A. Soundness of mind at the time of committing an offence is complementary to mental maturity as a condition for the criminal capacity of the perpetrator and is thus a condition for the criminality of his act. Accordingly, the perpetrator's mental disorder limits the criminality of his act, although not every such disorder has such radical legal consequences. If the disorder is cognitive, it must be such as to prevent the person from understanding the physical or social meaning of his conduct: if it is volitional, it must be such as to prevent him, at the time of his act, from choosing between performing the act and refraining from doing so. These are symptoms of mental disorder that negatives the criminal capacity of a person, and each of them is a necessary, but not a sufficient, condition. It is essential that this be due to a disease of the mind or an organic defect of reason. The disorder in question is therefore a radical one, and one that is also chronic if not permanent in nature, as opposed to temporary or less deep-rooted conditions such as a disturbed state, a trauma or emotional condition, impulsiveness in certain matters or urges that deviate from the normal in certain areas.

B. The following remarks are confined to the absence of criminal capacity on the volitional level, to which we shall refer in short as “volitional insanity’. This is the case where the person at the time of his act did not have a choice between acting or not acting due to a disease affecting his mind. This case is also referred to as the commission of an act as a result of an irresistible morbid impulse.

“Self-determination”, the famous catchword of World War I, has become one of the most potent political slogans of our time. In its name battles continue to be waged, and no continent—and scarcely any country—is immune from its grip. The use of force within the most recent period alone in such diverse places as Grenada, Lebanon, the Falkland Islands, Afghanistan, Chad, Angola, Namibia, Punjab, and Kampuchea was related in some way or other to the issue of self-determination. Within the UN, self-determination is viewed by the majority as a kind of “supernorm”, a principle which has been lifted from the realm of politics and morality to the very pinnacle of legal rules. According to this perspective, even the linchpin of the UN Charter, the principle prohibiting the threat or use of force in international relations (Art. 2, para. 4), may be overridden in the name of the more sacred “right of self-determination”.

A resolved to kill X and equipped himself for this purpose with a bottle containing poison. When X dined at A's house, A secretly poured some of the contents of the bottle into a drink that he offered X. X downed the drink but suffered no ill-effects since A's wife had, without his knowledge, poured away the poison and filled the bottle with water (first case).

B put his hand into Y's coat pocket in order to pick its contents. His fingers scoured the pocket and found it to be empty. Alternatively, B fired at an empty bed with intent to kill Y, who was supposed to be in it (second case).

The right of citizens to demonstrate has been in the news of late. Recent events have led many citizens in Israel to take to the streets as a means of expressing their opposition to, and in some cases support of, government policies, actions or leaders. Following a pattern which is not unusual in Israel, some aspects of this issue have found their way into the courts and on to the table of the Attorney General. Thus, the refusal of the Jerusalem police to grant a permit for a demonstration through the main streets of the city, exactly one month after the tragic murder of Emil Grunzweig during a Peace Now demonstration, led the disappointed applicants, with the active support of the Association for Civil Rights in Israel (ACRI), to petition the Supreme Court. The Court overruled the police decision and ordered the police to grant the licence. On the 1st April, 1983, following repeated requests by the ACRI, the Attorney General issued directives reaffirming the right of citizens to demonstrate and clarifying the powers of the police to disallow or interfere with demonstrations. That one of the two dailies with the largest circulations in Israel saw fit to publish the full text of these directives in its holiday edition is an indication of the interest which the public has in the issue.

The United States has been involved in the question of Jerusalem ever since the American government assumed a major role in promoting adoption of the Palestine Partition Resolution at the United Nations in 1947. The continuing centrality of the Jerusalem issue in the Arab-Israeli dispute is attested to by the references to Jerusalem in the 1982 Reagan Plan for Peace in the Middle East. Even more significant is the fact that although the Jerusalem issue did not figure in the text of the 1978 Camp David Agreements, it was the subject of three separate letters appended to the Agreements by Prime Minister Begin, President Sadat and President Carter. In fact, it is no secret that the Camp David Talks nearly foundered at the last minute over the Jerusalem question. Moreover, it is noteworthy that the United States, which signed the Agreements simply as a witness and not as a party, found it necessary and proper to publicly define its position on the issue of Jerusalem. On no other issue did the American government feel compelled to put forth an official independent viewpoint in the final documents.

This was an Additional Hearing granted by leave of the President of the Supreme Court for the purpose of considering the incidence, ratione personae, of the good faith requirement established under sec. 12 of the Contracts (General Part) Law, 1973. The significance of the decision lay in the question of the liability of agents and company directors who negotiate contracts to which they are not themselves party. In particular, the Court was called upon to consider whether, on the basis of sec. 12, a company director negotiating a contract solely on the company's behalf could be held personally liable in relation to that contract, or whether he could seek refuge behind the corporate veil.

The respondent, David Castro (hereafter: the Purchaser), had negotiated with Yosef Pnini (hereafter: the Appellant) for the purchase of an apartment to be built by Pnidar, Development and Building Investments Company, Ltd. (hereafter: the Company). The Appellant was manager of the Company, and he and his wife were the sole stockholders. The Appellant and the Purchaser signed a standard-form preliminary agreement which the Company used for the sale of apartments in buildings that it constructed, and the Purchaser made all payments due for the purchase of the apartment. During the course of negotiations it was not revealed to the Purchaser that neither the Company nor the Appellant owned the property upon which the apartment was to be constructed.

Personal characteristics may be relevant to criminal liability in one of two cases. Firstly, in offences which can only be committed by an actor with a special status (offences of delicta propria): for example, bigamy, committed by a “married person”; perjury which only a “witness” can commit; corruption by a “public servant”. Secondly, where the personal characteristic either aggravates or mitigates the basic offence. Thus, in Israeli law, parricide —killing one's parents—defined in sec. 300(a)(1) of the Penal Law, 1977, is an aggravated form of manslaughter; while infanticide—where a mother kills her newborn baby is, according to sec. 303(a) of the Law, a mitigated form of either murder or manslaughter. Similarily, stealing by an employee, according to sec. 391 of the Penal Law, is an aggravated form of theft; and stealing by public servant, according to sec. 390, is an even more aggravated form of stealing by employee.

In this paper I shall limit myself to the second set of characteristics. My aim is to examine the solution required under the law of complicity in instances where the personal characteristic, which either aggravates or mitigates the offence, obtains only in one of the participants. Will the secondary party, who either instigated or aided a son to kill his father, be held liable as an accomplice to the aggravated offence of parricide committed by the son? Will a similar conclusion be applied where the accomplice instigated infanticide? What about an employee who aided another to steal from his employer? And to what offence will the principal offender in that case be held liable?

Rescission is one of the most important activities in the law of contract. The right or the possibility to rescind is no less important than the right to specific performance or damages. Indeed, in many cases, when specific performance is either undesired or impossible, and no harm entitling damages has been caused, it will be the major right.

Despite this importance, Israeli contract laws have left many questions regarding rescission open (e.g. the character of the rescission, its range, contents and results regarding both contracting parties and third parties). The silence of the Israeli legislature in these matters is typical of Israeli civil law legislation in which major areas of law are condensed into a few laconic provisions. This attitude leaves much room for construction of the statute and for judicial legislation.

In our previous article we dealt with the definition of employee for income tax purposes. We concluded that in the present state of the law in Israel the courts are obliged to depart from the accepted definition of this term as applied in labour law and the law of torts and develop an independent functional test more suitable to tax law. We stressed that this conclusion was based on the existing law in Israel, namely the provisions on the Income Tax Ordinance, which treats taxpayers who are employees as a special category.

In the present article we wish to look at the problem from the broader perspective of the lex ferenda. Our remarks are addressed primarily to legislators and policy-makers, and not, as the previous article, to the courts and the tax ordinance commentators.

The prestigious American Law Institute is in the process of promulgating a revised Restatement of the Foreign Relations Law of the United States. The present Restatement on the subject was adopted in 1962 and finally promulgated with revisions in 1965. Work on a revised restatement began in the late 1970s and the first tentative draft was submitted to the Institute in 1980. Thus far, five tentative drafts have been presented to the members of the Institute for their consideration and the Restatement as a whole is scheduled for consideration by the members of the Institute at its annual meeting in May 1985.

The American Law Institute is a private organization of jurists, not a legislative body, and the Restatements are not official codifications. However, since the Institute membership includes some of the most noted scholars, judges and practitioners in the United States, the Restatements carry great weight and are often cited by United States courts in their decisions.