¹ The text of the Law appeared in (1970) 5 Is.L.R. 292.

² See Yadin, U., “Reflections on a New Law of Succession”, (1966) 1 Is.L.R. 132, 141.Google Scholar

³ Compare Yadin, U., “Interpretation of the Bailees Law”, (1968) 24 Hapraklit 493, 494Google Scholar with Landau, M., “Rule and Discretion in the Administration of Justice”, (1969) 1 Mishpatim 292, 298Google Scholar, and Shilo, Y., “Interpretation of the Bailees Law”, (1968) 25 Hapraklit 102.Google Scholar

⁴ Draft Land Bill, 1964, section 237.

⁵ 169 sections apart from the Schedule.

⁶ See the remarks of the Minister of Justice, Joseph, Dov, on the first reading of the Bill (1964) 40 Divrei Haknesset 2127Google Scholar.

⁷ See remarks of the Chairman of the Constitution and Law Committee, Unna, M., on the second and third reading of the Bill (1969) 55 Divrei Haknesset 3756Google Scholar.

⁸ See explanatory note to the Draft Bill, 1964, Hatzaot-Hok, 1964, pp. 178, 207. As an example of the influence of Jewish law see section 21 (b), andthe remarks of the Chairman of the Constitution and Law Committee on this section (1969) 55 Divrei HaKnesset, 3759.

⁹ See Knesset Member, Bader, Yohanan, (1964) 40 Divrei HaKnesset 2326Google Scholar.

¹⁰ See criticism in Salmond, , Jurisprudence, (12th ed., 1966) London, p. 432.Google Scholar

¹¹ See criticism in Weisman, J., Co-ownership, 1962, Thesis, p. 235–238 (in Hebrew).Google Scholar Also Weisman, J., “Termination of Co-ownership in English Land Law,” Studies in Law in Memory of Abraham Rosenthal, Magnes Press, Jerusalem, 1964, p. 204Google Scholaret seq. (in Hebrew).

¹² As to the limited effect of the latest legislation on the complexities of English land law see Megarry, and Wade, , The Law of Real Property (3rd ed., 1966) London, pp. 1, 2.Google Scholar

¹³ Ginossar, S., “Israel Law: Components and Trends” (1966) 1Google ScholarI.S.L.R. 380, 381.Google Scholar

¹⁴ In addition to the above-mentioned Article 46 of the Order in Council, the following provisions have also served as sources for the application of equitable rules to land: Land Courts Ordinance, 1921, section 8, and the Land (Settlement of Title) Ordinance (New Version), 1969, section 44.

¹⁵ See survey of developments leading to the recognition of equitable title in Doukhan-Landau, L., Equitable Rights to Land, Jerusalem, 1968Google Scholar. (reviewed in (1969) 4 Is.L.R. 165).

¹⁶ Razabi v. Razabi (1955) 9 P.D. 520.

¹⁷ Custodian of Absentee Property v. Obid (1962) 16 P.D. 2649.

¹⁸ Amrami v. Dahbash (1961) 15 P.D. 1557, and cf. “Shelev” United Transport Cooperative Ltd. v. Neve Harari Moav Ltd. (1967) (I) 21 P.D. 617.

¹⁹ Machlin v. Gorefi (1946) S.D.C. 281, and cf. Szupak v. Rapaport, (1956) 12 P.M. 399.

²⁰ v. Friedman (1958) 12 P.D. 626.

²¹ Slutzki v. Amidar (1960) 14 P.D. 2373.

²² See section 161. It would seem that the legislative intent couldhave been expressed more precisely than it was in this section. An aid towards revealing the legislative intent may be gained from the marginal note of the section. See likewise the remarks of the Chairman of the Constitution and Law Committee, Unna, M., on the secondand third reading of the Bill (1969) 55 Divrei HaKnesset, pp. 3757, 3758Google Scholar: “Special mention should be made of two particular changes…and the second—the abolition of unregistered real rights which are known to us from English law, and in particular equitable rights, for which there is no place in a system of public registration” p. 3757. “…the intention is to abolish equitable rights, with all thelegal dialectic attached thereto by English law” p. 3758.

²³ See section 163 of the Law. The subordination to other statutoryprovisions recognising equitable rights can also be traced to the wording of section 161, which does away with equitable rights. The section says: “…there shall be no right in immovable property save under an enacted Law”. It follows that if any other statute recognises the validity of equitable rights we are bidden by section 161 itself to recognise such rights since they are, in the words of the section, “under an enacted Law”.

²⁴ Section 44. As to the significance of settlement, see below.

²⁵ Goadby, F.M. and Doukhan, M., The Land Law of Palestine, Tel-Aviv, 1935, p. 269Google Scholaret seq.

²⁶ Land (Settlement of Title) Ordinance (New Version), 1969, section 44. (This section remained in force even after the Land Law came into effect. The provision as to repeal in section 158 (10) relates the sections of this Ordinance according toits previous version).

²⁷ Section 29 of the Ordinance.

²⁸ Section 161. See in particular the marginal note. On the significance of marginal notes in interpretation of Israeli enactments, see Baker, H.E., “Use of Marginal Notes in the Interpretation of Statutes”, (1958) 5 Scripta Hierosolymitana, 219, 227.Google Scholar

²⁹ See sections 6, 10, 14, 45, 126–130, 134, 135, 138, 159, 161, 166.

³⁰ See: Allon v. Melnik (1956) 10 P.D. 486, 492, 502. See also Haker v. Barash (1954) 8 P.D. 566, 571. And cf. Neeman v. Mayor of Tel-Aviv (1956) 10 P.D. 1942, 1967, 1972, 1981, dealing with the special meaning of the expression “interest in land” in English case law.

³¹ See title of Chapter 7 of the Land Law.

³² See e.g., Cheshire, G.C., The Modern Law of Real Property, (9th ed., 1962) p. 60.Google Scholar Cheshire regards equitable rights as rights in personam, whereas Megarry, and Wade, , The Law of Real Property (3rd ed.,) at p. 120Google Scholar, regard themas rights in rem. See also Nathan's, Equity through the Cases. (4th ed., 1961) pp. 40–50.Google Scholar An enlightening survey of the differing views on this matter maybe found in Neeman v. Mayor of Tel-Aviv, see above, note 30. At any rate, it will not be possible in the future to recognise equitable rights by employing Article 46 of the Palestine Order in Council to fill a newly created lacuna. Article 46 canno longer be applied to land since the Land Law came into force. See section 160 of the Law, and p. 381 above.

³³ See section 9, and see also sections 126 and 127 dealing with the possibility of registering a caveat and the results of such registration.

³⁴ Neeman v. Mayor of Tel-Aviv (1956) 10 P.D. 1942 at 1981.

³⁵ Ibid. at 1972.

³⁶ See Land Law, 1969, section 163.

³⁷ From the conclusion that a right which has accrued from an undertaking to execute a transaction in land is an “interest in land” under the Land (Acquisition for Public Purposes) Ordinance, 1943, it does not necessarily follow thatsuch a right is also a “right in land” under section 161 of the Land Law, 1969. The expression used in the Land Law apparently means a real right in land (see below note 104), whereas in defining the meaning of “interest in land” under the Land (Acquisition for Public Purposes) Ordinance the court purposely refrained from identifying this expression with the concept of property right, see Neeman v. Mayor of Tel-Aviv (1956) 10 P.D. 1942 at 1969, 1970. However, even if no distinction is made between “interest in land” and “right in land”, in these twoenactments, section 161 does not preclude recognition of the right deriving from an undertaking to carry out a transaction in land as a “right in land”. Section 161 precludes the recognition of a right in land which is not by statute. The right deriving from an undertaking to carry out a transaction in land is also a right “by statute”—namely, the Land law itself, section 9 of which deals with this right. This latter argument is of course not consistent with what is said above, at p. 386. The following question is more problematical: it has been decided that statutory tenancy comes intobeing not only on the termination of a legal lease but also on the termination of an equitable lease. See Maspero Ltd., v. Tel-Aviv Development Co. Ltd., (1956) 10 P.D. 89; Todoris v. Rapaport (1966) (1) 20 P.D. 85, at 96. What will the result be today, after the abolition of equitable rights in land?

³⁸ See remarks of the Minister of Justice, Joseph, Dov, in the Knesset on the first reading of the Bill (1964) 40 Divrei HaKnesset 2130, 2133Google Scholar.

³⁹ On this, see in particular the Planning and Building Law, 1965.

⁴⁰ The main enactment in this matter is the Land (Acquisition for Public Purposes) Ordinance, 1943.

⁴¹ Such as the Basic Law: Israel Lands, 1960; the Israel Lands Law, 1960; the Israel Lands Administration Law, 1960 (14 L.S.I. 48–52).

⁴² See the Petroleum Law, 1952; the Water Law, 1959 and the Mandatory Mining Ordinance, 1925.

⁴³ This subject is dealt with mainly by the Tenant Protection Laws,1954 and 1955, the Key Money Law, 1958 and the Tenant Protection (Miscellaneous Provisions) Law, 1968.

⁴⁴ An exception to this can be found e.g., in section 165 of the Law, dealing with amendments to the Civil Wrongs Ordinance.

⁴⁵ See sections 84 and 91 of the Law. Cf. the definition of mortgage in section 4, based on the general laws of pledge and the self-sufficient definitions of ownership, lease and easement in sections 2, 3 and 5. See also the general régime on the subject of co-ownership (sections 27–36) and severance of co-ownership (sections 37–45).

⁴⁶ See the Pledges Law, 1967.

⁴⁷ Cf. section 29 (a) and section 62 (c), as to the validity of the document concerned as against “any other person”. See the provision restricting transferability in section 34 (b), in view of the lack of such provision in respect of condominiums (these matters will be discussed below, in the section on co-ownership. The same applies to the right of set-off between co-owners (section 36) and the right of indemnity (section 32 (b)).

⁴⁸ The Land (Settlement of Title) Ordinance (New Version), 1969, section 44 and the Land Law, 1969, section 161.

⁴⁹ See e.g., the Sand Drift Ordinance, 1922, section 15, which refers to matruke land and the Protection of Cultivators Ordinance, 1933, section 2 whichrefers to miri land.

⁵⁰ See Land Law, 1969, sections 79(a), 83 and Gift Law, 1968, sections 5(a), 1 (b). The key to the lack of adjustment may perhaps be found in the words “mutatis mutandis” in section 83 of the Land Law. The “necessarychange” where a gratuitous lease, which is in effect a gift, is concerned, is the necessity for a written instrument. However it is doubtful whether the mere use of the magic formula “mutatis mutandis” sufficiently stresses the necessary adjustment to be made between the Land Law and the Gift Law. As to the misuse of the technique of “mutatis mutandis” see the following remarks in the text. As to the Gift Law, see Landau, L. and Rakover, N., “The Gift Law,” (1969) 4 Is.L.R. 260.Google Scholar

⁵¹ As to legislation by reference see Angelesco, C., La Technique Législative, Paris, 1930, p. 555Google Scholar. Thring, L., Practical Legislation, Toronto, 1902, p. 52Google Scholar, criticises this method of legislation, saying: “the maxim that repetition is better than ambiguity should be constantly borne in mind”. See also Craies, On Statute Law, (6th ed., 1963) pp. 30–31.

⁵² See, e.g., section 46 which states that the provisions relating to a person who builds on another's land shall apply “mutatis mutandis” to the case of a co-owner who builds on land subject to co-ownership. How, for example, are we to apply section 23 (a) (2) which requires a comparison to be made between the investment in the construction of the building and the value of the land? In valuing the land, should the value of the share of the person who builds also be considered? Again, take a co-owner who builds bona fide. Does his right to acquire the property, under section 23, arise only after the other co-owners have not requested severance of the co-ownership as provided by section 46? If this is so, why is a trespasser who builds, given greater rights than a “partial trespasser” (a co-owner) who builds? Or take the example mentioned above of the application of the laws of hiring to the right of gratuitous lease “mutatis mutandis” (note 50). In view of this, is one to understand section 79, which provides that an undertaking to effect a lease not exceeding a certain period does not require a written instrument, as implying that an undertaking to effect such a gratuitous lease also does not require a written instrument? This conclusion, which seems obvious, contains a difficulty arising from section 5 (a) of the Gift Law, 1968, which requires a written instrument for an undertaking to effect a gift (and borrowing would be included in the definition of “gift” in section 1 of that Law). What, then, is the “necessary alteration” here? Again, how is one to apply section 80, which says that where there is competition between two lessees of the same property, the second is to be preferred, if he bona fide takes possession earlier? Will a gratuitous lessee be so preferred to an earlier lessee? What in this case is the “necessary alteration”?

⁵³ See, e.g., the Sales Law, 1968, which states in section 3 that the provisions of that Law should apply to exchange “mutatis mutandis”. Which of the parties to the exchange is to fulfil the obligations of the seller, and which those of the purchaser, where these two sets of obligations are inconsistent in the sense that they cannot be fulfilled concurrently by the same person? What are the “necessary alterations” here?

⁵⁴ Pound, R., Jurisprudence, 1959, Vol. 2, p. 246.Google Scholar

⁵⁵ Justice Landau, M., in his article “Rule and Discretion inthe Administration of Justice” (1969) 1 Mishpatim 292 at 298.Google Scholar

⁵⁶ Ibid., at 302.

⁵⁷ Pound, op. cit., supra note 54, at 246, n. 74.

⁵⁸ Law on the Partition of Land Owned in Common, 1914, section 2.

⁵⁹ It is interesting that in the various legal systems examined by the present writer, no such arrangement as that adopted by the Land Law has been found.The usual method is to limit the validity of an agreement not to sever the coownership to afixed period of years, after which the co-owners are free to demand severance despite anyagreement between them. See Arminjon, P., Nolde, B., Wolff, M., Traité de Droit Comparé, Paris, 1950, Vol. 1, p. 418–20.Google Scholar and also: Civil Code of Japan, EHS Law Bulletin Series, Tokyo, 1966, para. 256. The Egyptian Civil Code, Le Journal du Commerce et de la Marine, Alexandria, 1952, para. 834. Code Civil de l'Empire d'Ethiopie, Librairie Générale de Droit et de Jurisprudence, Paris, 1962, para. 1274. Cf. the position under Italian law—Arminjon op. cit., at 419, and Novissimo Digesto Italiano, Terza edizione, 1957, Vol. 3,pp. 873–4.

⁶⁰ Ottoman Magistrates Law, 1913, section 24.

⁶¹ E.g., the power of the Inspector of Condominiums to fix, “according to the circumstances,” the extent of the share of the common property attached to a particular apartment, under section 57 (c); the discretion of the court to order registration of a house as a condominium in the course of proceedings for the severance of co-ownership in land, without any indication being given as to what extent the court may then ignore the usual requirements applicable to the registration of a condominium (see sections 42 and 143); the discretion of the court to order a trespasser to pay a reasonable rent on condition that the court “considers it just in the circumstances”, without applying criteria for granting “mesne profits”(section 24); and other similar instances.

⁶² Justice Landau, op. cit., supra note 55 at 298. On the shortcomings of judicial legis lation, see also Miller, A., “Statutory Language andthe Purposive Use of Ambiguity”, (1958) 42 Va.L.R. 23, 36, 39.CrossRefGoogle Scholar

⁶³ Hatsa'ot Hok (1964), p. 207.

⁶⁴ (1964) 40 Divrei HaKnesset 2128.

⁶⁵ (1969) 55 Divrei HaKnesset 3757.

⁶⁶ The differences in the rules applying to the various categories of land became narrower in the course of time. Special mention should be made in this respect of the Succession Law, 1965, which abolished the distinction between mulk andmiri land in all matters relating to testate succession. However, not all differences between the various categories were removed, so that the Ottoman classification was still of some importance.

⁶⁷ See above, in the section on “Sources of the Law”, p. 384.

⁶⁸ Land within the boundaries of towns and villages was considered mulk land, in accordance with the boundaries of such places as they existed in 1858. See Kattan v. Kattan (1944) 11 P.L.R. 408. Land was considered mewat if it was situated more than a certain distance from a populated place. For this purpose also boundaries were fixed as of the year 1858. See Su'aad v. State of Israel (1966) (II) 20 P.D. 3.

⁶⁹ Section 162 (2). As to the meaning of the expression unsettled land, see above, the section on “Sources of the Law”, p. 384.

⁷⁰ Draft Land Bill, 1964, section 231.

⁷¹ See above, pp. 381–2.

⁷² The way in which the Ottoman classification was abolished was also defective in other respects, apart from the subjects of mevqufe and limitation. Thus, for example, section 153 provides that ownership of miri shall henceforward be considered full ownership. The Law does not go to the trouble of explaining in whose favour such full ownership is instituted. Presumably the intention was to confer such ownership on the private occupier who had previously had the right of possession and use only (the tessaruf), but there is no specific provision as to this. The Bill contained specific provisions in this matter, and no advantage is gained from their omission. (The text of the Bill was as follows: “land which, immediately prior to the date when this Law comes into force, was classified as miri shall be in the ownership of the person who had the tessaruf thereof”—section 229). Furthermore, section 156 provides that the grant of full ownership in miri land will not detract from rights existing in such land immediately prior to the Law taking effect. How is it possible to grant full ownership in miri to the private occupier, who hitherto only had the right of possession and use (the tessaruf) without confiscating from the State the bare ownership in miri land which it had previously (the raqabe)? In other words, the abolition of miri of necessity causes the diminution of previously existing rights in the land, and this cannot be reconciled with the wording of section 156. The same difficulty arises in respect of land of the category of metrukeh. The abolition of this category by section 154 necessarily involves the abolition of rights of those whose needs were previously served by such land (such as pasture land belonging to villagers which is situated beyond the confines of the local authority to which the village belongs). Where on the one hand metrukeh is abolished and at the same time section 156 provides that such abolition should not derogate from existing rights in land, this is a patent contradiction. Apparently the legislator did not intend to include in section 156 rights derived from the Ottoman classification as such, but this is not expressly stated in the section.

⁷³ See (1964) 40 Divrei HaKnesset 2338. In the term State-owned land we include in this context all land included in the term “Israel lands”, namely State lands, lands of the Development Authority and of the Jewish National Fund. See Basic Law: Israel Lands, 1960, section 1.

⁷⁴ Basic Law: Israel Lands, 1960, section 1; Israel Lands Law, 1960, section 2. The Law permits the transfer of ownership in 100,000 dunams of Israel lands. According to information received from the Israel Lands Administration, up to now 34,000 dunams have been transferred to private ownership.

⁷⁵ The Israel Lands Administration Law, 1960, section 3.

⁷⁶ The Council consists of fifteen members. Seven are nominated by the Jewish National Fund and eight by the Government. The formal appointment of the whole Council is as already stated, in the hands of the Government. According to information received from Israel Lands Administration, the Government appoints its representatives from among civil servants in various departments.

⁷⁷ In Weinrauch v. Israel Lands Administration (1969) (I) 23 P.D. 491, at 494, the arrangement concerning the right of a lessee fromthe Israel Lands Administration to transfer his interest and the “consent fee” imposed on such transfer were criticised by the court. Veiled criticism of conditions in lease agreements for occupants of condominiums built on Israel lands was expressed in Moshe v. Representative Body of Condominium at 10, Ben Gamla Street, Jerusalem (1969) (I) 23 P.D. 688, at 691. See also remarks of Knesset member S. Z. Abramov, on the first reading of the Land Bill (1964) 40 Divrei HaKnesset 2278. In Oman v. The Israel Lands Administration (1969) 66 P.M. 284 it was held that the above-mentioned condition regarding the obligation to desist from work on the Sabbath, is not valid in view of the Standard Contracts Law. The appeal to the Supreme Court against this decision terminated in a compromise. For a note on this case see p. 474 below. On the Standard Contracts Law, see Hecht, A., “The Israel Law on Standard Contracts”, (1968) 3 Is.L.R. 586.Google Scholar

⁷⁸ On leases of the Jewish settlement institutions from the period before the establishment of the State, see: Weisman, J., “The Kibbutz: Israel's Collective Settlement”, (1966) 1 Is.L.R. 99, 101, 102.Google Scholar

⁷⁹ Haker v. Barash (1954) 8 P.D. 566. Cf. Haikin v. Mamar (1965) (IV) 19 P.D. 183 at 190. See also criticism by Prof. Levontin, A. in his article “The Nature of the Lease of Land” (1954/1955) 11 Hapraklit 254.Google Scholar

⁸⁰ See above, p. 391.

⁸¹ Another enactment where the principal subject is replaced by a subsidiary one is the Bills of Exchange Ordinance (New Version), 1957. The attention of the Ordinance is focused mainly on bills of exchange, while its treatment of promissory notes and cheques is subsidiary, whereas in reality the position is the reverse.

⁸² A further example of a subject the treatment of which by the Law ignores the common phenomenon of the long-term lease of land may be found in the chapter on “Building and Planting on the Immovable Property of Another” (sections 21–26). When a person builds on land which is leased to another for a long term, then the substantial interest in leaving the fixtures or demanding their removal is that of the lessee and not of the owner. Furthermore, this chapter does not consider the question of a person building bona fide from mistaken belief that the land is leased to him. See section 23.

⁸³ See the definition of “public land” in section 107. The meaning of this category will be considered below.

⁸⁴ This emerges from the travaux préparatoires to the Law. On the distinction between these two categories of property in French law, see Laubadère, A. D., Traité élémentaire de droit administratif, (3rd ed., 1963), p. 114Google Scholaret seq.

⁸⁵ Ibid., at 160, 164. The restrictions on transactions in domaine public is not confined to transfer of ownership, but applies also to other transactions. For convenience, reference will be made below only to the restriction on the transfer of ownership.

⁸⁶ Laupadère, op. cit., at 131, 161; et Ripert, Planiol, Traité pratique de Droit Civil Français, 1952, Vol. 3, p. 128Google Scholar; Klein, C., La police du domaine public, 1966, Paris, pp. 16–18Google Scholar. See also Prof. Klinghofer, , Administrative Law, 1957, at 141Google Scholaret seq. (in Hebrew). Sandulli, A. M., Manuale di Diritto Amministrativo, (10th ed., 1969) Naples at 481.Google Scholar

⁸⁷ See e.g., sections 93, 94 of the Ottoman Land Code, 1858.

⁸⁸ Land Law Amendment (Conversion of Metrukeh) Law, 1960, section 1. See also the Mejelle, section 1217.

⁸⁹ See, e.g., Attorney-General v. Issa Darawsha (1958) 12 P.D. 1997.

⁹⁰ Inter alia, it is worth considering, the question whether the conversion of land into reserved land of the category known as domaine public artificiel (such as roads, railways and airports) should not be subject to some formal act (the affectation of French law). Without such a requirement, various difficulties are likely to arise, as on the laying of a temporary diversionary road for use during the repair of a main highway. Such temporary road may become “reserved land” under section 107, and Government authorisation will then be needed to abrogate such classification when the road ceases to be used. Section 109, which requires registration of “reserved land”, does not solve the difficulty, since registration is not a precondition for converting land into reserved land. Registration is declaratory of a situation which exists even apart from such registration. Another matter which needs to be settled is the delimitation of reserved land. What is the width of the coastal strip bordering on the sea and forming the “seashore”, or what is the width of the bank of a river, as referred to in section 107? See Laubadère, op. cit supra note 86, at 148.

⁹¹ “Reserved land”, according to the purposes specified in section 107, does not include certain kinds of metrukeh such as pasture land of a village, land used for barns, etc. It also emerges from section 154 that metrukeh land belonging to a village but situated outside the area of the local authority of that village or metrukeh land of a village that is not recognised as a local authority will not be registered in the name of those who benefited from such land in the past.

⁹² This category comprises also reserved land. The third and fourth categories thus overlap, the result being that these two categories have features in common, as mentioned below.

⁹³ In the second category above a part of the public lands, known as “Israel lands” was discussed from the point of view of the lessees of such land. See note 73 above. Here the wider category of public land will be considered from the point of view of the owners of such land.

⁹⁴ The Law provides that the period of limitation shall commence only from the time of registration, the result being that even if the owner of “public land” had actual knowledge of his ownership he will benefit from the fact that the land is not registered in his name. In view of the general rules of limitation in Israeli law it may be doubted whether this is a just result. Indeed, the Bill actually provided that if the owner knew of his right in the land, the period of limitation should commence even where there is no registration—Draft Land Bill, 1964, section 180 (b) (2).

⁹⁵ Section 112. See the other conditions for application of this rule in section 23, Instances of building on another person's land in error have apparently not been unusual in this country. See remarks of the Minister of Justice on the first reading of the Land Bill, (1964) 40 Divrei HaKnesset 2129.

⁹⁶ Minister of Justice, ibid., p. 2480.

⁹⁷ Basic Law: Israel Lands, 1960, section 1.

⁹⁸ Land Law, 1969, section 107.

⁹⁹ Land Law, 1969, section 162 (2); Ottoman Land Code, 1858, section 78; Land (Settlement of Title) Ordinance (New Version), 1969, section 51. So far, case law has not yet clarified whether it is possible that the provision of the Basic Law: Israel Lands, section 1, which says that “the ownership…in Israel lands…shall not be transferred” precludes the transfer of ownership in “Israel lands” even by virtue of limitation. In State of Israel v. Ali Hasin (1961) 15 P.D. 1923, the court acted on the assumption that even after the Basic Law: Israel Lands, ownership of Israel lands can pass by virtue of limitation. However the question has not been fully discussed.

¹⁰⁰ See above, p. 384 et seq.

¹⁰¹ Section 125. See also section 10

¹⁰² See above, p. 406.

¹⁰³ From the point of view of the structure of the Law, it is not clear why the right of pre-emption has been omitted from the first chapter, where the other rights in land are defined. The right of pre-emption is mentioned for the first time in chapter 7, among other rights in the land of another person.

¹⁰⁴ This is generally the meaning given to the phrase “rights in land” or other similar phrases by the cases. See: Haker v. Barash (1954) 8 P.D. 566, at 571; Allon v. Melnik (1956) 10 P.D. 486 at 492; Neeman v. Mayor of Tel-Aviv (1956) 10 P.D. 1942 at 1956, 1972. See also remarks of the Minister of Justice on the first reading of the Land Bill, (1964) 40 Divrei HaKnesset 2130, and of the Chairman of the Constitution and Law Committee on the second and third reading of the Bill, (1969) 55 Divrei HaKnesset 3756.

¹⁰⁵ Feldman v. Discount Bank (1958) 35 P.E. 235; Trustee of the Estate of Lechstein v. Shekem Ltd. (1960) 14 P.D. 620. Cf. Fruit Cultivators' Corporation Ltd. v. Trustee of the Assets of Strauss (1969) (I) 23 P.D. 715. Dikstein, P.: “On Complementing the Local Law and the Private Trust” (1947) 4 Hapraklit 1, 7Google Scholar.

¹⁰⁶ Section 161. Freedom of contract is provided for in Article 64 of the Ottoman Code of Civil Procedure. In view of this, can one use the ingenious argument that the creation of a new right in land, by agreement, is actually “by an enacted Law”, i.e. by article 64 of the said Ottoman Code? This argument can be rejected on formal grounds. The phrase “enacted Law” (Hok) is defined in the Interpretation Ordinance, and by this definition it does not include the Ottoman Code of Civil Procedure (which is included in the wider term Din).

¹⁰⁷ Sections 41–44 of the Succession Law, 1965.

¹⁰⁸ Section 62. The resolutions of apartment owners in general meeting will bind their assignees if the resolutions are registered in the “register of resolutions”: section 71.

¹⁰⁹ Section 5, 92, 93.

¹¹⁰ The nature of an easement as a right in rem will be discussed below.

¹¹¹ American Law of Property, edited by Casner, A. J., 1952, vol. 5, p. 16Google Scholaret seq; Megarry and Wade, op. cit., supra, note 12, p. 716 et seq.; Helmore, B. A.. The Law of Real Property in New South Wales, (2nd ed., 1966), p. 37.Google Scholar

¹¹² Sections 1, 12.

¹¹³ Holland v. Hodgson (1872) L.R. 7 C.P. 328, at 335.

¹¹⁴ A recent example of the unfair results liable to be reached through the application of the sole test of physical attachment may be found in Shaflan v. Kaufer (1969) (II) 23 P.D. 108. The judge who delivered the majority judgment pointed out that he was compelled to reach a certain conclusion which he nevertheless found undesirable on grounds of justice.

¹¹⁵ See also section 157 which creates a situation in which a single registrable unit consists of separate ownership in the building and the land. The source of the mishap is the fact that the section provides for abolition of separate registration as the first stage, even before the unification of ownership of the land and the buildings takes place. See also the Land (Management and Registration) Regulations, 1969, rule 61.

¹¹⁶ (1964) 40 Divrei HaKnesset 2129.

¹¹⁷ Section 21 (b).

¹¹⁸ It is not likely that in actual fact such situations will be regulated by the provision in the Law, and that the owner of the land who is interested in retaining the fixtures will actually pay the person who erected them the amount of his investment or the value of such fixtures. The inducement for the owner of the land to leave the fixtures will generally commence when the amount he is required to pay will be lower than the value of the fixtures (for on paying the value he receives no more than he gives). On the other hand, the inducement for the person erecting the structures to leave them in their place will commence when he is offered a sum which is greater than the value of the materials when removed (for he is entitled to these in any event). The amount eventually paid will thus fluctuate between these two limits, according to the bargaining positions of the parties in each case (taking into account what interest the landowner has in the fixtures remaining, etc). The provision of the Law is of value in determining the starting positions of each side in the process of bargaining, but it cannot be regarded as the final solution to the problem. Cf. Planiol et Ripert, op, cit., supra note 86, vol. 3, p. 267.

¹¹⁹ Section 23. And even in that case only where the acquisition of the land will not cause its owner such damage that cannot be compensated by payment of the value of the land.

¹²⁰ See above, note 82.

¹²¹ See reference to a registratile unit of land ih sections 98 and 157.

¹²² Section 106. Do these transactions in the lease constitute transactions in land, to which the provision invalidating a transaction in a specific part of land refers? The matter is not free from doubt, in view of the definition of transaction in land in section 6. The definition speaks of the grant of ownership of land or the grant of any other right in land. Is a mortgage of a lease of land a “right in land” or a “right in a right in land”?

¹²³ See section 93 and section 97 from which it can clearly be deduced that an easement may relate to a specific part of a registrable unit.

¹²⁴ Section 27. And see Noyes, C. R., The Institution of Property, 1936, London, p. 463Google Scholar: Blackstone, , Commentaries on the Law of England, Book II, pp. 183–4Google Scholar.

¹²⁵ Brauner v. Lavron (1960) 14 P.D. 169; 43 P.E. 271. Cf. Estate of Mashiach v. Mashiach (1966) (I) 20 P.D. 126.

¹²⁶ Mejelle, sections 1182, 1183.

Re an important restriction on the possibility of obtaining an order dividing the use, see the Ottoman Land Code, 1858, section 15; also: Padel, W. and Steeg, L., De la législation foncière ottomane, 1904, Paris, p. 106.Google Scholar

¹²⁷ Section 30. See: P. Arminjon, op. cit., supra, note 59, at 419 et seq; Novissimo Digesto Italiano, op. cit., 3rd. ed. vol. 3, pp. 862, 863.

¹²⁸ The wording of section 31 (a) (1) gives substance to the argument that the reasonable use therein mentioned means reasonable use in view of the nature of the property (an apartment for accommodation, or arable land for cultivation, etc.) and not use which is reasonable in view of the demands of the other co-owners for use of the property. The regulation of use as between the conflicting demands of the co-owners is prescribed later, in the provision whereby a co-owner may not prevent another co-owner from making reasonable use of the land. The result is likely to be that a co-owner cannot ask the court for an order that he should live in the apartment for one year and another co-owner in the following year, since the latter can insist on living continuously in the apartment, this being a reasonable use of the property in view of its nature. On the other hand, Ottoman law permitted the division of use by time: Mejelle, section 1176.

¹²⁹ Mejelle, section 1188; see also section 1190. Cf. Tedeschi, G., “Concerning Consideration”, (1961) 18 Hapraklit 29.Google Scholar

¹³⁰ Section 29. The provision in this section that a co-ownership agreement is effective “also with regard to a person who thereafter becomes a co-owner and every other person”, is a peculiar one. If the words “and every other person” refer to a third party not claiming under one of the co-owners, then this would constitute a daring innovation in the law of contracts, and it may be doubted whether this was actually the legislative intent. If on the other hand it was the legislative intent that guests and lessees of a co-owner are bound by the provisions of the co-ownership agreement, then the question arises why a similar provision does not exist in respect of the rules of a condominium. Why does the Law only provide that the rules are to be effective “with regard to any person who subsequently becomes an apartment owner” (section 62 (c))? What about a lessee of an apartment in a condominium, or the guest of an apartment owner—are they exempt from the rules?

¹³¹ It is interesting that English law, though requiring the grant of exclusive possession as a condition for the existence of a lease, nevertheless recognises the ability of a co-owner of land to let his share of the land. See Megarry, and Wade, , The Law of Real Property (3rd. ed.) at pp. 624, 418.Google ScholarDoe d. Browell v. Abey (1813) 1 M. & S. 428; 105 E.R. 160. Doe d. Whayman v. Chaplin (1810) 3 Taunt 120; 128 E.R. 49. The difficulty may perhaps be solved by saying that a lease by a co-owner confers exclusive possession in the co-owner's right, but not in the land, i.e., that such a lease confers incorporeal possession.

¹³² Pollock, F., Possession in the Common Law, 1888, Oxford, pp. 21, 27.Google Scholar

¹³³ Apart from the specified laws repealed by the Land Law, it also repealed wholesale “all other Ottoman legislation relating to immovable property” (section 158). The general laws of hiring in the Mejelle, which apply to various kinds of property, were apparently not thereby repealed, neither do the provisions of the Mejelle as to hiring appear among the specific repeals.

¹³⁴ Section 429. See also section 451 which states: “In a contract of hire, the advantage to be derived from the subject matter of the contract must be specified in such a manner as to avoid any possibility of dispute”. And see section 1185. In the draft Land Bill, 1964, there was a provision denying a co-owner the possibility of letting his share to a stranger (section 72 (a)).

¹³⁵ American Law of Property, edited by Casner, A. J., 1952, vol. 2, p. 51Google Scholar; Planiol, et Ripert, , Traité pratique… vol. 3, p. 873.Google Scholar

¹³⁶ Section 99.

¹³⁷ Section 91. See also definition of mortgage in section 4.

¹³⁸ Weisman, J., “Principles of the Pledges Law, 1967”, (1969) 4 Is.L.R. 417, 438.Google Scholar

¹³⁹ Draft Land Bill, 1964, sections 69 (b), 72 (b).

¹⁴⁰ See, e.g., Megarry and Wade, op. cit., at p. 272; American Law of Property, op. cit., note 111, vol. 6, p. 409 et seq.; Carbonnier, J., Droit Civil, 1964, Paris, p. 85Google Scholaret seq.

¹⁴¹ The requisite amendment is a slight one. Instead of its present wording, section 34 (b) could be worded as follows: “Any stipulation in a co-ownership agreement which denies or restricts any right provided for in sub-section (a) shall be effective for a period not exceeding five years”. This amendment would be sufficient to refute the assumption underlying the existing wording, namely, that a stipulation denying the right to alienate property generally has full validity.

¹⁴² Draft Land Bill, 1964, sections 72 (b), 80. Both sections propose the same period of five years.

¹⁴³ Section 23. See above, p. 412 et seq.

¹⁴⁴ Section 46. Where partition is applied to the land owned in common, the co-owner who has built is liable to receive only a part of the land, i.e., that part on which the house stands (section 47), whereas a stranger building on the same land may receive the whole of the land. In the latter case the trespasser gains undeserved advantage (see above, in discussion on ownership in land), whereas in the former case, discussed above, there is unjustified discrimination against the co-owner who has built on the common property.

¹⁴⁵ By exercising their prior right to demand severance of the co-ownership. See section 46.

¹⁴⁶ See Leigh v. Dickson (1884) 15 Q.B.D. 60, 69.

¹⁴⁷ Buckland, W. W. and McNair, A. D., Roman Law and Common Law, (2nd ed., 1952) pp. 106, 124CrossRefGoogle Scholar; Arminjon, op. cit., supra, note 59, vol. 1 at p. 418; Novissimo Digesto Italiano, op. cit., 3rd. ed. vol. 3, at pp. 873–4, and in many other legal systems.

¹⁴⁸ See remarks on this section, above, pp. 394–5, and 418.

¹⁴⁹ Mazeaud, , Leçons de Droit Civil, Deuxième, édition, 1962, Paris, vol. 2, p. 1078Google Scholaret seq.

¹⁵⁰ This subject will be discussed below, in chapter 5.

¹⁵¹ Succession Law, 1965, sections 107–120; Land Law, 1969, section 163.

¹⁵² Succession Law, 1965, section 113.

¹⁵³ (1964) 40 Divrei HaKnesset 2132.

It appears that on the debate on the Land Bill, the mistaken assumption was made that under the Ottoman law, it was necessary to go through the intermediate stage of offering the land to the co-owners. See Melamed v. Howard (1969) (II) 23 P.D. 210. See a note on this case on p. 472 below. It is not intended to consider here all the differences in laws of severance of co-ownership between the Succession Law and the Land Law. See in particular the Succession Law, 1965, sections 114, 115.

¹⁵⁴ See section 64–75 of the Ordinance, and section 163 of the Land Law, 1969. The process of settlement has been considered above, at p. 384 et seq.

¹⁵⁵ See above p. 392 et seq.

¹⁵⁶ Civil Wrongs Ordinance (New Version), 1968, sections 29, 44.

¹⁵⁷ It is doubtful whether section 20 of the Land Law is of any assistance in this respect.

¹⁵⁸ See: Tedeschi, , Englard, , Barak, and Cheshin, , Law of Torts, Jerusalem, 1969, p. 73Google Scholaret seq. (in Hebrew). Dr. Cheshin, who analyses this question leaves it unresolved, maintaining that no decisive consideration can be found; see p. 76.

¹⁵⁹ Sections 15, 16.

¹⁶⁰ See American Law of Property, op. cit., vol. 1, p. 601; Cheshire, G. C., The Modern Law of Real Property. (9th ed., 1962) London, p. 796Google Scholar; Clerk, and Lindsell, , Torts, (13th ed., 1969) London, p. 772.Google Scholar

¹⁶¹ Prescription Law, 1958, section 8.

¹⁶² Sections 17, 15. The possibility of acquiring an easement by prolonged use even if the land is subject to a long lease is consistent with this approach. See section 94. That possession by a lessee is possession “under the owner” may be derived from the travaux préparatoires to the Law.

¹⁶³ See American Law of Property, vol. 1, pp. 578, 588–89; Prosser, W. L., The Law of Torts, (3rd ed., 1964) St. Paul Minn., pp. 613–14Google Scholar; Fleming, J. G., The Law of Torts, (3rd ed., 1965) Australia, p. 379Google Scholar; Salmond, , Law of Torts, (15th ed., 1969) London, p. 153.Google Scholar

¹⁶⁴ Section 15, 18. The extension of self-help in favour of a person who is not in possession is not accepted even in those legal systems which have the least objection to self-help as such. See: Prosser, loc. cit., at p. 626; Fleming, loc. cit., at p. 87.

¹⁶⁵ See Levontin, A. “On the Unlawful Possessor in our Private Law System”, (1952/1953) 9 Hapraklit 353, 361.Google Scholar

¹⁶⁶ Section 19. The possibility must be considered that section 19 will not aid trespasser A in his action against trespasser B, if his action is brought after a considerable delay. The justification for an order preserving the status quo ante under section 19 is in situations in which a speedy and temporary solution is needed, so as to allow time for a full investigation which may continue for a considerable time. If trespasser A delays for some time in bringing his action against trespasser B he shows thereby that the situation in which he finds himself does not call for a speedy interim solution pending an investigation into the rights of the parties (this was the position in the past also, under section 24 of the Ottoman Magistrates Law, 1913. See Mohamed v. Arber, (1942) A.L.R. 972).

In this latter case trespasser A will apparently have to claim the land from trespasser B in the ordinary way, i.e. by proving that he is entitled to possession of the land, in accordance with section 16. In such an action, it is doubtful whether the mere fact that trespasser A's possession was prior to that of trespasser B will suffice. According to section 16 it would appear that what is required is a right to possession which is not merely relative as against the specific defendant, and trespasser A does not have such a right (as to this, see the various features required in respect of the plaintiffs, under sections 16 to 19).

A support for the assumption that section 19 does not avail a plaintiff who has delayed bringing his action may perhaps be found in the wording of the section, which says: “A person who takes any immovable property from the possessor thereof… shall return it to the possessor…” A plaintiff who has just been dispossessed may still be considered as a “possessor” to whom the land must be returned, but this does not apply to a plaintiff who was dispossessed some considerable time previously. The return of the land to such a plaintiff cannot be considered as returning the land to the possessor. Hence it may be concluded that the protection given by the Law to a possessor as such, without considering whether or not his possession is lawful, is limited to cases where the possessor brings an action for recovery of possession within a short time.

¹⁶⁷ Section 18 (a), (b). And see the remarks of the chairman of the Constitution and Law Committee, on the second and third readings of the Land Bill, (1969) 55 Divrei HaKneset 3759.

¹⁶⁸ See section 20. As far as compensation for dispossession is concerned, the position outside the scope of the Land Law is not particularly clear. See Teichner v. Ekhaus (1967) (I) 21 P.D. 7.

¹⁶⁹ See Tedeschi, , Englard, , Barak, and Cheshin, , Law of Torts, sections 155, 317 (in Hebrew).Google Scholar Englard points out the difficulties involved in finding a basis in the law for the decisions of the courts.

¹⁷⁰ Criticism of the previous position can be found in: Bein, D.: “The Attitude of Israeli Law to one who takes the Law into his own Hands”, (1968) 24 Hapraklit 322, 327, 328, 482.Google Scholar Also Tedeschi, Englard, Barak and Cheshin, supra, note 158, section 315, per Englard.

¹⁷¹ See Civil Wrongs Ordinance (New Version), 1968, section 24 (2); Criminal Code Ordinance, 1936, section 96; Land Law, 1969, section 19. The provision in section 19 also raises a difficulty as far as the division of jurisdiction among the courts is concerned. A magistrates' court which is authorised to deal with matters concerning possession cannot consider disputes as to ownership (Courts Law 1967, section 28 (3); see also section 35). Section 19 is liable to confuse this division of jurisdiction.

¹⁷² Neeman v. Mayor of Tel-Aviv (1956) 10 P.D. 1942; Allon v. Melnik (1956) 10 P.D. 486; Haker v. Barash (1954) 8 P.D. 566; Weisman v. Strikowski (1949) 2 P.E. 166; Levontin, A., “On the Nature of Lease of Land” (1954/1955) 11 Hapraklit 254Google Scholar; Ben-Dror, M. “The Difference between Lease and Licence”, (1953/1954) 10 Hapraklit 323Google Scholar; Weisman, J. “On the Distinction between Lease and Licence” (1962/1963) 19 Hapraklit 299Google Scholar, (1963/64) 20 Hapraklit 40.

¹⁷³ See the title of Chapter 7 of the Law; also p. 409 et seq. above.

¹⁷⁴ (1964) 40 Divrei HaKnesset 2130.

¹⁷⁵ Neeman v. Mayor of Tel-Aviv, supra, note 172. See also supra, p. 387.

¹⁷⁶ Haker v. Barash, supra, note 172; Levi v. Levi (1965) (1) 19 P.D. 172, 174. This rule was criticised by Prof. A. Levontin, supra, note 172. Cf. Chaikin v. Mamar (1965) (IV) 19 P.D. 183, 190. Exceptions to the rule may be found in the Tenant Protection (Miscellaneous Provisions) Law, 1968, section 8F (c).

¹⁷⁷ Section 82. Cf. Key Money Law, 1958, section 12.

¹⁷⁸ See above, p. 402.

¹⁷⁹ Section 81. The possibility of limiting by lease agreement the right of the lessor to charge the lease by mortgage also existed previously. See Land Law (Amendment) Ordinance, 1937, section 9.

¹⁸⁰ See J. Weisman, supra, note 172.

¹⁸¹ Tenant Protection Law, 1955, section 11; Tenant Protection (Miscellaneous Provisions) Law, 1968, section 8A to 8F.

¹⁸² In view of the definition of “lease” in the Law, it may be asked whether lease also includes the case where the consideration is not in rent (or not solely in rent). What is the nature of a transaction in which the consideration given by the “lessee” is in services, or in the right to use any property of the “lessee” (exchange of “leased” premises), etc.?

¹⁸³ See above, p. 427.

¹⁸⁴ In the bill, a provision to this effect was included, but was omitted from the final text of the Law. See section 162 of the draft law of 1964.

¹⁸⁵ The question as to which leases require registration will be considered below, in the chapter on registration. The Land Law allows registration of a lease even if it does not require registration: section 79 (c).

¹⁸⁶ This is the conclusion to be drawn from section 80, which is supported by the general rule of the laws of hiring whereby an earlier lease has priority over a later one. See section 84 of the Land Law; the Mejelle, sections 441, 589. According to the Mejelle, the priority of the first over the second hiring is not, apparently, dependent on the first lessee obtaining possession of the hired object. See sections 523, 477, 584, 585, 586.

¹⁸⁷ Mejelle, section 590. See also Haker v. Barash, (1954) 8 P.D. at p. 572.

A similar position is reached under the Pledges Law, 1967. See Weisman, J.: “Principles of the Pledges Law”, (1969) 4 Is.L.R., 417, 433.Google Scholar

¹⁸⁸ This is the position, e.g., in a number of states of the United States: see Lesar, H. H., Landlord and Tenant, 1957, Boston, Little, Brown & Co., p. 211Google Scholar; as well as in French law: see Mazeaud, , Leçons de droit civil, vol. 2 at p. 864Google Scholar; Planiol, et Ripert, , Traité pratique, vol. 10, pp. 574–75.Google Scholar

¹⁸⁹ For example, in order to evade the restrictions which existed under the succession laws with regard to the validity of a will relating to ownership of miri land; or so as to save the payment of various taxes involved in effecting transactions in ownership of land, et alia. A strange result of the distinction between a lease for a term of 999 years and ownership can also be seen in relation to the jurisdiction of the courts. See Aharonov v. Ben Dror (1968) (I) 22 P.D. 88.

¹⁹⁰ Section 106 does not preclude this possibility. Where the right of pre-emption as between co-owners is concerned, the question will of course arise as to whether a co-owner can let his share. See above, p. 416 et seq. This question does not, however, arise in respect of a right of pre-emption attached to land in sole ownership. See section 99 of the Law.

¹⁹¹ Section 85. As to the position under the Pledges Law, see Weisman, , (1969) 4 Is.L.R. 417 at pp. 431–32.Google Scholar

¹⁹² Section 86; cf. Pledges Law, 1967, section 6.

¹⁹³ See section 87 of the Land Law; cf. sections 1 and 5 of the Transfer of Obligations Law.

¹⁹⁴ Cf., e.g., section 87 (b) of the Land Law with sections 2 (b) and 3 of the Transfer of Obligations Law.

¹⁹⁵ Land Law, section 163; Transfer of Obligations Law, section 10.

¹⁹⁶ This question is distinct from the question which of the two Laws, the Pledges Law or the Land Law, should be preferred. These two Laws also provide that their provisions should apply where there are no specific provisions in any other enactment, but at the same time the Land Law specifically subjects the Pledges Law to the provisions of the Land Law as to mortgages (section 91). This makes the question as to which of the two Laws—the Pledges Law or the Land Law—is to be preferred an easier one to answer. On the other hand, such a provision with regard to the Transfer of Obligations Law is lacking. See discussion on the question of the relation between the Pledges Law and the Land Law in Doukhan-Landau, Leah, “The Land Law, 1969,” (1970) 26 Hapraklit 101, 122.Google Scholar

¹⁹⁷ These principles have been considered elsewhere. See Weisman, ibid.

¹⁹⁸ Pledges Law, 1967, section 2 (b).

¹⁹⁹ Section 7. See also sections 4, 6.

²⁰⁰ Property and Building Co. Ltd. v. Assessment Officer for Large Concerns (1967) (II) 21 P.D. 229.

²⁰¹ Section 13 (b) of the Pledges Law, 1967.

²⁰² Section 88. The Law has thus departed both from the approach of the Pledges Law and from the earlier law on mortgages under the Ottoman Mortgages Law, 1913, section 8.

²⁰³ The Ordinance remains in force. And see section 163 of the Land Law. One cannot understand, for example, why it is only in the Credit Banks Ordinance that there appears a provision enabling the borrower to pay off even a part of the loan before it is due, provided such part is not less than a quarter of the amount of the loan (section 5 (2)), whereas no such provision appears in the Land Law (and cf. section 89 of the Land Law, dealing with the special case where the creditor refuses to take payment, when the Law allows part payment also by deposit. Rule 63 of the Land (Management and Registration) Rules, 1969, made under section 89 of the Law would appear to be ultra vires that section in regulating the discharge of a mortgage by means of deposit even in cases where the creditor did not refuse to take payment of the debt. See also section 149 of the Draft Land Bill, 1964). Furthermore, why is it possible to save paying interest under the Credit Banks Ordinance by giving notice in advance of the intention of the debtor to pay off his debt before maturity, while no such possibility is provided under the Land Law? (See section 5 (2) of the Credit Banks Ordinance and section 13 (b) of the Pledges Law). On the question of what is a “credit bank”, see Bet Ziva Ltd. v. Israel Discount Bank Ltd. (1966) (IV) 18 P.D. 561.

²⁰⁴ Tenant Protection Law, 1955, section 36. With the aid of section 7 of the Land Transfer Ordinance, 1920, it was only possible to prevent a lease requiring registration, but not one for a short term; section 30 of the Tenant Protection Law, 1955 was capable of preventing the debtor himself turning into a protected tenant of the property mortgaged by him, but it could not prevent the debtor letting the property to another person under a protected tenancy.

²⁰⁵ Taxes (Collection) Ordinance, 1929, section 2, 12.

²⁰⁶ In addition to orders by the Minister of Finance, a number of enactments also provide that payments to be made under them are to be levied under the Taxes (Collection) Ordinance. See e.g. Property Tax and Compensation Fund Law, 1961, section 32, and Land Betterment Tax Law, 1963, section 92.

²⁰⁷ Director of Property Tax v. Receiver of U.S. Near East Laboratories, (1967) (I) 21 P.D. 29.

²⁰⁸ See sections 5, 92, 93. In the past it was apparently assumed that the various types of charges formed a numerus clausus. See Suleiman v. Latin Patriach of Jerusalem, (1942) 9 P.L.R. 641.

²⁰⁹ Dresner v. Gordon (1951) 4 P.M. 46; Sczupak v. Rapaport (1956) 12 P.M. 399. Cf. Machlin v. Gorelik (1946) S.D.C., 281.

²¹⁰ Section 93 (a) (1). And cf. Gale on Easements (13th ed., 1959) London, p. 7; American Law of Property, edited by Casner, A. J., 1952, vol. 2, p. 235, note 1.Google Scholar

²¹¹ Planiol et Ripert, vol. 3, pp. 919, 970.

²¹² Section 81 (b). See above p. 429.

²¹³ Section 96. See also Cretney, Stephen, “Land Law and Conveyancing Reforms”, (1969) 32 M.L.R. 477, 490.CrossRefGoogle Scholar

²¹⁴ Megarry & Wade, op. cit., note 12, pp. 802–03.

²¹⁵ The Law refers to the content of the right in these words: “…a charge on immovable property conferring a right of enjoyment, not including the right of possession thereof” (section 5); “that the owner of the dominant property…shall be entitled to some specific use of the servient immovable property” (section 93 (a) (1)). These expressions do not avoid the necessity of tackling the question whether they also include the right to acquire ownership of things to be taken from the servient land.

²¹⁶ See remarks of the Minister of Justice on first reading of the Bill, (1964) 40 Divrei HaKnesset 2130, and see above, p. 409 et seq.

²¹⁷ Section 162 of the Bill. Cf., re mortgages, section 85 of the Law.

²¹⁸ The expression “a charge on immovable property” in the definition of easement, indicates a right in rem rather than a mere right in personara (section 5). See also section 96 which states that an easement is generally limited in time. It can be concluded from section 95 that the right of the owner of an easement is transferable.

₂₁₉ The Law deals with an easement “for the benefit of immovable property” (section 92), from which one understands an easement for the benefit of the corporeal right (i.e., the ownership) of the land. As often happens, ownership is identified and replaced by the object of the right—the land itself. Indeed, support for the assumption that the reference is to an easement for the benefit of the ownership of land may be found in the consecutive provisions of the Law, which refer specifically to “the owner of the dominant property” (section 93 (a) (1)). It is open to question whether one can base an easement for the benefit of a lessee of land on the possibility of creating an easement “for the benefit of a…class of persons” (section 92), where the common feature of this class is the right to a lease over certain property.

²²⁰ Al Muhshi v. Mutar (1962) 16 P.D. 2611.

²²¹ Ottoman Land Code, 1858, section 41 (re miri lands).

²²² Where property which cannot be divided in specie is concerned. If property is capable of being divided in specie, this will provide an additional means of evading the right of pre-emption.

²²³ See Melamed v. Haward (1969) (II) 23 P.D. 210.

²²⁴ Section 34 (b). See above, p. 414 et seq.

²²⁵ Where the Law refers to the restriction of the right of a co-owner to transfer his right, this does not mean the denial of his right, which the Law treats separately. See section 34 (b).

²²⁶ See above, p. 409 et seq. In the Bill, pre-emption was not included in the chapter on “rights in the immovable property of another person”, and the Minisetr of Justice did not therefore include it among the rights which he referred to as rights in rem. (1964) 40 Diurei HaKnesset 2130.

²²⁷ Section 104. It is not altogether clear whether the section also refers to assignees who are heirs. See marginal note to the section, which refers to “gifts”.

²²⁸ Cf. re Button's Lease v. Button [1963] 3 All E.R. 708. Also Levontin, supra, note 172.

²²⁹ Sections 99, 100, 101, 105.

²³⁰ Section 100 (b).

²³¹ Section 101.

²³² See above, p. 432.

²³³ The original Law was that of 1952 and the Law in force immediately prior to the Land Law was the Co-operative Houses Law (Consolidated Version), 1961. For a survey of this subject before the new Land Law, see Elman, P., “Co-operative Housing in Israel”, (1969) 4 Is.L.R. 333.Google Scholar

²³⁴ Section 13 of the Law. For an analysis of the nature of the right of an apartment owner in a condominium, in respect of his apartment and his share of the common property, see J. Weisman: “Copropriété par Appartements et Copropriété Horizontale”, in Israeli Reports to the Eight International Congress of Comparative Law, Institute for Legislative Research and Comparative Law, The Hebrew University of Jerusalem, (in the press)

²³⁵ Section 55 (b). See exception to this rule, in the same section.

²³⁶ In France, for example, the law provides explicitly that all the owners of a condominium constitute a corporate body: see Le statut de la copropriété, Loi no. 65–577 du 10 Juillet 1969, article 14. This applies also to Dutch law: see Leyser, J. “The Ownership of Flats, A Comparative Study”, (1958) 7 I. & Comp. L.Q. 31, 46CrossRefGoogle Scholar, and also in New South Wales: see Rath, , Grimes & Moore, Strata Titles, 1966, Australia, p. 3.Google Scholar See also Ferrer, and Stecher, , Law of Condominium, 1967, U.S.A. vol. 1, p. 87.Google Scholar Also in Ontario: see Risk, R.C.B., “Condominiums and Canada”, (1968) U. of Toronto L.J. 1, 34.Google ScholarCf. position in Germany and Italy, where the law contains no such provision: see Leyser, op. cit., at p. 45; Visco, A., Le case in condominio, settima edizione, 1967, vol. 1, pp. 85–86.Google Scholar

²³⁷ Alt v. Local Building and Town Planning Committee, Tel-Aviv-Yafo (1962) 16 P.D. 1330. Elman. (1969) 4 Is.L.R. at p. 345.

²³⁸ Cf. Givord, et Giverdon, , La copropriété, 1968, Paris, pp. 227–8.Google Scholar Also Valiente, L.M.N., La Ley de Propiedad Horizontal, 1967, Buenos Aires, p. 63Google Scholar, who also expresses inter alia the view that a condominium, similar to that of Israeli law, may have limited legal personality.

²³⁹ See Weisman, J., The Condominium Law: A Study of its Operation, 1970Google Scholar, Institute for Legislative Research & Comparative Law, The Hebrew University of Jerusalem (English translation in the press).

²⁴⁰ Ibid.

²⁴¹ Atoun, D., “The Law of Condominium in the light of the Draft Land Bill” (1969) 25 Hapraklit 580, 581.Google Scholar

²⁴² Cf. Weisman, Copropriété par Appartments et Copropriété Horizontale, op. cit.

²⁴³ See Givord et Giverdon, op. cit., at pp. 72–78, 287–293.

²⁴⁴ Weisman, The Condominium Law: A Study of its Operation, op. cit.

²⁴⁵ Weisman, op. cit., supra note 239.

²⁴⁶ This principle is now embodied in sections 58, 57, 60 (a) of the Land Law.

²⁴⁷ Section 55 (c) of the Land Law. The Land Law has introduced an innovation in this matter by providing a list of parts of the common property which cannot be attached to any one apartment.

²⁴⁸ Section 57 (b). The area of the outer walls presumably refers to the floor space occupied by the outer walls. This provision is subject to the possibility of departing from it, by consent of all apartment owners, by means of a suitable provision in the rules of the condominium. See also sections 61, 62.

²⁴⁹ Or according to what is provided in the rules by consent of all apartment owners: sections 57 (c), 61, 62. This provision, as well as that concerning outer walls, mentioned in the previous note, represent novel provisions first introduced by the Land Law.

²⁵⁰ With the consent of all the apartment owners, it is of course possible to alter their rate of contribution to maintenance expenses (section 58), but the situation requiring a solution is that where such general consent is lacking.

²⁵¹ Co-operative Houses Law (Consolidated Version), 1961, section 35.

²⁵² Weisman, op. cit.

²⁵³ Rath, Grimes & Moore, op. cit., p. 31; Valiente, op. cit., at pp. 41, 54; Givord et Giverdon, op. cit., at pp. 13, 201.

²⁵⁴ Rohan, and Reskin, , Condominium Law and Practice, 1967, New York, 10A–2Google Scholar; Risk, op. cit., at p. 38; Givord et Giverdon, op. cit., at pp. 246–47.

²⁵⁵ In the U.S.A., e.g., there is a specific provision to this effect in the Federal Housing Administration Model Statute for the Creation of Apartment Ownership, s. 28. Rohan and Reskin, op. cit., at App. B. 35; Risk op. cit., at p. 41; Magnenat, H. E., La propriété par étage, Lausanne, 1965, p. 134Google Scholar; Givord et Giverdon, op. cit., at p. 222.

²⁵⁶ Rohan and Reskin, op. cit., at pp. 7–14, App. 11 et seq.

Cf. Racciatti, H., Propiedad Por Pisos o Por Departamentos, Segunda edición, Buenos Aires, 1958, pp. 62–63.Google Scholar

²⁵⁷ See above, as to possibility of evading the requirement of the Law; as to the consent of owners of at least half the house, on an application to register a house as a condominium (p. 421); as to lack of provisions for protection of a minority against oppression by a majority (p. 390–1); as to lack of provisions on the question of how the common property may be used before the general meeting has made any decision on the matter (ibid.) as to emergency powers of every apartment owner to prevent damage to the property (ibid.) see also note 47 supra.

²⁵⁸ Dowson, and Shepperd, , Land Registration, 1952, London, pp. 128–130.Google ScholarCarbonnier, J., Droit civil, quatrième édition, 1964, Paris, vol. 2, p. 215Google Scholar. Traces of a negative attitude towards limitation as applied to land can be discerned in the judgments of the Supreme Court, particularly those of Justice H. Cohn. See e.g. Development Authority v. Yarkoni (1965) (II) 19 P.D. 595.

²⁵⁹ Prescription Law, 1958, section 2; Ottoman Land Code, 1858, section 20; Mejelle, section 1661 (see also section 1674, repealed by the Prescription Law, 1958, section 26).

²⁶⁰ Ottoman Land Code, 1858, section 78; Land (Settlement of Title) Ordinance, 1928, sections 51, 54.

²⁶¹ Section 159 (b). On the meaning of “settled land”, see above, p. 384 et seq.

²⁶² See above p. 387.

²⁶³ Land Law, 1969, section 162 (2); Prescription Law, 1958, section 9; Yolzari v. Navon (1960) 14 P.D. 2199.

²⁶⁴ Cf. American Law of Property, edited by Casner, A. J., 1952, vol. 2, p. 267Google Scholar.

²⁶⁵ Report on Acquisition of Easements and Profits by Prescription. Cmnd. 3100 (1967).

²⁶⁶ The majority relied inter alia on the fact that a third party is not likely to be affected by recognition of the rights of the possessor, since possession is obvious to a person visiting the land, which is not the case with regard to mere use of the land.

See ibid., p. 12; supra, p. 406. Cf. French Civil Code, Article 690.

²⁶⁷ Ibid., pp. 12–14.

²⁶⁸ See above pp. 403 and 406.

²⁶⁹ (1964) 40 Divrei HaKnesset 2128. Similar remarks were made by the chairman of the Constitution and Law Committee, on the second and third readings of the Bill, (1969) 55 Divrei HaKnesset 3756.

²⁷⁰ Land Transfer Ordinance, 1920, sections 2, 4, 11;. Land (Settlement of Title) Ordinance, 1928, sections 2, 44. A transaction in land included sale, mortgage, gift, lease for a period exceeding 3 years, dedication under religious law, etc.

²⁷¹ This was the position as regards unsettled as well as settled land. See Land Transfer Ordinance, 1920, section 8; Valero v. Barashi (1954) 8 P.D. 1264, 1271, 1272; Dolinsky v. Ben Moshe (1963) 17 P.D. 2455; Ben David v. Ben David (1969) 64 P.M. 318, 323. An exception was the position of a bona fide purchaser for value from a person registered as first owner following settlement. See: Land (Settlement of Title), Ordinance, 1928, section 66; also Dolinsky v. Ben Moshe, ibid.; Ben David v. Ben David, ibid. See also the Ottoman Law of Disposition, 1913, section 17, dealing with the special status of the purchaser of land during the process of execution.

²⁷² See Koch v. Landau (1963) 17 P.D. 1953. A third party who had acquired rights in the property not bona fide after the unregistered transaction had been carried out could also plead that the previous transaction was void: Petahya, Co-operative Settlement of the Oved Haleumi Settlement Cooperative Ltd. v. Alli (1968) (I) 22 P.D. 373.

²⁷³ Maspero v. Tel-Aviv Development Co. (1956) 10 P.D. 89; Yunas v. Yunas (1963) 17 P.D. 1912.

²⁷⁴ This does not include a lease for a term not exceeding five years. Section 79 (a).

²⁷⁵ Meaning the system of registration relating to parcels of land, which does not ensure that absolute reliance can be placed on the registered title. Dowson and Sheppard, op. cit., at p. 120. And see Liebman v. Lifshitz (1952) 6 P.D. 57, 91, 92.

²⁷⁶ The meaning of this expression was considered above, p. 384.

²⁷⁷ And this is not confined, as it was previously, to reliance on the first registration at the time of settlement. See note 271; see also sections 10, 125(a). It is not clear why these two sections are separated from each other. Section 10 deals with the same question as section 125 (a) and they should have been placed together particularly because section 10 limits the application of section 125 (a). Section 125 (a) purports to say much more than it does in fact. Anyone acquiring settled land without consideration from a person who was wrongfully registered as the owner thereof, cannot, apparently, claim that he has a good right, in view of section 125 (a), whereby an entry in the register constitutes conclusive evidence of its content. The same applies to a person who mala fide purchased settled land from a person wrongfully registered as the owner thereof. Section 10 makes it clear that conclusive reliance on the entry in the register is only available to a bona fide purchaser for value. The Land Law does not provide for the establishment of an Assurance Fund to indemnify losses liable to be incurred by landowners as a result of the protection accorded to the bona fide purchaser for value. The experience with such funds in other countries indeed indicates that they have not been extensively used. Dowson and Sheppard, op. cit., at p. 78.

²⁷⁸ Section 125 (b). To a certain extent the value of registration of unsettled land has even been diminished. Until the Land Law the entry on the register of unsettled land was regarded as prima facie evidence of special weight, and a high degree of proof was required to rebut it (Volero v. Barashi, (1954) 8 P.D. at p. 1271). The Law provides that the entry is only prima facie evidence, without mentioning its special weight.

²⁷⁹ See above, p. 414.

²⁸⁰ Section 124. The position is different in Germany, England, Ontario and elsewhere. See Dowson and Sheppard, op. cit., at p. 127.

²⁸¹ Section 195 of the draft Land Bill, 1964.

²⁸² See, e.g., section 87 (b).

²⁸³ Al Ouda v. Custodian of Absentee Property (1965) (IV) 19 P.D. 427.

²⁸⁴ And cf. Execution Law, 1967, section 34 (b).

²⁸⁵ Succession Law, 1965, section 1; Land Law, 1969, sections 6, 7.

²⁸⁶ Tenant Protection (Miscellaneous Provisions) Law, 1968, section 7.

²⁸⁷ Land Law, 1969, sections 79, 163.

²⁸⁸ By means of acquisition under section 78 of the Ottoman Land Code, 1858. See Land Law, 1969, section 162 (2); also Naeff v. Government of Palestine (1946) 13 P.L.R. 37, and cf. Al Katib v. State of Israel, (1962) 16 P.D. 837; Mani'i v. State of Israel (1960) 46 P.M. 249.

²⁸⁹ Section 94 (a) of the Land Law.

²⁹⁰ Land Law, 1969, section 166; Levi v. Klein (1949) 2 P.D. 107, 112.

²⁹¹ Section 101 of the Land Law.

²⁹² Section 100 of the Land Law. Without registration, the right is valid for two years.

²⁹³ Dowson and Sheppard, op. cit., at p. 123. See also p. 436.

²⁹⁴ Civil Wrongs Ordinance (New Version), 1968, section 48.

²⁹⁵ Section 165 of the Land Law.

²⁹⁶ Banking circles report that 80% of finance secured by charges on land is based on land of which the owners are not registered in the land register. See also Report of the State Comptroller, no. 20, 1969, p. 352.