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Some Fundamental Concepts of Property Law: A Critical Survey

Published online by Cambridge University Press:  16 February 2016

Joshua Weisman
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Extract

Historical developments have left a greater impression on the law of property than on many other branches of law. Land law, which constitutes a substantial portion of the law of property, is of particular import in this regard. The characteristic feature of land is its permanence, which is manifested in place, time and quantity: place – land being immovable; time – land having a continuous existence; and quantity – the amount of land basically not changing. This threefold permanence exposes land law to the continuous influence of historical forces, the effects of which are lasting. The phenomenon can be observed in the legal systems of many countries, including Israel.

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Research Article
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Israel Law Review , Volume 21 , Issue 3-4 , Summer–Autumn 1986 , pp. 529 - 573
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1986

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References

1 For a general review of the Ottoman land categories see Goadby, F.M. and Doukhan, M.J., The Land Law of Palestine (Tel Aviv, 1935)Google Scholar; Doukhan, M., Land Law in the State of Israel (Jerusalem, 2nd ed., 1953 Google Scholar with Supplement of L. Doukhan-Landau, 1963, in Hebrew).

2 See the explanatory notes to the Land Law bill, H.H. (1964) No. 612, p. 178, at 206-207.

3 23 L.S.I. 283.

4 Supra n. 2, at 207.

5 (1964) 40 Divrei Haknesset 2128 Google Scholar.

6 (1969) 55 Divrei Haknesset 3757 Google Scholar.

7 Sec. 152.

8 Sec. 162(2). On the meaning of the term “unsettled” see n. 17 infra.

9 Sec. 162(1). See also the Trust Law, 1979(33 L.S.I. 154), sec. 41 (a). On the previously applicable law in these two areas, see Goadby and Doukhan, supra n. 1, at 69 et seq.

10 Prescription Law, 1958 (12 L.S.I. 129), sec. 22.

11 Justice Haim Cohn thought differently in Estate of Suleiman Abdullah Issah v. State of Israel (1975) 29(i) P.D. 729, at 733. In his opinion, the Ottoman land classification no longer existed and the Ottoman law on limitation of actions had no further application. Compare Landau, M., “The Land Law in General and Servitudes under the Land Law” (1973) 3 Iyunei Mishpat 86, at 87 Google Scholar.

12 Chapter E and sec. 231 of the bill, supra n. 2.

13 Law and Administration Ordinance (Amendment No. 11), 1967 (21 L.S.I. 74); Law and Administration Order (No. 1), 1967, K.T. (1967) No. 2064, p. 2690.

14 This holds even though in most Islamic countries the laws of Waqf were abolished because they were deemed unsuited for present needs. See the statement of the Minister of Justice on the first reading of the Land bill in the Knesset, supra n. 5, at 2133.

15 “The Mandatory legislator sought to shorten and simplify the English statute, thus causing great confusion but there is no basis for the assumption that whenever he deviated from the text it was because he wanted to amend and improve the English statute and to create a new law”. Permo Ltd. v. Shmidgall (1971) 25(i) P.D. 802, at 807 (per Justice Witkon). See also Eliash v. Director of Land Department, in Rotenberg v., at 1813.

16 The Foundations of Law Act, 1980 (34 L.S.I. 181), which repealed Article 46 of the Palestine Order-in-Council, does not prejudice those portions of English law which were incorporated by virtue of Art. 46 before its repeal. See sec. 2(b) of the Act. On the question of what English law was incorporated before Art. 46 was repealed, see Tedeschi, G., “The Statutory Bailee” (1978) 8 Mishpatim 430, at 443 Google Scholar etseq. The application of English law by virtue of Art. 46 was subject to certain restrictions; see Levontin, A. and Goldwater, C., The Rules of Choice of Law in Israel and Article 46 of the Palestine Order-in-Council (Jerusalem, 1974, in Hebrew) 26 Google Scholar et seq. A lively argument developed in Israeli legal journals on the question of the effect of Art. 46, prior to its repeal, on the new legislation in the field of private law, and particularly on those laws which provide for “the independence of the law” (such as that contained in sec. 160 of the Land Law which provides: “Article 46 of the Palestine Order in Council, 1922-1947, shall not apply in matters of immovable property [in Israel]”). To a great extent, this will remain an academic discussion, as the author is inclined to accept Prof. Yadin's scepticism regarding the considerations affecting a judge deciding such a question. See Yadin, U., “On the Interpretation of Knesset Laws - IV” (1978) 31 HaPraklit 395, at 428 Google Scholar. See also the explanatory notes to the Foundations of Law bill, H.H. (1978) No. 1361, p. 307. Since Art. 46 has now been repealed, there is no need to prolong the discussion here. The interested reader is referred to Yadin, U., “Further on the Interpretation of Knesset Laws” (1970) 26 HaPraklit 190, at 197 Google Scholar; Yadin, U., “Implementation of the Civil Codification” (1979) 6 Iyunei Mishpat 506 Google Scholar; Friedmann, D., “The Provision Regarding Autarky of the Law and the Problem of Lacunae in Modern Israeli Legislation” (1973) 5 Mishpalim 91, at 93, 96 Google Scholar; Barak, A.; “Comment on ‘The Provision Regarding Autarky of the Law and the Problem of Lacunae in Modern Israeli Legislation’” (1973) 5 Mishpatim 99, at 101 Google Scholar; Barak, A., “Toward the Codification of the Civil Law” (1973) 3 Iyunei Mishpat 5, at 18 Google Scholar; Barak, A., “The Independence of the New Civil Codification: Risks and Prospects” (1976) 7 Mishpatim 15, at 26, 27 Google Scholar; Landau, M., “Rule and Discretion in the Administration of Justice” (1969) 1 Mishpatim 292, at 298 Google Scholar; Goldman v. Herman (1978) 32(ii) P.D. 421, at 431. On the possibility that, by virtue of Art. 46, English law continues to apply to the question of involuntary bailees despite the Bailees Law, 1967 (21 L.S.I. 49), see G. Tedeschi, supra this note, at 44-5.

17 2 L.S.I. [N.V.] 41. On the meaning of “settlement”, see Doukhan, supra n. 1, at 389 et seq.; Goadby and Doukhan, supra n. 1, at 270 et seq. The scope of this section after the negation of equitable rights by sec. 161 of the Land Law, 1969, has not yet been clarified. Three possibilities have been suggested. In a case in which the issue was not decided, Justice Haim Cohn assumed that during the settlement procedure the Court is directed to take equitable rights into consideration even if those rights were created after the Land Law was passed. Estate of Suleiman Abdullah Issah v. State of Israel, supra n. 11, at 732; see also Goldenberg, A., “The Land Law, 1969 - Transitional Provisions and the Legacy of the Past” (1972) 2 Iyunei Mishpat 839, at 848 Google Scholar.The second possibility is that equitable rights be taken into consideration where disputes arise before the Court, either before settlement or at the time the land is undergoing settlement, whether the rights arose before the Land Law was passed or afterwards. Raveh, Y., “The Land Law as Reflected in Judicial Interpretation and the Bona Fide Acquisition of Rights under the Law” (1973) 3 Iyunei Mishpat 93, at 96 Google Scholar. The last alternative is that only those equitable rights which were created before the Land Law should be taken into account when the land is undergoing settlement. Weisman, J., “The Land Law, 1969: A Critical Analysis” (1970) 5 Is.L.R. 379, at 383–385 Google Scholar.

18 Drayton, The Law of Palestine 2499; see also Akum v. Israel Branch of the International Federation of the Record Industry (1969) 66 P.M. 62.

19 2 L.S.I. [N.V.] 5.

20 Dinei Medinat Israel, 37 N.V., p. 761.

21 3 L.S.I. [N.V.] 131.

22 The principal laws passed by the Knesset in the field of property law include: Basic Law, Israel Lands (14 L.S.I. 48); Israel Lands Law, 1960 (14 L.S.I. 49); Israel Land Administration Law, 1960 (14 L.S.I. 50); Land Law, 1969 (23 L.S.I. 283); Movable Property Law, 1971 (25 L.S.I. 175); Pledges Law, 1967 (21 L.S.I. 44); Hire and Loan Law, 1971(25 L.S.I. 152); Tenants' Protection Law (Consolidated Version), 1972 (26 L.S.I 204); Bailees Law, 1967 (21 L.S.I. 149); Trust Law, 1979 (33 L.S.I 154); Unjust Enrichment Law, 1979 (33 L.S.I. 44); Sale Law, 1968 (22 L.S.I. 107); Sale (Housing) Law, 1973 (27 L.S.I. 213); Sale (Apartments) (Assurance of Investments of Persons Acquiring Apartments) Law, 1974 (29 L.S.I. 18); Gift Law, 1968 (22 L.S.I. 113); Succession Law, 1965 (19 L.S.I. 58); Transfer of Obligations Law, 1969 (23 L.S.I. 277); Spouses (Property Relations) Law, 1973 (27 L.S.I. 313); Restoration of Lost Property Law, 1973 (27 L.S.I. 187); Antiquities Law, 1978(32 L.S.I. 93); Prescription Law, 1958 (12 L.S.I. 129); Planning and Building Law, 1965 (19 L.S.I. 330).

23 Ginossar, S., “Israel Law: Components and Trends” (1966) 1 Is.L.R. 380, at 395Google Scholar.

24 Zeltner, Z., “The Trusts Bill, 1974” (1976) 2 Tel Aviv University Studies in Law 88 Google Scholar. Similarly, Prof. Barak's generalization that in the field of private law “the Israeli legislature's way of thinking is not the English way”, is not totally accurate. See Barak, A., “Toward the Codification of the Civil Law” (1973) 3 Iyunei Mishpat 5, at 21 Google Scholar.

25 See Friedman, W., Legal Theory (London, 5th ed., 1967) 520 Google Scholar.

26 Id., at 521. See also J.H. Merryman, “Ownership and Estate” (1974) 48 Tulane L.R. 916, at 928.

27 Trust Law, 1979. See Kassem v. Kassem (1983) 37(iii) P.D. 60, at 87. Equitable interests have also been recognized outside the law of trusts, even if wrapped in an Israeli mantle: “there will still be room for the recognition by the Courts of the equivalent of equitable rights, no matter by what name”; Landau, M., “Legislative Trends in the Land Code Bill 1964”, in Studies in Israeli Legislative Problems, Tedeschi, G. and Yadin, U., eds., 16 Scripta Hierosolymitana (Jerusalem, 1966) 134, at 140 Google Scholar. See also Weisman, supra n. 17, at 13; Stockman v. Spentani(1974) 28(ii) P.D. 182, at 187; Attias v. The Land Registrar (1976) 30(iii) P.D. 527, at 530; Estate of Bloom, deceased v. Nachum (1977) 89 P.M. 16, at 19.

28 Cited by Crane, (1977) Journal of the Society of Public Teachers of Law 69, at 70.

29 In contrast to Lawson, Merryman describes the English law of property as characterized by “useless antiquarianism and arcane complexity”, supra n. 26, at 945. In the field of mortgages, see Salmond on Jurisprudence (London, 12th ed., 1966) 432 Google Scholar. On co-ownership, see Weisman, J., “Termination of Co-Ownership in Land Under English Law”, in Studies in Law in Memory of Abraham Rosenthal, Tedeschi, G., ed. (Jerusalem, 1964, in Hebrew) 204 Google Scholar; Co-Ownership (Thesis submitted for the degree of Doctor of Jurisprudence, The Hebrew University of Jerusalem, 1962) 235-238. On the complexities of English law see generally Megarry, and Wade, , The Law of Real Property (London, 4th ed., 1975) 1–2 Google Scholar.

30 See the explanatory notes to the Land bill, supra n. 2, at 207. For an example of the influence of Jewish law, see sec. 21 (b) and the remarks of the Chairman of the Constitution and Law Committee, supra n. 6, at 3759. On the influence of the Continental land law, see Grossman et K.B.K. Registered Partnership v. Administrators of the Estate of Biederman (1972) 26(ii) P.D. 781, at 790.

31 See the statement of Knesset Member Yochanan Bader, (1964) 40 Divrei HaKnesset 2326.

32 Rabello, M., Gift Law, 1968 in Commentary on Laws Relating to Contracts, Tedeschi, G., ed. (Jerusalem, 1979, in Hebrew) 15–16 Google Scholar.

33 Prof. M. Elon points out a number of examples which, according to the explanatory notes to the bill, were greatly influenced by Jewish law, while in fact the influence of Jewish law was either non-existent or marginal. Elon, M., “The Sources and Nature of Jewish Law and its Application in the State of Israel, Part IV” (1969) 4 Is.L.R. 80, at 82-83, 90 Google Scholar.

34 Id, at 82-83. Compare id, at 138.

35 See id, at 82, 91, 93, 96; N. Rakover, “The Gift Law, 1968” (1969) 4 Is.L.R. 260, at 268–270; Friedmann, D., “Independent Development of Israeli Law” (1975) 10 Is.L.R. 515, at 548 Google Scholar; Unjust Enrichment Bill, 1978, H.H. (1978) No. 1353, p. 266.

36 Compare D. Friedmann, supra n. 35, at 546.

37 Barak, supra n. 24, at 21, 23; Yadin, U., “Implementation of the Civil Codification” (1979) 6 Iyunei Mishpat 506, at 510 Google Scholar.

38 See Stone, J., Legal Systems and Lawyers' Reasoning (Stanford, 1964) 285, n. 251Google Scholar.

39 21 Corpus Juris Secundum §216.

40 M. Landau, supra n. 16, at 301-302; Apte v. Apte (1971) 25(i) P.D. 561, at 572 (per Justice Y. Cohen); Barak, supra n. 24, at 15, n. 64.

41 See Sussmann, Y., “The Concept of Good Faith in the Law of Contracts in Israel – The Role of German Law” (1979) 6 Iyunei Mishpat 485 Google Scholar. See along the same lines, though less emphatically: Zeltner, Z., “Reflections on the Contracts (General Part) Bill, 1970” (1973) 3 Iyunei Mishpat 121 at 132 Google Scholar; Englard, I., The Capacity and Guardianship Law, 1969, secs. 1-13, in Commentary on Laws Relating to Contracts, Tedeschi, G., ed. (Jerusalem, 1972, in Hebrew) 8 Google Scholar. Other authorities have said that “[the] new contract law cannot be fully grasped without systematic exploration of the foreign laws which influenced it”. Shalev, G. and Herman, S., “A Source Study of Israel's Contract Codification” (1975) 35 La. L.R. 1091, at 1092 Google Scholar. But compare id, at 1094.

42 See “On the Technique of Future Israeli Legislation,” in Tedeschi, G., Studies in Israel Law (Jerusalem, 1960) 69, at 82–83 Google Scholar. See Barak, supra n. 24, at 14, n. 59; Cheshin, M., “Interpretation of the Bailees Law, 1967” (1971) 3 Mishpatim 137, at 140 Google Scholar.

43 See Yadin, U., “Further on the Interpretation of Knesset Laws” (1970) 26 HaPraklit 358, at 365 Google Scholar.

44 See Yadin, U., “The Succession Law as a Part of the Israeli Civil Legislation” (1973) 3 Iyunei Mishpat 26, at 31 Google Scholar. See also Barak, A., “The Independence of the New Civil Codification: Risks and Prospects” (1976) 7 Mishpatim 15, at 21 Google Scholar; Ginossar, supra n. 23, at 389.

45 See Landau, supra n. 27, at 136.

46 In Kobi v. State of Israel (1975) 29(ii) P.D. 729, Justice Sussmann commented that the similarity between sec. 197 of the Israeli Criminal Procedure Law, 1965 (19 L.S.I. 158), and German law is evidence of the fact the German law influenced the Israeli legislator. But Prof. Yadin subsequently refuted this contention: “The writer of these lines, who was responsible for the planning and drafting of that section can testify that the ‘legislator’ did not in fact draw the provisions of sec. 197 from either the French or German statute”. Yadin, U., “On the Interpretation of Knesset Laws - IV” (1978) 31 HaPraklit 395, at 407 Google Scholar.

47 In the words of Justice Barak, in order “to broaden the interpretive options” - see supra n. 44, at 21-22; or, in the words of Dr. M. Cheshin, “as food for thought in the process of seeking solutions” – see supra n. 42, at 137.

48 See Law and Administration Ordinance, 1948, Official Gazette, Supplement A, 1, sec. 15(c).

49 See Sussmann, supra n. 41, at 485.

50 Kupat Am Bank Ltd. v. Handless (1980) 34(iii)P.D. 57, at 80(per Justice M. Elon).

51 Id, at 67 (per Justice A. Barak). The Supreme Court has emphasized the need to avoid ascribing to a term borrowed by the legislator from Jewish law the same meaning given to it in Jewish law: Metuvah Ltd, v. Kazem (1952) 6 P.D. 4, at 12, 16. It is doubtful whether the Foundation of Law Act, 1980, concerns the role of traditional principles of Jewish law in statutory interpretation.

52 See, e.g., Prof. Tedeschi's criticism of the judicial tendency to interpret the Land Law by reference to English law: “Antiquities in Property Law” (1979) 9 Mishpatim 363, at 370 Google Scholar. Compare Unison – Construction Co. Ltd. v. Deutsch (1976) 30(ii) P.D. 398, at 404, where Justice Berinson emphasizes the importance of Anglo-Saxon law, among other legal systems of civilized countries, as a source of inspiration and guidance to the interpreter.

53 Kruse, V., The Right of Property (Oxford, 1939) 125 Google Scholar. See also McDougal, , Municipal Land Policy and Control (1946) 13–15 Google Scholar, cited in Cribbet and Johnson, , Cases and Materials on Property (Mineola, 4th ed., 1978) 81–82 Google Scholar.

54 Kruse, supra n. 53, at 126.

55 Ginossar, S., “Proprietary Rights – A New Classification and its Implications” (1978) 9 Mishpatim 5, at 11 Google Scholar, n. 105. (See also Marty, and Raynaud, , Droit Civil (Paris, 2nd ed., 1972) vol. 1, p. 482 Google Scholar). Prof. Ginossar's approach only appears to be close to that of Kruse, because he admits that the law which is applied to property rights is different from that which is applied to personal rights, but he prefers to speak of “obligatory rights of a special character”, instead of “property rights”. This distinction makes his approach more semantic than substantive.

56 This is not an absolute rule. Under sec. 85(3) of the Bankruptcy Ordinance (New Version), 1980, an owner of property held by a bankrupt could be affected by the bankruptcy, e.g., as a result of the doctrine of “reputed ownership”.

57 Hire and Loan Law, 1971, sec. 21.

58 Land Law, sec. 9. See also Ne'eman v. Mayor, Members of the Council and Inhabitants of Tel Aviv-Jaffa (1956) 10 P.D. 1942, at 1958. Although the contractor's right takes precedence over B's, B still has the possibility of claiming damages from A for breach of the contract between them.

59 Land Law, sec. 8; Bikser v. ‘Amidar’, National Corporation for Immigrant Dwellings Ltd. (1978) 32(i) P.D. 73, 77e-g (but compare `id., at 77g and 78a), 80-81; Chashash v. Damari (1977) 31(ii) P.D. 505, at 516; Rosnocks v. Hutrar (1977) 31(i) P.D. 382, at 384. See also Reichman's, criticism, “Community Property between Spouses in Light of the Land Law, 1969” (1978) 6 Iyunei Mishpat 289, at 300–301 Google Scholar.

60 The basic characteristics of property rights in the examples given were: in the first example, the preference given to the owner of a property right in a case of bankruptcy (droit de préference); in the second example, the right to follow an asset which is the subject of a property right despite changes of ownership (droit de suite); in the third example, the special regard accorded to property rights demonstrated by the insistence on formal requirements, such as requiring a written document.

61 A.N. Yiannopoulos, book review of Ginossar, S., “Droit réel propriété et créiance: é1aboration d'un système rationnel des droits patrimoniaux” (1963) 12 Am.J. Comp. L. 116, at 119 Google Scholar. See also Levontin, A., “What is A Property Right?” (1979) 9 Mishpatim 384, at 413 Google Scholar.

62 See International Encyclopaedia of Comparative Law, Lawson, F.H., ed. (Tubingen, ) vol. 6, ch. 2: “Structural Variations of Property Law”Google Scholar.

63 See Yiannopoulos, A.N., Louisiana Civil Law Treaties (St. Paul, Minn., 1967) vol.11. p. 365 Google Scholar. On the tenacity of the distinction between property and obligation despite the criticism at the end of the 19th century, see also Marty and Raynaud, supra n. 55, at 482.

64 “The concept of property never has been, is not, and never can be of definite content”: Philbrick, F.S., “Changing Conceptions of Property in Law” (1938) 86 U. Pennsylvania L.R. 691, at 696 Google Scholar.

65 On the property aspects of security interests see Weisman, J., The Pledges Law. 1967 inCommentary on Laws Relating to Contracts. Tedeschi, G.. ed.(Jerusalem. 1974 Google Scholar. in Hebrew) 15 el seq.

66 On the property aspects of easements see J. Weisman, supra n. 17, at 67 et seq.

67 Land Law, 1969, sec. 9.

68 On the exceptions, where the right of pursuit fails, see, e.g., Weisman, supra n. 65, at 148; Weisman, supra n. 17, at 452.

69 “Right of Pursuit and Right of Preference: these are the great advantages of real rights over rights of credit. These are not, as is often said, special attributes, something extrinsic, attached to real rights. They are the very essence of its realness, that is of its nature opposable to all persons”. Planiol, and Ripert, , Treatise on the Civil Law (La., 12th ed., 1939) vol. I, pt. 2, p. 276 Google Scholar. Translation by Louisiana State Law Institute.

70 See Kruse, supra n. 53, at 107. Similarly, French law allows the creation of a usufruct when the asset which is the subject of this property right is a debt. See Marty and Raynaud, supra n. 55, at 487.

71 Brown, R.A., The Law of Personal Property (Chicago, 3rd ed., 1975) 6 Google Scholar.

72 Marty and Raynaud, supra n. 55, at 482. See also Ginossar, supra n. 55, at 7.

73 Alon v. Melnick (1956) 10 P.D. 486, at 489-490, 492 (per Justice Sussmann). The term “interest in property”, as it appears in the quotation, refers to a “property right”. Id., at 492. In Bikser v. “Amidar”, supra n. 59, the Court distinguished between “a right in relation to property” and “a right in property” in the interpretation of sec. 6 of the Land Law, 1969, which defines a transaction in immovable property. Sec. 6 states: “A transaction in immovable property is the grant of the ownership thereof or of any other right therein…” The question in Bikser was whether sec. 6, in mentioning the grant of a right, was necessarily referring to a real right, or whether the definition also included personal rights. The Court held that the term “right therein” in the section, as distinguished from the term “a right relating thereto”, indicates an intention to refer to a real right. Id., at 77 (per Justice Landau). See also Heker v. Barash (1951) 5 P.D. 566, at 571, where Justice Silberg says: “A right in property - or a real right - resides, as it were, in the property itself and consequently avails against everyone who seeks to encroach upon the right…”

74 See Planiol, and Ripert, , Traité pratique de droit civilfrançais (Paris, 2nd ed., 1952) vol. III, p. 42 Google Scholar. See also Carbonnier, J., Droit civil (Paris, 8th ed., 1975) vol. III, p. 53 Google Scholar; Stone, supra n. 38, at 150.

75 Marty and Raynaud, supra n. 55, at 483.

76 See Justice Agranat's criticism of the passage quoted from Alon v. Melnick (text at n. 73, supra) in Neeman v. Mayor, supra n. 58, at 1966-1967.

77 Marty and Raynaud, supra n. 55, at 483-484; Salmond, supra n. 29, at 235 etseq., 441; Ginossar, supra n. 55, at 8.

78 Planiol and Ripert, supra n. 74, at 47.

79 Carbonnier, supra n. 74, at 7; Salmond, supra n. 29, at 238-239.

80 Salmond, id., at 238-239, n. (b).

81 Ibid.

82 See Aubrey and Rau, Droit civil francais (Enlg. trans., St. Paul, Minn., 1966) vol. II, p. 5; Planiol and Ripert, supra n. 74, at 27; Carbonnier, supra n. 74 at 8.

83 Aubrey and Rau, supra n. 82, loc. cit.

84 Hire and Loan Law, 1971, sec. 30. The ability of the lender to terminate the loan early, if the item lent is required for his own needs, makes it more difficult to evaluate the right. Id., sec. 29. Compare M. Landau, supra n. 11, at 90, contending that the right is transferable. Landau mistakenly assumes that sec. 22 of the Hire and Loan Law, 1971, applies to the right. However, it is not listed in sec. 27 among those sections which apply to a right conferred without consideration.

85 See Aubrey and Rau, supra n. 82, loc. cit.; Salmond on Jurisprudence (London, 11th ed., 1957) 290. (It does not appear in the later edition.) See also Levontin, supra n. 61, at 385 et seq.

86 Salmond, supra n. 85, loc. cit.

87 Aubrey and Rau, supra n. 82, at 6.

88 Levontin, A., “The Nature of a Lease of Immovable Property” (1955) 11 HaPraklit 254, at 256 Google Scholar; Levontin, supra n. 61, at 412.

89 Planiol and Ripert, supra n. 74, at 226; National Provincial Bank Ltd. v. Ainsworth [1965] A.C. 1175, at 1247-1248; 2 All E.R. 472: “Before a right or an interest can be admitted into the category of property, or of a right affecting property, it must be definable, identifiable by third parties, capable in its nature of assumption by third parties, and have some degree of permanence or stability” (per Lord Wilberforce). See also the comments of Megarry, R.E. on the decision in Re Button's Lease, [1964] Ch. 263Google Scholar; [1963] 3 All E.R. 708: “prima facie a donee or purchaser of rights of property should have with those rights the jus disponendi which is one of the usual badges of rights of property”. (1964) 80 L.Q.R. 21, at 23.

90 There is no necessary interdependence between the property nature of the lease agreement and its transferability”. Hekerv. Barash, supra n. 73, at 581 (per Justice Silberg). Indeed, the legislatorcan explicitly limit the transferability of a right which he classifies as a property right. However, lacking any explicit limitation of this kind, and such was the case discussed by the Court, is the right transferable? Apparently the answer in Heker is that it is not.

91 Compare Noyes, C.R., The Institution of Property (New York, 1936) 347 Google Scholar.

92 Cited with approval by the Supreme Court in Wertheimer v. Harari (1981) 35(iii) P.D. 253, at 269.

93 See infra, sec. E on “Broadening the Meaning of ‘Property Right’”.

94 Compare Kruse, supra n. 53, at 107-109; Reich, C.A., “The New Property” (1964) Yale L.J. 733, at 739 Google Scholar. Reich is careful to preserve the distinction between “wealth” and “property”. In “wealth” he includes, inter alia, rights with an economic value of the type he calls “government largesse”, e.g., the right to National Insurance, a taxi licence, a licence to operate a television station, etc. These rights, says Reich, are certainly “wealth”, but are not necessarily within the scope of “property”. Among the differences which he points out between the two is the element of transferability, which is generally lacking in government largesse. Whenever the law permits the transfer of any kind of government largesse, such as a taxi licence, the right comes close to being a property right. Reich also discusses and criticizes the differences that nevertheless remain in such cases between government largesse and property rights. See also Levontin, supra n. 61, at 390.

95 Justice Sussmann, in Alon v. Melnick, supra n. 73, at 489-490. An example from legislation of the “universal” enforceability ascribed to property rights can be found in sec. 5 of the Trust Law, 1979. (“A trust has effect… where a note has been entered… vis-à-vis the whole world”.)

96 Justice Silberg, in Heker v. Barash, supra n. 73, at 571.

97 Marty and Raynaud, supra n. 55, at 484.

98 Sale Law, sec. 34.

99 See Paton, G.W., Jurisprudence (Oxford, 4th ed., 1972) 299 Google Scholar; Salmond, supra n. 29, at 236. Hohfeld, W.N., Fundamental Legal Conceptions (New Haven, 1966) 72 Google Scholar et seq., n. 22.

100 Supra n. 58.

101 Id., at 1964-1969. See also Alon v. Melnick, supra n. 73, at 503. Stockman v. Spetani, supra n. 27, at 187. Compare Boker v. Anglo-Israel Corporation for Management and Security Ltd. (1971) 25(ii) P.D. 121, at 134; Attias v. The Registrar, supra n. 27, at 531-532; Chashash v. Damari, supra n. 59, at 515, 518.

102 Paton, supra n. 99, at 302, n. 1.

103 See text at n. 91, supra.

104 In Israel there is also a further question as to whether equitable interests are still recognized after the formal severance of the ties to English law, from which the institution was adopted.

105 (1956) 10 P.D. 89, at 94-95.

106 See also Todoris v. Rappaport (1966) 20(i) P.D. 85.

107 Planiol and Ripert, supra n. 74, at 45; Carbonnier, supra n. 74, at 53-54.

108 Marty and Raynaud, supra n. 55, at 484.

109 Aubrey and Rau, supra n. 82, at 64. In sec. 62 of the Civil Wrongs Ordinance (New Version), the tort is defined as “unlawfully causing breach of contract”. Ginossar brings further examples of the protection afforded parties to contracts against the actions of third parties, supra n. 55, at 9-11.

110 Tedeschi, G., “Obligee's Action in Tort against Third Party”, in Studies in Private Law (Jerusalem, 1966) 139, at 170 Google Scholar. See also Ginossar, supra n. 55, at 9. On the tort of “unlawfully causing breach of contract” in connection with strikes, see Raday, F., “Torts Liability for Strike Action and Third Party Rights” (1979) 14 Is.L.R. 31 Google Scholar.

111 Sec. 62 of the Civil Wrongs Ordinance provides: “Any person who knowingly and without sufficient justification causes any other person to break a legally binding contract with a third person commits a civil wrong against such third person…” It is doubtful whether interference with the performance of an obligation to pay compensation for breach of contract would come within the ambit of the section. It seems clear, however, that causing non-performance of an ex lege obligation such as payment of alimony is not covered by the section.

112 Nevertheless, we must take into account the possibility that anyone who knowingly encourages non-compliance with a court order (such as an order to pay damages for breach of contract or in consequence of a tort) is liable for contempt of court. See Ginossar, supra n. 55, at 9, 24. With regard to non-contractual obligations, the civil wrong of conspiracy must also be considered in those legal systems which recognize it.

113 See the Succession Law, sec. 127; compare id., sec. 101.

114 Supra n. 88, at 256; supra n. 61, at 391 et seq.

115 Land Law, sees, 16, 17; Movable Property Law, sec. 8. The Civil Wrongs Ordinance also imposes liability upon a person who interferes with the property of another even when he acts in good faith (sec. 33). In actions for conversion, good faith is a defence in special circumstances, as specified in sec. 53. See also Englard, I., The Law of Civil Wrongs: The General Part, Tedeschi, G., ed. (Jerusalem, 1969, in Hebrew) 130–131 Google Scholar; Kretzmer, D., Nuisance, in The Law of Civil Wrongs: The Particular Torts, Tedeschi, G., ed. (Jerusalem, 1980, in Hebrew) 78 et seq. Google Scholar; Fleming, J.G., The Law of Torts (Sydney, 5th ed., 1977) 75 Google Scholar. Englard has criticized the absence of a good-faith defence in connection with claims for damages. Englard, I., “Twenty-Five Years of the Civil Wrongs Ordinance: Trends and Problems” (1974) 5 Mishpatim 564, at 584–585 Google Scholar.

116 See Lawson, F.H., Rabels Zeitschrift (Berlin, 1966) 147, 148 Google Scholar. Compare Hohfeld, supra n. 99, at 72; Tedeschi, supra n. 110, at 156 et seq. Tedeschi states that there are few differences between the protection of property rights and the protection of contract rights.

117 Kelsen gives another reason for emphasizing the relationship between a person and an asset rather than the relationship between the owner of the asset and all the people subject to the right. In his opinion, focusing on the asset diverts attention from the exploitation of others which is involved in the ownership of assets and, in particular, in the ownership of the means of production. See Kelsen, H., The Pure Theory of Law (Berkeley, 1970) 131 Google Scholar.

118 Marty and Raynaud, supra n. 55, at 484-485. There are also similar definitions in Planiol and Ripert, supra n. 74, at 46; and Carbonnier, supra n. 74, at 46.

119 The term inerza in Italian law, or inerencia in Portuguese law. See Novissimo Digesto Italiano (Torino, 1960) vol. V, p. 75 Google Scholar, n. 7; Ascensão, O., As Relaoões Juridicas Reais (Lisboa, 1962) 277, 278 Google Scholar.

120 See Tedeschi, supra n. 110, at 161; Englard, The Law of Civil Wrongs, supra n. 115, at 14; Aubrey and Rau, supra n. 82, at 66; Marty and Raynaud, supra n. 55, at 485; Yiannopoulos, supra n. 63, at 365.

121 Salmond, supra n. 29, at 236.

122 Land Law, secs. 92-93.

123 Austin, J., Lectures on Jurisprudence (London, 5th ed., 1885) vol. II, p. 812 Google Scholar.

124 See Ginossar, S., Droit réel, propriété et créance: élaboration d'un système rationnel des droits patrimoniaux (Paris, 1960)Google Scholar. Extracts have appeared in Hebrew: “Proprietary Rights - A New Classification and Its Implications” (1978) 9 Mishpatim 5 and 182 Google Scholar; and in English: “Rights in Rem - A New Approach” (1979) 14 Is.L.R. 286 Google Scholar. See also “Rejoinder” (1979) 14 Is.L.R. 409 Google ScholarPubMed.

125 Ginossar, id. (9 Mishpatim), at 14.

126 See Austin, supra n. 123, at 812; Lawson, supra n. 116, at 148; Levontin, supra n. 61, at 404, 409; Levontin, , “Rights in Rem, etc. - A Response to Professor Ginossar” (1979) 14 Is.L.R. 401 Google Scholar.

127 See Tedeschi, G., “Servitudes in Gross” (1977) 7 Mishpatim 456, at 464 Google Scholar.

128 “Fencing Easement”, Gale on Easements (London, 14th ed., 1972) 37–42 Google Scholar.

129 Nicholson v. 300 Broadway Realty Corp. 7 N.Y. 2d 240, 164 N.E. 2d. 832 (1959).

130 Land Law, sec. 93(b).

131 Austin, supra n. 123, at 812. See also Tedeschi, supra n. 127, at 465 (in reference to an “obligatory” duty); Levontin, supra n. 61, at 405 et seq. (on the same point).

132 Gale, supra n. 128 at 37-42. Another property aspect of the positive duty we have discussed is inherent in the fact that the person bound by it can be released from it, whether by transferring ownership off the servient property, or by a unilateral action abandoning the servient property (something which is possible, for example, under French law). See Aubrey and Rau, supra n. 82, at 65-66. Compare Ginossar, supra n. 125, at 18-19.

133 Gale, supra n. 128, at 37-42.

134 Marty and Raynaud, supra n. 55, at 14.

135 Ibid.

136 Carbonnier, supra n. 74, at 51.

137 See Aberkane, H., Essai d'une théorie générale de l'obligation propter rem en droit positif français (Paris, 1957)Google Scholar.

138 “The expression ‘any person’ is ambiguous… [I]t could be construed so as to include the whole world, so that everybody would be subject to the same negative duty… or it could refer just to one particular person, whoever he might be (anybody), who might become subject to the obligation under discussion; and that is the situation that arises whenever a person buys encumbered property, that is, the consequence of a real obligation”. Ginossar, supra n. 125, at 190.

139 Hire and Loan Law, sec. 21. From the language of the section it appears that once the ownership has been transferred, the original lessor is released from his undertaking and the assignee takes his place. Contra Ginossar, supra n. 125, at 19, n. 63. Ginossar, too, might agree that if the transferee of the original lessor transfers ownership in the leased property, he will be released from the liability he incurred by virtue of owning the asset. In contrast with the original lessor, the transferee never had a contractual relationship with the lessee, and his liability to the lessee flows from his ownership of the asset. When he ceases to be the owner of the asset, he is thereby released from the obligations contained in the contract of lease. Compare Levontin, “The Nature of a Lease of Immovable Property”, supra n. 88, at n. 6.

140 Land Law, secs. 61, 62, 71. See Podgor v. The Land Registrar (1974) 82 P.M. 529, at 532.

141 Land Law, sec. 29. “A joint ownership agreement which has not been registered is an obligatory personal agreement, but upon registration of the agreement, as stated in sec. 29(a), ‘[It] shall be effective also with regard to a person who thereafter becomes a joint owner and every other person’. The same characteristic which the law grants to a registered agreement, that it is effective against every other person, is what gives it the character of a real right or a property right…” Bukovza v. The Registrar (1975) 29(i) P.D. 243, at 251-252 (per Justice Kahan).

142 This will be of practical importance if the charged asset is destroyed or if its value falls below the amount of the debt it is guaranteeing. In these cases the creditor has no personal claim to be paid in full against the person who acquired the charged asset. See Carbonnier, supra n. 74, at 51.

143 Goss v. Lopez 419 U.S. 565 (1975). A review of other United States precedents in which the application of the term “property” was extended can be found in Large, D.W., “This Land is Whose Land? Changing Concepts of Land As Property” (1973) Wisconsin L.R. 1039, at 1040 Google Scholar.

144 Alon v. Melnick, supra n. 73.

145 Ne'eman v. Mayor, supra n. 58.

146 Id., at 1956. An attempt was made to reconcile the two cases in Administrator of the Estate of D. Bogayer v. Administrator of the Estate of A. Bogayer (1962) 16(i) P.D. 150, at 160. See also Centre for Craftsmen and Artists Ltd. v. Wolovelsky Centre Ltd. (1960) 14(iii) P.D. 2101. In the latter two cases we find a repetition of the phenomenon that appeared in Alon and Ne'eman, but this time in the context of statutory tenancies. In Centre for Craftsmen and Artists the court held that from the point of view of the Land (Acquisition for Public Purposes) Ordinance 1943, a statutory tenancy has sufficient property elements to entitle the statutory tenant to compensation if the right is appropriated. In Bogayer, on the other hand, the question of how to classify a right to a statutory tenancy arose in connection with a succession dispute, and the court held that it was not a property right.

147 Supra n. 94.

148 Id. See also Alice Erh-Soon Tay, “Property and Law in the Society of Mass Production, Mass Consumption and Mass Allocation” ARSP (Archives for Philosophy of Law and Social Philosophy, Equality and Freedom Past, Present and Future) (Wiesbaden, 1977) 87, at 101. The author states that Reich did not intend to transplant these rights from administrative law into the framework of private law as real rights, but rather to reinforce the protection provided them with the tools and within the framework of administrative law.

149 See supra, text at nn. 83-94.

150 Subject to a number of limitations, of which the most important are that the contract should not be unlawful, immoral or contrary to public policy. See Contracts (General Part) Law, 1973, secs. 24, 30.

151 See Merryman, J.H., “Policy, Autonomy and the Numerus Clausus in Italian and American Property Law” (1963) 12 Am. J. Comp. L. 224 CrossRefGoogle Scholar.

152 In Israel this question arose before the passing of the Trust Law, 1979, which recognizes the institution of a trust. See Tedeschi, G., “On Private Trusts” (1946) 3 HaPraklit 306, at 307 Google Scholar; Dickstein, P., “Lacunae in the Law and Private Trusts” (1947) 4 HaPraklit 4, at 7 Google Scholar; Tedeschi, G., “More on Private Trusts” (1947) 4 HaPraklit 81 Google Scholar. The same question has arisen in Continental legal systems; see International Encyclopaedia of Comparative Law, vol. II, ch. 11, at 89–90 Google Scholar.

153 Levontin, A., On Marriage and Divorce Abroad (Jerusalem, 1957) 60 Google Scholar.

154 Civil Wrongs Ordinance, sec. 62. See supra n. 111 and text at n. 115.

155 See supra n. 115.

156 See Land (Settlement of Title) Ordinance (New Version), 1969, sec. 113: Land Law, 1969, sec. 38; Planning and Building Law, 1965, sec. 143.

157 See Lawson, F.H., Introduction to the Law of Property (Oxford, 1958) 80 Google Scholar; Megarry and Wade, supra n. 29, at 134; Yiannopoulos, supra n. 63, at 256. Special sensitivity to this matter was displayed in drafting the Code Napoleon, which sought to avoid the excessive fragmentation of title to land that existed in feudal times. See Yiannopoulos, id., at 255.

158 See Yiannopoulos, supra n. 63, at 255-256, 368; Planiol and Ripert, supra n. 74, at 54.

159 See Planiol and Ripert, ibid.; Arminjon, P., Nolde, B. and Wolff, M., Traité de droit comparé (Paris, 1950) vol. 2, pp. 200, 300 Google Scholar; id., vol. 3, p. 9; International Encyclopaedia of Comparative Law, vol. VI, ch. 11, p. 89 Google Scholar.

160 See Yiannopoulos, supra n. 63, at 368; Planiol and Ripert, supra n. 74, at 54; International Encyclopaedia of Comparative Law, vol. VI, ch. 2, p. 5 Google Scholar. French Law is not clear on the issue, and there are opinions on both sides. See Arminjon et al., supra n. 159, vol. 1, p. 385; Yiannopoulos, id., at 255-256.

161 “The numerus clausus rule… which has no apparent practical value, might be left to the museum of Begriffsjurisprudenz”. Bolgar, V., “Why No Trust in the Civil Law?” (1953) 2 Am J. Comp. L. 204, at 214 CrossRefGoogle Scholar. Nevertheless, the writer links the freedom required, in his opinion, for the creation of new property rights with the need to satisfy the notice requirement by registration at the Land Registry. See also Planiol and Ripert, supra n. 74, at 55; Arminjon et al., supra n. 159, vol. 2, at 338.

162 Arminjon et al., supra n. 159, at 479.

163 The steps mentioned in this connection consist principally of registration in a Registry open to public inspection. Some authorities include transferring possession of the asset as an alternative. See Arminjon et al., supra n. 159, at 338.

164 In England this was sufficient reason for the legislator to limit the number of possible real rights in land. There, an attempt to create a right in land of a kind not recognized by law could result in the creation of an equitable interest only (which could not prevent the legal owner from carrying out a transaction which would itself be free of the equitable right). See Lawson, supra n. 157, at 80, 83, 84; Megarry and Wade, supra n. 29, at 134.

165 There were the conclusions in France and Louisiana. See Yiannopoulos, supra n. 63, at 257, 279. Compare id., at 361.

166 (1969) 23(i) P.D. 715, at 722 (per Justice Kister).

167 (1975) 29(i) P.D. 477.

168 Id., at 481 (per Justice Kalian). It appears that the expression “right in land” (in the quotation) indicates a real right, according to its ordinary usage. See supra n. 73. The intention could not have been to refer to a personal right, because the open-list system applies to personal rights.

169 The list does not pretend to be exhaustive. It could include, for example, the Mandatory decision Suleiman v. Latin Patriarchate, Jerusalem (9 Pal. L. Rep. 641) which implies that there is a closed list of servitudes under Palestine law and that new types cannot be added. Furthermore, the fact that there was disagreement for many years as to whether private trusts should be recognized bears witness to the fact that recognition of the freedom to create new property rights was not common. See supra n. 152; Weisman, J., “Shortcomings in the Trust Law, 1979” (1980) 15 Is.L.R. 372 CrossRefGoogle Scholar, at n. 2. Support for a closed list of property rights can also be inferred from the decision in National Insurance Institute v. Revitsky (1966) 20(iii) P.D. 29. See Weisman, J., “Charging Corporation Assets” (1966) 22 HaPraklit 420, at 426–427 Google Scholar.

170 Feldman v. Israel Discount Bank Ltd. (1958) 12 P.D. 1402.

171 See Trustees of the Assets of Lichtenshein v. Shekem (1960) 14 P.D. 620.

172 See Zeltner, Z., Laws of Contract of the State of Israel (Tel Aviv, 1976, in Hebrew) sec. 2, pp. 153–154 Google Scholar; Dickstein, supra n. 152. Compare with Tedeschi, supra n. 152.

173 Contracts (General Part) Law, sec. 62(2).

174 On the background to sec. 61(b), and the possibility that it affects agreements creating property rights (“real agreements”), see Tedeschi, G., “Contracts (General Part) Bill, 1970” (1971) 3 Mishpatim 105, at 106 Google Scholar.

175 The section provides that a contract whose contents or purpose are contrary to public policy is void.

176 See supra n. 168. The margin heading of sec. 161 is “denial of equitable rights”, but the contents of the section are not limited to the topic of equitable rights. The legislative history indicates that there was no intention to restrict the Section to equitable rights. See (1969) Diverei HaKnesset 3757 (Knesset Memeber Una).

177 For example, in Continental legal systems, when an attempt was made to create a “trust” based on agreement, the result was that the beneficiary had a personal right or that the trustee was in the position of an agent. It was not accepted that both the beneficiary and the trustee had simultaneous property rights, as is the case with a property trust. See International Encyclopaedia of Comparative Law, vol. VI, ch. 11, p. 90 Google Scholar. Compare Mordov v. Shechtman, supra n. 167, at 481, where possibility arose that a contract which purported to create a hitherto unknown property right would be void, i.e., it would not even produce a contractual right.

178 The opposite impression could be obtained from the opinion of Justice Shereshevsky in Chashash v. Damari, supra n. 59, at 512(f-g): “The purpose of the Law is to prevent the creation of rights in immovable property by any method, if the fact of the right's existence does not appear on the Land Register, unless there is a specific statutory provision that such a right exists even if it is not registered”. As mentioned before, even if the right does appear on the Register, the law does not sanction its creation if it is not of a type contemplated by the legislature. In view of the provisions of the law which determine the procedures governing the registration of transactions, there is a separate question as to whether it is possible to register a transaction purporting to create an unrecognized real right, or whether registration is limited only to those rights recognized by law. In view of sec. 161, which prohibits the creation of new real rights, there is no point in elaborating on this question. However, in other legal systems which recognize an open list of property rights, subject to a duty to register the rights in the Land Registry, the view has been expressed that since registration regulations are limited to rights recognized by the law, no practical advantage can be gained from applying the principle of an open list. See Planiol and Ripert, supra n. 74, at vol. III, p. 55; Yiannopoulos, supra n. 63, at 257.

179 Land Law, secs. 2-5, ch. 6 on “condominiums”; Trust Law, secs. 99-106.

180 Yiannopoulos, supra n. 63, at 368.

181 Land Law, sec. 5; see also secs. 92-98.

182 Land Law, secs. 6, 7, 124. A questionable exception is sec. 94, which permits the creation of an easement on the basis of prescription and without registration.

183 Land Law, secs. 61, 62. Podgor v. The Registrar, supra n. 140, loc. cit.

184 Land Law, sec. 29. Bukovza v. The Registrar, supra n. 141, at 251. As to the co-ownership of personal property, the law provides that the provisions of the co-ownership agreement shall be effective against a third party, provided that the third party knew or ought to have known of the existence and terms of the agreement. Movable Property Law, sec. 9(c).

185 Sec. 4 mentions the following ways of satisfying the requirement to give notice: deposit, registration or bringing the existence of the pledge to the notice of third parties. The third possibility appears to provide great flexibility, but in practice it is of little consequence. Bringing the security interest to the notice of third parties will net afford affective protection to the person who holds a security interest should the debtor become bankrupt. If a security interest is to be enforceable in the debtor's bankruptcy, the creditor must therefore choose one of the other specified methods for giving notice (deposit or registration). With regard to a mortgage of real property, or of a boat, there are special statutory provisions which negate the freedom granted by sec. 2(b) of the Pledges Law. See Weisman, supra n. 65, at 61-69.

186 See supra n. 178.