I first visited Jerusalem in 1941. I was looking forward to an agreeable sick leave after a small flesh wound in the desert. Unfortunately as the train moved slowly up from Lydda, I felt more and more ill and finally I collapsed on the platform of Jerusalem station and was removed on a stretcher to a requisitioned Italian hospital. A ridiculous small insect had infected me with a tiresome small disease.

My visit was less disagreeable than its unfavourable beginning would seem. I soon recovered from my sandfly fever, but as they had carelessly placed me in a bed next to a patient suffering from diphtheria, I was incarcerated in the hospital, or so they supposed, in quarantine for another fortnight. This was not quite so aggravating as one might think. The Italian hospital was furnished with an outside staircase just opposite my bed, and after my temperature had been taken in the morning I escaped by it for most of the day. If I was missed, no one informed me, and, as I suppose it is now too late to court martial me, I can explain that with the fortnight's quarantine and the effective sick leave which followed (I spent it at Amdursky's Central Hotel in Ben Yehuda Street) I visited most of the sacred spots without either a professional guide or a Baedeker, except my grandmother's grounding in the Bible. It was not a bad way to see the holy city since, in the middle of the war, there was not much commercialisation, and no one paid much attention to a slightly bandaged lieutenant in the Rifle Brigade wandering about the city and its neighbourhood.

In an epoch of inflation of the kind in which we are now living, the question of the correct date for assessing damage has come to be widely discussed. Should it be the date when the tort or breach of contract was committed, as the crystallisation doctrine urges? Or instead of the “date of the tort” or the “date when the damage occurs” should some other point of time be chosen, either the date of judgment or the date of payment? Or, more radically, should no particular date be adopted but subsequent events be taken into account in determining the existence and scope of the damage and assessing it, in so far as these events affect the damage, in the light of the proper interest of the injured party? (see infra, part 3).

One of the recurring issues of Israel labour law has been whether an employee may validly waive statutory rights conferred upon him. This issue had led to a head-on collision between the Supreme Court and the Labour Court, with the latter adopting a position directly contradicting the Supreme Court's precedents on this issue.

On certain issues the Courts are in agreement. Both concede that a waiver is unenforceable where the employee is unaware of his statutory rights. Both concur that labour legislation is cognitive in nature and that an employee may not initially “contract-out” statutory rights conferred upon him. However where the right has already “accrued”—that is, where the employee is entitled by law to claim certain statutory benefits as a result of past employment—the Courts are in open conflict. The Supreme Court has adopted the position that an employee may waive such existing and accrued rights by agreement, may compromise them by settlement and may submit any disputed issue respecting them to an arbitrator for determination.

In a previous paper it was argued that neither the tacit consent theory nor the opinio juris theory were by themselves capable of explaining the nature of customary international law, although each of them does indeed stress an important aspect—the tacit consent theory that custom is a lawmaking process, and the opinio juris theory that there must be some difference between customary law and practices which do not express, or do not give rise to law. What has to be done is to reformulate these approaches in such a way as to preserve the insights of each, while avoiding their errors.

A good starting point is the older tacit consent theories of the Civilians and Canonists, which were described in the previous paper. Their approach has the following characteristics:

i) By “consent” they mean, not contractual consent, but simply the intention to create law; therefore—

ii) they are able to admit that custom can bind individuals that have no part in its creation, even without their consent;

iii) they consider that the rules of customary law are binding absolutely, and not merely on a reciprocal basis; and

iv) finally, these jurists show an awareness of the fact that the conditions which regulate the formation of customary law are themselves rules of law, rather than necessary truths that can be deduced from the nature of custom.