Introduction to the Law of Israel

Name: Introduction to the Law of Israel
Brand: Kluwer Law International
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Amos Shapira Keren C. DeWitt-Arar(Editor)

Kluwer Law International (Publisher)

Published on 1. August 1995

456 pages

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978-90-411-7170-2 (ISBN)

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Cover
Half Title Page
Title Page
Copyright Page
List of Contributors
Preface
Summary of Contents
Table of Contents
List of Abbreviations and Hebrew Materials
Chapter 1 History and Sources of Israeli Law
I. HISTORY
A. Introduction
B. The Ottoman Period
C. The British Mandatory Period
D. The Israeli Period
II. FORMAL SOURCES
A. Introduction
B. Legislation
C. Precedent
SELECTED BIBLIOGRAPHY
Chapter 2 The Institutional Organization of the Israeli Legal System
I. THE NATURE OF ISRAELI CONSTITUTIONAL LAW AND ITS SOURCES
II. THE KNESSET
A. The Knesset as Both the Constituent Body and the Legislative Branch
B. Supervision of the Executive Branch
C. Composition of the Knesset and Its Procedures
D. Elections to the Knesset
III. THE GOVERNMENT
A. The Composition of the Government
B. The Government's Powers
C. Formation of the Government, Its Responsibility and Its Termination
IV. THE PRESIDENT OF THE STATE
A. The Status and Powers of the President
B. The President's Immunity
C. Summary
V. THE JUDICIARY
A. The System of Courts
B. Tribunals with Limited Jurisdiction
1. Military Tribunals
2. Labour Courts
3. Religious Courts
C. Supervision by the Regular Courts of Law over Special Tribunals
D. Regular Courts of Law
E. Judicial Intervention in Knesset Decisions
F. The Independence of the Judicial System
G. Reform of the Courts of Law
VI. THE ISRAELI BAR ASSOCIATION
SELECTED BIBLIOGRAPHY
Chapter 3 Constitutional Law
I. INTRODUCTION
II. THE SOURCE OF CONSTITUTIONAL NORMS
III. ISRAEL AS A JEWISH STATE
A. Constitutional Ramifications
B. Statutory Manifestations
1. Law of Return
2. Status of Jewish National Institutions
3. Foundations of Law Act
4. National Flag, Emblem, and Anthem
5. Days of Rest and Remembrance
6. State Education Law
IV. ISRAEL AS A DEMOCRATIC STATE
A. Basic Rights
B. Constitutional Protection of the Democratic Principle
V. DEMOCRATIC AND JEWISH: THE RELATIONSHIP
A. The Level of Principle
B. Areas of Potential Conflict
1. State and Religion
2. Status of Non-Jews
VI. PROTECTION OF CIVIL RIGHTS
A. Judicial Protection
1. Clear Statutory Authority
2. Interpretation of Statutes
3. Use of Administrative Discretion
B. Basic Laws on Civil Rights
C. Security Legislation
VII. SPECIFIC RIGHTS
A. Freedom of Speech
B. Equality
VIII. OCCUPIED TERRITORIES
IX. PENDING DEVELOPMENTS
SELECTED BIBLIOGRAPHY
Chapter 4 Administrative Law
I. INTRODUCTION: GUIDING PRINCIPLES
II. THE ADMINISTRATIVE POWERS
III. THE ADMINISTRATIVE PROCESS
IV. FORMING PUBLIC RIGHT AND COMPLEMENTARY ADMINISTRATIVE DUTY
V. JUDICIAL REVIEW
A. Judicial Review of Parliamentary Proceedings
B. The Standing Doctrine
C. The Justiciability Doctrine
D. The Scope of Judicial Review
VI. AFTERWORD
SELECTED BIBLIOGRAPHY
APPENDIX 1. BASIC LAW: HUMAN DIGNITY AND FREEDOM (1992)
APPENDIX 2A. BASIC LAW: FREEDOM OF OCCUPATION (1992)
APPENDIX 2B. BASIC LAW: FREEDOM OF OCCUPATION (1994)
Chapter 5 Family and Inheritance Law
1. INTRODUCTION: A SPLIT IN BOTH LAW AND JUDICATURE
II. CONCURRENT ARRANGEMENT: CIVIL AND RELIGIOUS
III. GAPS AND BRIDGES BETWEEN THE LAW ON THE BOOKS ANDLAW IN REALITY
A. General
B. Marriage Law
C. Divorce Law
D. Civil Intervention: Direct Legislation
E. Civil Intervention: Indirect Legislation
F. Civil Intervention: The Courts
1. Indirect Means
2. Recognition of the Status of Civil Marriage
3. Judicial Control over the Religious Courts
IV. THE RIGHT TO PARENTAGE AND THE RIGHT OF ABORTION
V. THE OBLIGATION OF MAINTENANCE
VI. PARENTS AND CHILDREN
A. The Child's Status
B. The Protection of Minors
VII. DOMESTIC VIOLENCE
VIII. PROPERTY RELATIONS
IX. COHABITANTS OR 'REPUTED SPOUSES'
X. PRIVATE INTERNATIONAL LAW
A. The Connecting Factor
B. The Religious Courts
C. Divorce
D. The Law and the Choice of Law in the Civil Courts
XI. SUMMARY
XII. INHERITANCE
A. Principles of Inheritance
B. Wills
C. Miscellaneous Matters
D. Private International Law
SELECTED BIBLIOGRAPHY
Chapter 6 Contract Law
I. HISTORICAL SURVEY
A. Contract Law upon Establishment of the State
B. The Early Years of Statehood
C. The Codification Enterprise
D. Sources of Legislation
II. FREEDOM OF CONTRACT AND GOOD FAITH
A. The Tension between the Principles
B. Freedom of Contract
C. Good Faith
1. General
2. The Meaning of Good Faith
3. Application in the Case Law
4. The Pre-Contractual Process
III. THE FORM OF THE CONTRACT
IV. INTENTION TO CREATE LEGAL RELATIONS
V. OFFER AND ACCEPTANCE
VI. DEFECTS IN CONSENT
VII. ILLEGALITY
VIII. INTERPRETATION AND SUPPLEMENTATION
IX. CONDITIONAL CONTRACTS
X. THIRD PARTY BENEFICIARIES
XI. BREACH AND REMEDIES
A. Breach
B. Enforcement
C. Rescission
D. Compensation
XII. FRUSTRATION
XIII. STANDARD CONTRACTS
XIV. SPECIFIC CONTRACTS
SELECTED BIBLIOGRAPHY
Chapter 7 Tort Law
I. THE SOURCES OF THE LAW OF TORTS
II. NEGLIGENCE
A. Introductory Remarks
B. The Duty of Care
C. Breach of the Duty of Care
D. The Shifting of the Burden of Proof in Special Cases
III. BREACH OF A STATUTORY DUTY
A. Introductory Remarks
B. A Duty Imposed by Statute
C. The Statute Intended for the Benefit or Protection of the Plaintiff
D. The Damage Caused was of the Sort, or of the Nature, that the Statute was Intended to Prevent
E. Does the Statute Deprive a Cause of Action?
IV. SPECIFIC TORTS
V. THE LAWS OF NUISANCE
A. Basic Principles
B. Trends in the Case Law
VI. COMPENSATION FOR ROAD ACCIDENT VICTIMS
A. Background and Principles
B. Trends in the Case Law
VII. LIABILITY FOR BODILY INJURY ARISING FROM DEFECTIVE PRODUCTS
VIII. CAUSATION AND REMOTENESS OF THE DAMAGE
A. Introductory Remarks
B. Factual Causation
C. Legal Causation
D. Remoteness of the Damage
IX. COMPENSATION FOR BODILY INJURY
A. Introductory Remarks
B. Compensation for Pecuniary Losses: Adherence to the Principle of Restitutio in Integrum
C. Compensation for Pecuniary Losses: Exceptions to the Principle of Restitutio in Integrum
D. Compensation for Pecuniary Losses: Easing the Plaintiff's Burden of Proof with Regard to his Damage
E. Compensation for Non-Pecuniary Losses: Objectivity and Standardization
F. Compensation for Non-Pecuniary Losses: Limitations on the Right to be Compensated
X. DEFENCES
A. Contributory Fault
B. Assumption of Risk
C. Failure to Mitigate Damages
SELECTED BIBLIOGRAPHY
Chapter 8 Property Law
I. INTRODUCTION AND SOURCES OF LAW
II. BASIC PRINCIPLES OF PROPERTY LAW
A. Constitutional Character of Property Rights
B. A 'Numerus Clausus' List of Property Rights
C. Publicity
D. Definiteness of the Property Right
E. The Unity of Property Rights
III. ACQUISITION OF PROPERTY RIGHTS
A. Original Acquisition
B. Derivative Acquisitions
1. Compulsory Acquisition
2. Acquisition by Transaction
IV. TYPES OF OWNERSHIP
A. Co-Ownership
V. CONFLICTS INVOLVING THIRD PARTIES
A. When the First Purchaser Owns only an Obligatory Right
B. When the First Entitled Party Owns a Property Right
1. Movable Property
2. Immovable Property
VI. THE IN REM ACTION
VII. RIGHTS IN THE PROPERTY OF ANOTHER
A. Leases
VIII. SECURITIES
A. Charges
B. Liens
C. Easements
D. Pre-Emption
SELECTED BIBLIOGRAPHY
Chapter 9 Commercial Law
I. GENERAL
II. BANKING
III. BILLS AND CHEQUES
IV. SALE
v. ENCUMBRANCES
VI. GUARANTEE
SELECTED BIBLIOGRAPHY
Chapter 10 Corporate Law
I. INTRODUCfION
II. HISTORICAL DEVELOPMENT
A. Origins
B. Legislative Reform
C. Looking into the Future
III. DESCRIPTION
A. Corporate Classification
1. Under the Companies Ordinance
2. Under Other Laws of the Knesset
3. Other Corporate Bodies
B. The Corporation as a Legal Person
1. The Rule
2. Exceptions
C. Ultra Vires and Constructive Notice
D. The 'Organic Theory'
E. Formation
1. Constitutional Law Issues
2. Formalities
F. Pre-Incorporation Contracts
G. The Basic Structure of Corporations
H. The Division of Power among Corporate Organs
I. The Board of Directors
J. Duties of Directors and Officers
K Indemnification and Insurance
L. Duties of Controlling Shareholders
M The General Meeting
N. Weighting Votes
O. Protection of the Minority
1. Substantive Law
2. Procedure
P. Insider Trading
Q. The Maintenance of Corporate Capital
R. Dividends
S. Issuing Securities
1. Private Issues
2. Public Issues
T. Transfer of Securities
U Mergers and Acquisitions
1. Mergers
2. Take-Overs
V. Liquidation and Winding Up
SELECTED BIBLIOGRAPHY
Chapter 11 Labour Law
I. STRUCTURE OF INDUSTRIAL RELATIONS
II. RECENT TRENDS
III. LABOUR COURT
IV. COLLECTIVE BARGAINING AND COLLECTIVE AGREEMENTS
A. Collective Bargaining
B. Collective Agreements
C. Extension Orders
D. Collective Arrangements
V. STRIKES AND LOCKOUTS
VI. THE INDIVIDUAL EMPLOYMENT RELATIONSHIP
A. The Employee and the Employer Defined
B. Individual Contracts of Employment
C. Basic Minimum Labour Standards
D. The Obligations of Employees and of Employers
E. Termination of the Employment Relationship
VII. EQUALITY AND PROHIBITION OF DISCRIMINATION IN EMPLOYMENT
SELECTED BIBLIOGRAPHY
Chapter 12 Tax Law
I. HISTORICAL DEVELOPMENT, INTERPRETATION, AND TAX REFORM
A. Origin and Statutory Development
B. Interpretation of Tax Laws and the Constitutional Framework
C. Tax Reform: Past and Future
II. BASIC CONCEPTS OF THE INCOME TAX LAW
A. The Definition of Income
B. Ordinary (Revenue) Income vis-à-vis Capital Income (Gains)
C. The Concept of Business and Business Income
D. Offset of Losses
E. Employment Income
F. Notional (Imputed) Income and Fair Market Value
G. A Note on the International Aspects of the Tax System
H. Business Expenses
I. A Note on Tax Avoidance
J. Family Income and the Tax Tables
III. A NOTE ON CAPITAL GAINS TAX
IV. A NOTE ON CORPORATE TAXES
V. A NOTE ON TAXATION AND INFLATION
VI. A NOTE ON VALUE ADDED TAX
SELECfED BIBLIOGRAPHY
Chapter 13 Criminal Law
I. THE SITUATION AT THE TIME OF THE ESTABLISHMENT OF THE STATE
II. CHANGES IN THE CRIMINAL LAW SINCE THE ESTABLISHMENT OF THE STATE
III. BASIC PRINCIPLES OF CRIMINAL LAW IN ISRAEL
IV. THE GENERAL ELEMENTS OF THE OFFENCE
V. THE DOCTRINES OF PENAL LIABILITY
VI. TYPES OF PUNISHMENT
VII. MULTIPLE OFFENCES
VIII. SPECIFIC OFFENCES
IX. REFORM
SELECTED BIBLIOGRAPHY
Chapter 14 Criminal Procedure
1. INTRODUCTION
II. ARREST
III. INTERROGATION
IV. SEARCH AND SEIZURE
V. JUDICIAL ARREST HEARINGS
VI. INDICTMENT
VII. POST INDICTMENT DETENTION
VIII. JURISDICTION OF THE COURTS IN CRIMINAL CASES
IX. THE BENCH TRIAL IN ISRAEL
X. PLEA BARGAINING
XI. RULES OF EVIDENCE
A. Discovery Rules
B. Judicial Witness Examination
C. The Privilege Against Self-Incrimination
D. The Admissibility of Statements Made by Witnesses
XII. RIGHT TO REPRESENTATION
XIII. SENTENCING
XIV. CONCLUSORY REMARKS
SELECTED BIBLIOGRAPHY
Chapter 15 Civil Procedure
I. HISTORY AND SOURCES OF LAW
II. BASIC CHARACTERISTICS OF THE CIVIL LITIGATION PROCESS
III. PROCEDURAL PRACTICE - PRINCIPAL STEPS
A. Initiating the Proceedings
1. Ordinary Process
2. Originating Summons Process
3. Summary Judgment Procedure
B. Joinder of Claims and Parties
C. Interim Relief
D. Discovery
E. Pre-Trial Conference
F. Evidentiary Hearings (Trial)
G. Judgment and Appeal
IV. SUMMARY
SELECTED BIBLIOGRAPHY
Chapter 16 Law of Evidence
I. INTRODUCfION
II. PRIVILEGED EVIDENCE
III. THE HEARSAY RULE
IV. THE ACCUSED AS A WITNESS FOR THE DEFENCE
V. ILLEGALLY OBTAINED EVIDENCE
VI. CRIMINAL CONVICTION AS EVIDENCE IN CIVIL PROCEEDINGS
SELECTED BIBLIOGRAPHY
Chapter 17 Insolvency Law
I. INTRODUCTION
II. ACTS OF BANKRUPTCY
III. CAUSES FOR LIQUIDATION
IV. TRUSTEE/LIQUIDATOR - NOMINATION, DUTIES, AND POWERS
V. COLLECTING THE DEBTOR'S ESTATE
A. The Mandatory Force of Collective Proceedings
B. The Estate
C. Exclusion of Fraudulent Conveyances
D. The Disclaimer of Onerous Property
E. Breach of Fiduciary Duty Prior to and During Liquidation
VI. BANKRUPTCY RULES OF DISTRIBUTION
A. Claims and Proceedings
B. Equality versus Absolute Priority in Collective Proceedings
C. Traditional Rigidness and Flexibility in Bankruptcy Rules of Distribution
VII. EFFICIENCY AND JUSTICE IN BANKRUPTCY LAW
VIII. SUMMARY: THE EXPANDING ROLES OF INSOLVENCY LAW
SELECTED BIBLIOGRAPHY
Chapter 18 Arbitration Law
I. INTRODUCTION
II. THE ARBITRATION AGREEMENT
A. Form
B. Content
III. PARTIES TO THE ARBITRATION AGREEMENT
IV. STAY OF PROCEEDINGS
V. THE ARBITRATOR
A. Qualifications
B. Appointment of the Arbitrator
C. Removal of an Arbitrator
D. The Arbitrator's Remuneration
VI. ARBITRATION PROCEEDINGS
VII. THE AWARD
VIII. SETIING ASIDE THE AWARD
IX. INTERNATIONAL ASPECTS
SELECTED BIBLIOGRAPHY
Chapter 19 Private International Law
I. INTRODUCTION
II. GENERAL PRINCIPLES: CLASSIFICATION, PROCEDURE, RENVOI, PUBLIC POLICY, AND PROOF OF FOREIGN LAW
A. Classification
B. The 'Substance - Procedure' Dichotomy
C. Renvoi
D. Public Policy
E. Proof of Foreign Law and the Presumption of Similarity of Laws
III. JUDICIAL JURISDICTION
A. General Principles
B. Jurisdiction Based on the Local Presence of a Foreign Defendant
C. Jurisdiction Based on Authorized Service of Process Abroad
D. Jurisdiction Based on the Foreign Defendant's Consent
E. Specific Statutory Bases of Jurisdiction
F. Grounds for Discretion Not to Exercise Jurisdiction
1. Jurisdiction Clauses
2. Lis Alibi Pendens
3. Forum Non Conveniens
IV. CHOICE OF LAW
A. Introductory Remarks
B. Choice of Law in Contracts
C. Choice of Law in Torts
D. Some Other Choice of Law Rules
V. RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENTS
A. Plenary and Incidental Recognition of Foreign Judgments, Direct and Collateral Estoppel, and Suing on the Underlying Cause of Action
B. Enforcement of Foreign Judgments under the Law
1. Purpose of Enforcement and Definition of Foreign Judgment
2. Conditions of Enforcement
a. Competence of the Foreign Court
b. Finality of the Foreign Judgment
c. No Violation of Israeli Public Policy
d. Executability of the Foreign Judgment in Its Country of Origin
3. Reciprocity and Time Bar
4. Defences
SELECTED BIBLIOGRAPHY
Chapter 20 International Law and the State of Israel
I. INTRODUCTION
II. INTERNATIONAL LAW AND THE ESTABLISHMENT OF THE STATE
III. STATE SUCCESSION
IV. THE RECEPTION OF INTERNATIONAL LAW
V. THE ARAB-ISRAELI CONFLICT
VI. THE LAWS OF WAR AND HUMANITARIAN LAW
VII. HUMAN RIGHTS
VIII. RECOGNITION
IX. EXTRADITION
X. NATIONALITY
XI. IMMUNITIES
XII. CRIMINAL JURISDICTION
XIII. JURISDICTION OF THE INTERNATIONAL COURT
XIV. LAW OF THE SEA
XV. LEGAL ASSISTANCE TO FOREIGN STATES
SELECTED BIBLIOGRAPHY
Compiled Bibliography
Index
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Introduction to the Law of Israel

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