertaking
2. Formal Requirements
3. Rescission
4. Asmakhta
5. Ostensible Contract
6. Extent and Validity of Obligation
7. Error in Law as Ground for Rescission of Gift
Chapter Two UNDECLARED INTENTION OF PARTIES
1. Undeclared Intention and Mistake in English Law
2. Notice of Resignation as “Pressure” on Employer
Chapter Three GOOD FAITH
1. Source of Duty and Its Extent
2. Competition on Sale of Goodwill
Chapter Four FRAUD AND DECEIT
1. Obligation to Refrain from Fraud
Chapter Five DURESS
1. Definition of Duress
2. Notice for the Purpose of Rescission on Grounds of “Duress”
3. Duress by Injured Party
4. “Distress”
Chapter Six FORBIDDEN CONTRACT
1. Validity
2. Exemption Clause Regarding Physical Injury
3. Retraction
4. Sale of Spes successionis
5. Meaning of “Public Policy”
Chapter Seven FRUSTRATION
1. Vis major
Chapter Eight REMEDIES FOR BREACH
1. Penalty Clause
2. Sanctions Against One Who Does Not Keep His Word
3. Equitable Damages
4. Specific Performance in Land
Chapter Nine INTERPRETATION OF DOCUMENTS
A. Modes of Interpretation
1. Usage, Language and Place
2. Custom
3. Express Intention
4. The Holder of a Document is at a Disadvantage
5. Primacy of Affirmative Interpretation
6. Later Term Operative
7. Scribal Errors
8. Normal Terms Implied
B. Implied Terms
1. Power to Vary Contractual Terms to Ensure Justice
2. Gift in the Wake of a Promise of Marriage
Chapter Ten SPECIAL CONTRACTS
1. Dowry
2. Independent Contractors
3. Brokers
4. Maintenance
5. Medical Fees
Chapter Eleven SERVITUDES
1. Privity and Debt - Shibuda deRabbi Natan
Chapter Twelve GUARANTEES
1. Asmakhta - Imperfect Resolve
2. Guarantor-Contractor
3. Right of Guarantor to Argue Against Execution of Obligation
Chapter Thirteen AGENCY
1. Duty to Act for Benefit of Principal
2. Conflict of Interests
3. Appointment of Agent Not Appropriate to a Passive Act
4. Power of Attorney Without Express Indication of Agent
5. Worker Engaged to Find Lost Property
6. Good Faith
7. Donee of Power of Attorney Does not Acquire Rights Which the Donor does not Possess
Chapter Fourteen BAILEES
1. Definition of Bailee Compared to English Law
2. Classification
3. Negligence in Bailment
4. The Parameters of Normal Manner of Bailment
5. Expenses of the Bailee of Lost Property
Chapter Fifteen EQUITY - THE VOLUNTEER
1. Payment of Debt Without Knowledge of Debtor
2. “One Enjoys a Benefit and the Other Suffers No Loss”
3. Duty to Restore Entitlement
4. Indemnity of Volunteer
5. Invitation to Dine or Lodge
Part Nine PROPERTY - PHYSICAL AND INTELLECTUAL
Chapter One MODES OF ACQUISITION
1. Agav
2. Possession Without Cause
3. Acquisition by Means of Processing
4. Odita - False Admission by Litigant as Alternative to Acquisition
5. Inability to Vest What is Not Under One's Control
6. Things that are not in Existence
7. Gifts of a Minor
Chapter Two HIRE
1. Nature
2. Sub-hire and Conditional Hiring
3. Right of Partner in Jointly Hired Property
4. Frustration by Reason of National Disaster
5. Tenancy
Chapter Three PROPRIETARY RIGHTS
1. Extent in Land
2. Benefit
3. Expropriation
4. Rights to Improvements
5. Tenant Protection and Jewish Law
Chapter Four SERVITUDES
1. Distinction Between Servitudes of Person and Property
2. Hypothecation of Chattels
3. Charge of Debtor's Property
4. Charged and Free Property
5. Collection of Debt from Medium Quality Property
6. Pledge not Equal in Value to Debt
7. Right to Redeem Land Assigned to Creditor
Chapter Five CONCEALMENT OF ASSETS
1. Ostensible Assignment of Property
Chapter Six MARKET OVERT
1. Purchase of Stolen Property
Chapter Seven COURT SALES
1. Protection of Purchaser in Good Faith
2. Rescission of Sale of Orphan Property on Error in Evaluation
Chapter Eight DECEIT
1. Duty to Inform of any Defect or Claim
2. Deceit and Overreaching
Chapter Nine PATENTS
1. Protection
2. Payment in Excess of Treatment and Medicaments
Chapter Ten LOST PROPERTY
1. Acquisition by Presence on One's Property
2. Costs of a Person Guarding Lost Property
3. Worker Engaged to Find Lost Property
4. Finding Stolen Property
Part Ten COMMERCIAL LAW
Chapter One PARTNERSHIP
1. Equal Sharing Implied
2. Sharing of “Rights” in Jointly-Owned Land
3. Option to Buy or be Bought Out
4. Sharing on Dissolution of Partnership
5. Right of Partner in Hire
6. Outgoings
7. Right to Use Property of Absent Partner
8. Right of Partner to Reimbursement of Medical Expenses
Chapter Two DEEDS
1. Possession of Deed as Sufficient Evidence
2. Holder of Deed at Disadvantage
3. Witnesses to Deed Presumed to have Ascertained Ability of Party to Bind Himself
4. Disqualification of Deed of Debt or of Sale Not Written in Presence of Debtor or Purchaser
5. Deed Replaced by New Deed
6. Obligation under Deed Exigible from Charged Property
7. Set-Off
Chapter Three INTEREST
A. Award of Interest
1. Award of Interest for Delay in Payment after Demand
B. Agreement on Interest
1. Guarantee Against Fall in Value of Money
2. Collection Fees
3. Negotiation Fees
4. Interest Defined
Chapter Four BANKRUPTCY
1. Payment of Debts Pro rata
2. Majority Determination
Chapter Five TRADE PRACTICES
1. Interloping
Part Eleven LABOUR LAW
Chapter One MASTER AND SERVANT RELATIONSHIP
1. Status of Worker-Employee or Contractor
2. Child Employed by Parent
Chapter Two CUSTOM
1. Status of Custom
Chapter Three DUTIES OF EMPLOYER
1. Safety of Employee
2. Services Beyond Duty
3. Unnecessary Work
4. Employee's Benefits
5. Delay in Paying Wages
6. Obligation to Allow Employee to Resign During Course of Employment
7. Groundless Dismissal
Chapter Four DUTIES OF EMPLOYEE
1. Sale of Place of Employment
2. Articles Found During Working Hours
Chapter Five COMPENSATION
A. Severance Pay
1. Obligation to Pay
2. Obligation vis-a-vis Employed Child
3. Redundancy Pay as a Right of Personal Nature
B. Compensation to Heirs of Employee
1. Death of Employee in the Course of Work
2. Insurance of Employee's Family After Death
Part Twelve INTERPRETATION
Chapter One RULES OF INTERPRETATION
1. Literal Statutory Interpretation
2. Interpretation According to Ordinary Usage
3. Interpretation According to Custom
4. Narrow Interpretation of Legislative Restrictions
5. Interpretation of a Regulation According to the Intention
6. Intention as Opposed to Express Language
7. Intentions to be Taken into Account
8. Adoption of Conventional Language for Documents in Case of Contradiction
9. Resolution of Contradictions
10. Interpretation Upholding the Document
11. Rectification of Scribal Errors
12. Interpretation According to the Context of the Passage or from a Subsequent Passage
13. The Subject of a Special Statement Applies to the General Proposition
14. The Negative Implying the Affirmative
15. Attribution of Correct Traditional Meaning
Chapter Two WORDS AND PHRASES
1. Dust
2. Appraisement
3. Religious Way of Life
4. “Other”
5. Violence
6. Supply
7. Credit
8. “Whether It Be...Or...”
9. Children or Sons
10. Building
11. Liable
12. Liable to Punishment
13. Pig's Meat
14. Dwelling
15. Rearing
16. Firm Resolve
17. Caused
18. Road
19. Religious Conscience
20. Authorization
21. Renunciation
22. “Transfer”
23. Distribution
24. Negligence
25. Vav Consecutive
26. Prostitute
27. “Abandon”
28. “Entertain”
29. Injury
30. “Applies”
31. Partition
32. Amnesty
33. “Non-Urban”
34. Suspicion
35. “Idiot”
36. Jew
37. “Intended”
38. “Dwelt”
39. “As One”
40. “Office”
41. “Includes”
42. Molestation
43. Possessed
44. Qualified Halakhic Authority
45. “Cooperative Settlement”
46. Measure
47. “Money”
48. Delivery “Into His Hands”
49. Act of Prostitution
50. Distress
51. “Had Been Required”
52. Encumbered Property
53. Hebrew
54. Salaried Employee and Unemployment Compensation
55. Oppression
56. “On Condition That”
57. “Redeemed”
58. “Turnover”
59. Dispersion and Distribution
60. Disqualified
61. “Dissolved”
62. Ignominy
63. Chose in Fiction
64. Pursued
65. Interest
66. Vehicle
67. Volition
68. Control, Domain, Public Domain
69. Authority
70. Oath
71. Marketing and Supply
72. Market
73. Indemnity
74. Resident
75. Good Faith
76. “Dependent Upon...”
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