1 The term ius in re was invented in the middle ages in order to explain the institutions of feudal law. For that purpose the Glossators, drawing from the sources of Roman law, discovered in them some elements of differentiation between an action in re and an action in personam; and they transposed this distinction from the field of procedure to that of substantive law (Salmond, , Jurisprudence, 12th ed. § 43, n. (z))Google Scholar. Today, along the same line, it has become quite common to divide the processes of adjudication and of execution into two classes and some judgments are even said to be “quasi in rem”; but the American scholar Hohfeld condemns this mode as a case of “linguistic contamination” and refuses to recognize the existence of any link between the four sets of distinction (Hohfeld, , Fundamental Legal Conceptions (New Haven, Yale Univ. Press, 1923) 69–71Google Scholar; cf. Stone, J., The Province of Law (2nd printing, Cambridge, Mass., Harvard Univ. Press) § 12, p. 128Google Scholar; Stone, J., Legal System and Lawyers' Reasoning (Stanford, Stanford Univ. Press, 1964) § 13 p. 153)Google Scholar. On the other hand, there is great similarity between the classification of rights here discussed and the summa divisto rerum, the division of things such as that adopted in English law (chose “in possession” as against chose “in action”) or in Jewish law (nekhess muhzak as distinguished from nekhess ra'uy). See Mituva v. Kezem (1952) 6 P.D. 6, 7–10 (per Silberg J.) and 15 (per Cheshin J.).

2 The problem was raised in our Supreme Court on several occasions and extensively discussed. See mainly Hacker v. Barash (hereafter the Arizona case) (1954) 8 P.D. 566, 574, where the late Silberg J., observed that the distinction “seems, at first sight, quite clear in theory, but regrettably the facts of legal life do not always put up with the purity of legal thinking”; to which Agranat, P., added (in Ne'eman v. Mayor of Tel Aviv (1956) 10 P.D. 1942, 1964)Google Scholar that “the controversy … is most acute and deep–rooted”.

3 Legal scholars have often given vent to their disappointment at the failure to solve the basic problem of definition and classification. As early as 1840 Ortolan, , Explication Historique des Institutes (Paris, 8th ed., 1870) I, § 188, p. 637Google Scholar, complained that there were no two convergent opinions on the subject. In 1896, another French scholar apologized for re-opening a debate on a question on which it seemed impossible to innovate (Olier, , in Revue Critique (1896) 466)Google Scholar. And in 1929 the Dane, , Vinding Kruse, , The Right of Property (transl. Fevershiel, , London, Oxford Univ. Press, 1939)Google Scholar insisted that “there is no result to arrive at, for all this discussion is quite futile, an unnecessary waste of energy that might be applied to better purposes” (p. 125). In his view,” [the] doctrine of the distinction…forms one of the most extraordinary chapters in the history of human error” (ibid., 124).

4 “An absolute, as opposed to a relative, right, available to the plaintiff against the whole world merely because he is the owner”, in the words of Sussmann, J. (Berent v. Berent (1958) 12 P.D. 565, 580).Google Scholar

5 On this point see Amsterdam v. Minister of Finance (1952) 6 P.D. 945, 986: “Even an equitable right presents some features of a right in rem”; Ne'eman v. Mayor of Tel Aviv (1956) 10 P.D. 1942, 1961 quoting passages from Harlan Stone, “The Rights of the Cestai que trust” in (1917) 17 Colum L.R. 467. Cf. also Official Receiver v. Meir (1958) 12 P.D. 1696, 1704; Salmond, op. cit. § 49 and the authorities cited; Weisman, J., “The Land Law, 1969: A Critical Analysis” (hereafter J. Weisman, “The Land Law”) (1970) 5 Is.L.R. 379, 386, n. 32.CrossRefGoogle Scholar

6 Arizona case, at 581 § 9.

7 Allon v. Melnik (1956) 10 P.D. 486, majority opinion of Sussmann and Witkon JJ., as against the dissenting opinion of Olshan P., where the lease was held to be in the nature of a right in rem.

8 J. Weisman, “The Land Law” 58.

9 Our theory as first published in 1960 against the background of French positive law (Ginossar, S., Droit Réel, Propriété et Créance (Paris, 1960))Google Scholar. The late Prof.Dabin, J., of Louvain, , summarized and criticized it in (1962) Rev. Trim. Dr. Civ. 20–44 andGoogle Scholar, for a refutation of his objections, see our article ibid., 573–589.

10 In his appraisal published in (1968) 3 Is.L.R. 153 Professor Levontin expressed the hope that the contents of our book would soon appear in an English version; but he did express some reservations as to its merits, without going into further details.

11 Arizona case, at 569. It is important to note at the outset that the rival doctrine does not object to that definition and accepts it in its entirety. Moreover, that definition corresponds to that of obligatio in Roman law as a iuris vinculum, quo necessitate adstringimur, alicuius solvendae rei…(Inst. 3, 13): a legal bond through which we are constrained to render some thing or perform some act…

12 Arizona case, loc. cit.

13 Sale Law, 1968, sec. 7: “The seller shall deliver the thing sold to the buyer and shall transfer to him the ownership thereof (22 L.S.I. 107). Land Law, 1969, sec. 6: “A transaction in immovable property is the grant of ownership thereof…”; and sec. 8: “An obligation to effect a transaction in immovable property requires a written document” (23 L.S.I. 283). Such an obligatory right is sometimes called a ius ad rem (Adoriti v. Custodian of Absentee Property (1958) 12 P.D. 1718, 1725; cf. Salmond, , Jurisprudence, § 43, p. 238).Google Scholar

14 Arizona case, loc. cit. See, in the same vein, Allon v. Melnik (supra n. 7) at 502 where Witkon J. describes real rights as “available against the entire world … Their basic nature and predominance consist in their being binding not solely against some other party, but upon anyone”; and also Sussmann J.'s dictum quoted supra n. 4.

15 Amsterdam v. Minister of Finance (1952) 6 P.D. 945, 986, where Agranat P. referred to “the well-known distinction between the absolute, real rights— operating against the whole world and subject to the law of rights in rem, as opposed to relative, personal rights—operating against some specific person or persons and subject to the law of rights in personam”. See the authorities quoted there, and in addition, Austin, , Jurisprudence (5th ed., London, 1911).Google Scholar

16 But an action for the protection of a right in rem can be a mere claim in personam (Hohfeld, op. cit. 102 sub. (f); and see Berent v. Berent (1958) 12 P.D. 565, 579: “actions in tort serve … for the protection of ownership”.)

17 Allon v. Melnik, at 503. It has therefore been proposed to replace the adjectives “relative” and “absolute” (cf. supra n. 15) by “paucital” and “multital” (Hohfeld, op. cit. 67 ff.) or, respectively by “polarized” and “unpolarized” (Kocourek, , Jurai Relations (2nd ed., Indianapolis, 1928) 201).Google Scholar

18 It was developed in England by Austin under the influence of German philosophy (Kant and, even more, Leibniz).

19 Gierke, , Deutsches Privatrecht, § 29, p. 257, n. 7.Google Scholar

20 Ne'eman v. Mayor of Tel Aviv (1956) 10 P.D. 1942, 1962, per Agranat P.

21 Bauernfreund v. Drezner (1951) 5 P.D. 1559, 1574, referring to Lauterpacht, , “Contracts to Break a Contract” (1936) 52 Q.L.R. 494 and to the English casesGoogle Scholar, Temperton v. Russell (1893) 1 Q.B. 715; Quinti v. Leathen (1901) A.C. H.L. 495, 510, 535. Adde Millner, , Negligence in Modern Law (London, 1967) 125Google Scholar, noting that the effect of the tort remedy “is indirectly to confer an effect in rem upon the contractual relationship between the parties”. As early as 1913 Ames wrote: “The general duty resting upon all mankind not to destroy the property of another, is as cogent in favour of an obligee as it is in favour of the owner of a horse. And the violation of this duty is as pure a tort in the one case as in the other”. (Lectures on Legal History (Harv. U. Press, 1913) 262).

22 It was not recognized as a tort before the 19th century and was at first restricted to the relations of master and servant (Tedeschi, , “Obligee's Action in Tort Against a Third Party” in Studies in Israel Private Law (Jerusalem, 1966) 139).Google Scholar

23 Although sec. 62 of the Civil Wrongs Ordinance only refers to a contractual obligation, there is no reason not to extend it to any other obligation, such as one deriving from statute or from a judgment. Thus it was held in England that whoever knowingly assists another person to violate an order of the Court is liable to the sanctions of contempt of court as if he had himself been a party to the proceeding in which the order was issued (Seaward v. Pater son (1897) 1. Ch. 545). As for the two restrictions set out in sec. 62, they were inserted for reasons of legislative policy, some obligations were deemed less worthy of protection than others.

24 Land Law, 1969, sec. 9: “Where a person has entered into an obligation to effect a transaction in immovable property, and before the transaction is completed by registration he enters into an obligation towards another person to effect a conflicting transaction, the right of the party to the first transaction shall prevail: Provided that if the party to the second transaction has acted in good faith and for consideration, and such transaction is registered while he is still in good faith, his right shall prevail.” Movable Property Law, 1971, sec. 12: “Where a person has undertaken to vest in another person the ownership or any other right in movable property, and before delivering the property or vesting the right he enters into an undertaking to a third person for the vesting of an adverse right, the right of the person to whom the first undertaking was given shall prevail; but if the person to whom the second undertaking is given enters into the transaction and receives the property or right in good faith and for consideration, his right shall prevail” (25 L.S.I. 175).

25 On the link between sec. 9 of the Land Law and “the legal rules of tort as to causing a breach of contract”, see the apposite dictum of Kistér, J. in Boker v. Anglo-Israeli Company for Management and Liability Ltd. (1971) (II) 25 P.D. 121, 128.Google Scholar

26 On the “illegality” of agreements involving the breach by one of the parties of a contract with a third person, see Corbin, , On Contracts (1962) vol. 6AGoogle Scholar, § 1470.

27 Buckland, , The Main Institutions of Roman Private Law (Cambridge, 1931) 339Google Scholar; Berger, , Encyclopedic Dictionary of Roman Law (The American Philos. Soc., 1953) 447Google Scholar, v° Fraus.

28 Fraudulent Conveyance Act, 1571 (13 Eliz. c. 5), which was preceded by the Deeds of Gift Act, 1487 (3 Hen. vii, c. 4).

29 Sec. 172(1): “Every conveyance of property, made…with intent to defraud creditors shall be voidable, at the instance of any person thereby prejudiced.”

30 The debtor's public examination prescribed by sec. 15 of the Ordinance may serve, among other purposes, that of disclosing such transactions and the debtor examined under oath will be denied the privilege against self-incrimination.

31 Procaccia, U., “Community Property Law in the Bankruptcy of a Spouse” (1976) 7 Mishpatim 266, 292.Google Scholar

32 Sale Law, 1968, sec. 34.

33 See also Weisman, J., “The Land Law”, 452, n. 277Google Scholar. Cf. Paton, , Jurisprudence (Oxford, 4th ed., 1972) 302Google Scholar: “Have I no right in rem to my money, because one who receives it for value and in good faith obtains a title superior to mine even though it was originally taken from me by a thief?” Indeed in Sinclair v. Brougham [1914] A.C. 398, 418–9 it was even held (per Visc. Haldane) that money passes from hand to hand and cannot usually be “followed”.

34 “The duty to perform a contractual obligation is binding upon the contracting parties exclusively, and not upon any person who is a stranger to the contract.” (Tedeschi, , Law of Torts (Magnes Press, 2nd ed., 1976, in Hebrew) § 10, p. 14, note 19.Google Scholar

35 See Mituva v. Kezem (1952) 6 P.D. 4 where the definition of the term “property” as it appears in the Absentees' Property Law, 1950, sec. 1 (a) (4 L.S.I. 68) was discussed.

36 In her comments on the Transfer of Obligations Law 1969 (edited by Tedeschi, § 1, p. 8) M. Ben-Porath explains that “creditor means the owner of a claim”. Levontin also refers to “ownership of a debt” (“Debt and Contract in the Common Law” (1966) 1 Is.L.R. 60, 97).

37 The owner of a right, even though he cannot be said to be in possession of his abstract right, within the meaning of sec. 15 of the Land Law, 1969, is nevertheless entitled to “possess” the documents by which his right and the extent thereof can be proved. If he decides to assign his right, he is bound to deliver to the assignee “the documents relating” to it (Sale Law, 1968, sec. 26). Some obligations are materialized in so-called “negotiable instruments” or other “securities…vesting the holder thereof with the right represented thereby” (in the words of sec. 24 of the Pledges Law, 1967 (21 L.S.I. 44), so that the ownership depends upon the “title…in the bill” (Bills of Exchange Ordinance [New Version], sec. 30 (d). And we still have to mention the banknotes, whose original nature as an acknowledgement of debt by the bank of issue has been completely obliterated, so that they have now become a form of “corporeal” property. (Cf. supra n. 33). It will further be noted that “possession of a right”, like that of tangible property, is legally protected independently of the right of ownership of which it normally constitutes the de facto expression. See Campbell, , “Some Footnotes to Salmond's Jurisprudence” (1941) 7 Camb. L.J. 206, 223.CrossRefGoogle Scholar Levontin describes “debt,” i.e., obligation to pay, as a “chose in action par excellence,” since it is “essentially impersonal” (op. cit. 95); but his notion of debt as “a conceptual bridge between property and obligation” (ibid., 61) brings it considerably closer to a chose in possession.

38 Provided he does not misuse them. This restriction is explicitly mentioned in respect of immovable property in the Land Law, 1969, sec. 14; but the statute is silent as regards other objects of ownership. Can it be inferred that misuse of chattels or of a right of claim is permissible in law? Such a construction would be patently absurd. Cf. sec. 39 of the Contracts (General Part) Law, 1973, which reads: “An obligation or right arising out of a contract shall be fulfilled or exercised in customary manner and in good faith”, a provision which, like all the other provisions of the Law, also applies “to legal acts other than contracts and to obligations not arising from a contract” (sec 61 (b)) (27 L.S.I. 117). See further Tedeschi, , “The Law of Laws” (1979) 14 Is.L.R. 145, 151 (text at n. 13).Google Scholar

39 Sale Law, 1968, sec. 4(a): “The provisions of this Law shall apply to the sale of movable property and also, mutatis mutandis, to the sale of immovable property and of rights”.

40 Gift Law, 1968, sec. 1(b): “The subject of a gift may be immovable property, movable property or rights” (22 L.S.I. 113).

41 Hire and Loan Law, 1971, sec. 2(a): “The provisions of this chapter shall apply to the hire of immovable and movable property and, mutatis mutandis, of rights.” See also sec. 27 which extends this rule to a loan (25 L.S.I. 152).

42 Pledges Law, 1967, sec. 1(a): “A pledge is a charge on property…”; sec. 17(4): “pledged property which is a right can be realised as specified in section 20”. Note that “A mortgage is a pledge of immovable property” (Land Law, sec. 4).

43 Supra n. 24, where attention was drawn to the parallel solutions adopted by the legislator in respect of lands and of chattels. To these two we can now add a third provision, that of conflicting transactions for the transfer of rights. Sec. 4 of the Transfer of Obligations Law, 1969, reads: “If a creditor transfers a right to one person and subsequently transfers it to another person, the right shall vest in the first transferee; Provided that if the debtor is notified of the second transfer before being notified to the first, the right shall vest in the second transferee” (25 L.S.I. 277).

44 Ibid., sec. 1(a).

45 Third party attachment is a method of execution that also corresponds to the attachment of movable and of immovable property. Within everyone of these three classes of property the law enumerates certain assets which are exempt from attachment. The possibility of attachment at the request of a creditor does not detract from the debtor's right to dispose of his property: it simply shows that a debtor is expected to affect it in the first place for the settlement of his debts and that, should he disappoint that expectation, he may be compelled to give satisfaction to his creditors (by the process of execution, by that of bankruptcy, winding up, etc., cf. supra nn. 28–30).

46 This description corresponds to the balance sheet which a corporation is required to prepare annually (Companies Ordinance, secs. 106(4) and 107).

47 This passage, quoted from the 2d, 7th (§ 86) and 9th (§ 89) editions, was deleted from the 12th (1947, see under § 43). “A legal obligation is the subject of ownership. It is the property of the obligee” (Scott, A.W., “The Nature of the Rights of the Cestui que trust” (1917) 17 Colum. L.R. 269, 274).CrossRefGoogle Scholar

48 The misleading similarity between them will be examined and discussed below, § 16 sub. (4).

49 Hire and Loan Law, 1971, secs. 5 and 7.

50 Pledges Law, 1967, sees. 1(a) and 16(a).

51 Land Law, 1969, sec. 93(b): “An easement for the benefit of property may also provide that the owner of the servient property shall carry out a particular act thereon…”

52 Hire and Loan Law, 1971, sec. 21. “The ‘real’ element in lease under our local law derives from the provision of article 590 of the Mejelle, under which the contract of sale yields before an existing lease” (per Sussmann, J. in Allan v. Melnik (1956) 10 P.D. 486, 493)Google Scholar; “For the purpose of distinguishing between a real and a personal right, there is no doubt that that type of lease belongs in English law to the category of real rights, since it is binding not only upon the lessor and the lessees themselves but even upon a third party to whom the property has been conveyed” (per Witkon J., ibid., 503). This is the very substance of the doctrine of “privity of estate” accepted in England, under which tenancy relations continue “between the landlord and the tenant for the time being” (Lawson, , Introduction to the Law of Property (Oxford, 1958) 121).Google Scholar

53 Land Law, 1969, sec. 85(b). The original Draft contained a clause (sec. 147) explicitly declaring that “if the land is conveyed to a new owner, the latter shall be substituted to the mortgagor for all that concerns the mortgage”: the deletion of this clause, in our opinion, is not to be construed as indicative of any change of mind on the part of the legislator. Indeed, “if pledge is to serve its purposes efficiently, it must have the character of a ‘real' security… and it is necessary that any person privy to the pledger … should also be subject to the pledge” (Weisman, J., Comments on the Security Interests Law 1967 (Jerusalem, 1974, in Hebrew), § 9, p. 15).Google Scholar

54 Land Law, 1969, sees. 5 and 93. Here also a more explicit provision (sec. 162) was deleted from the Draft law, reading thus: “An easement is linked to the servient property and any transaction in respect of that property is subject to the easement”. And again it appears from the whole context that there was no intention to give up the substance of the deleted clause. Cf. Salmond (12th ed.) § 43: “It is essential to an encumbrance that it should … run with the right encumbered by it… into the hands of new owners, so that a change of ownership will not free the right from the burden imposed upon it” (emphasis added).

55 The Land Law itself (in sec. 5) defines easement as “a charge on immovable property” and also uses the expression “the dominant property”, although “it cannot be said of land that it has any right, otherwise than figuratively” (Tedeschi, , “Servitudes in Gross” (1977) 7 Mishpatim 456).Google Scholar See also Hibbert, , Jurisprudence (London, 1932) 148–9Google Scholar: “By a fiction it was supposed that the rights were vested in the praedium domináns and the duties imposed on the praedium serviens, and therefore these praedia were deemed to be persons. Really it was unnecessary to do violence to language in this way, since a perfectly simple explanation is that the ownership is the title of the parties to the rights and duties”. In The Yuri Maru (DC Pa) 17 F 2nd 318, 320 it was held that “It is a fiction of admiralty law that a vessel is a person”.

56 See supra n. 12.

57 Hire and Loan Law, 1971, sees. 1 and 3. “By its very nature lease is fundamentally an assemblage of personal mutual relations …” (Silberg J. in the Arizona case at 581—emphasis in the original text).

58 Pledges Law, 1967, sec. 3(a): “A pledge is created by agreement between the debtor and the creditor”.

59 But this is not necessarily the case. First, the possibility still exists to acquire easement “by prescription”, i.e. by continuous user over a period of thirty consecutive years (Land Law, sec. 94; J. Weisman, “The Land Law” 450). Then, the definition of “ownership” (see supra § 6) tends to show that only the owner is authorized to encumber his property; but how is it then possible to explain the provision of sec. 81(b) permitting a tenant to charge his lease with an easement? Does that mean for instance that he may grant me a right of passage over… his lease? Thirdly, the granting of an easement to “a class of persons or to the public” under sec. 92 could only be effected through their authorized representatives or under cover of a contract in favour of a third party (Contracts (General Part) Law, 1973, sees. 34 ff.). Fourthly, although no one can enter into a contract with himself, sec. 98(a) allows the owner of two parcels of immovable property to “charge one of them with an easement for the benefit of the other”; but, to our mind, the creation of such a legal relationship would remain ineffective until at least one of the parcels is conveyed to some other person; and the instrument is meaningless otherwise than in anticipation of such a conveyance.

60 Thus, if a lessee becomes the heir of the lessor, or if a mortgagee purchases the mortgaged property (J. Weisman, op. cit. supra n. 53, at § 61, pp. 296–8. A rule apparently to the contrary is that contained in sec. 98(b) of the Land Law; but (Comp. preceding note in fine) this provision should probably be understood as applying to a transitory stage, which is expected to terminate when the owner of the two parcels conveys one of them to some other person. The same method of construction would apply to the giving of a guarantee or security for a future debt (Guarantee Law, 1967, sees. 1(b) and 2; Pledges Law, 1967 sees. 1(b) and 15(b); J. Weisman, ibid. §§ 7 and 14B).

61 See Salmond (10th and 11th ed.) § 89: “Every encumbrancer is…himself the owner of the encumbrance”. This passage was also omitted in the 12th ed. (at § 45, and cf. supra n. 47). As already noted (supra n. 59), sec. 81(b) authorizes a tenant to “charge his lease with an easement”—whatever that may mean.

62 J. Weisman, (op. cit. supra n. 60) § 81.

63 Hire and Loan Law, 1971, secs. 5 and 21, disclosing the intention of the Israeli legislator to adopt the English doctrine of “privity of estate”. But this does not exclude the operation of the doctrine of “privity of contract”, which “survives all alienation” (Lawson, op. cit. supra n. 52, at 122): Thus the original lessor and lessee guarantee each other permanently”). Adde Witkon J.'s dictum quoted supra n. 52.

64 J. Weisman, op cit. supra n. 60 at 379.

65 Pledges Law, 1967, sec. 12; Yera'ooni v. Halva'ah ve-Khisakhon (1975) (II) 29 P.D. 365, 371, based on J. Weisman, op. cit., at § 54, p. 247.

66 Execution Law, 1967, sec. 76(a) (21 L.S.I. 128); Bankruptcy Ordinance, secs. 30 and 59.

67 Arizona case at 582.

68 For this reason a landowner is called “reversioner” in English law.

69 Land Law, 1969, sec. 27; Movable Property Law, 1971, sec. 9; Contracts (General Part) Law, 1973, sec. 59. The parallel treatment of ownership of corporeal and incorporeal property (already described above § 6) is further exemplified in the Objects and Reasons to the said sec. 59 (62 in the original Draft): “Plurality of creditors, the condition of the same debt being owed to two or more persons, is actually of the same nature as that of co-ownership, in which the property owned is an abstract right rather than corporeal property”.

70 J. Weisman, “The Land Law” 420.

71 In some countries experiments have been recently made to meet the special demand for seasonal accommodation, especially in spas or resorts where habitual guests desire to purchase a permanent right of exclusive user of a specific house or flat during the same period every year. This object does not seem attainable otherwise than by creating a corporation which would hold and manage the property on behalf of the respective occupiers. (See Roux, M., “Multipropriété et Fiscalité” (1976) Revue d'Economie et de Droit Immobilier 28–44).Google Scholar

72 Sec. 42 of the Succession Law, 1965 (19 L.S.I. 59), allows a testator to devise property to “successive heirs”: the grant of the remainder to will be conditional upon his surviving A and upon A's not having alienated the devised property during his lifetime. The problems arising from this innovation in the law of succession are numerous and complex (J. Weisman, “The Land Law” 410).

73 Land Law, 1969, sec. 3.

74 “Lease for a long term is equivalent to full ownership” (per Witkon, J. in Alton v. Melnik (1956) 10 P.D. 486, 503)Google Scholar. The Land Law itself (sees. 3 and 106) treats so-called ‘long-term tenancy”, i.e. for a period of more than 25 years, as tantamount to transfer of ownership; and see the critical remarks of J. Weisman, “The Land Law” 431–2. Thus, “if A let B a house on a lease for 2,000 years it may be very unclear…whether A or B or neither should be called owner” (A.M. Honoré, “Ownership”, in Guest, A.P., ed., Oxford Essays in Jurisprudence (Oxford U.P., 1961) 111).Google Scholar History of the law shows that such artificial combinations are doomed to collapse sooner or later before the facts of life, when the landlord's claim to rent or even ejection will inevitably be resented as an intrusion upon another person's property!

75 Sale Law, sec. 4; Land Law, 1969, secs. 6 and 7(a).

76 It requires time and effort to complete the necessary inquiries as to title and charges affecting it. The greatest delay is caused by the Treasury: not only does the latter levy a heavy fee on the transaction itself, but it takes the opportunity to demand anticipatory payment of other taxes connected with the property, in addition to the many other methods of recovery available to the State, which are amply sufficient to the purpose and perhaps even excessive (J. Weisman, “The Land Law” 436, notes 205–7).

77 The short title of sec. 161 of the Land Law (“No equitable rights”) expresses “the desire to abolish this former stronghold of English law”, but “this purpose has only partially been realised” (J. Weisman, ibid. 383). In particular, sees. 7(b) and 9 of the statute indicate that, as soon as a person “has entered into an obligation” to convey immovable property, the purchaser is treated “in equity” as the owner; so that, although his right does not yet amount to “legal” ownership, it will at once be protected against the vendor and also against any stranger whose right is tainted by mala fides (or lack of consideration which denotes such mala fides). This rule is not particular to the English law of equity, but has been spontaneously adopted wherever the system of registration has been organized. The originality of English law of equity and its unusual development are due, we believe, to the practice of creating equitable rights designed to subsist as such, of which “trust” for the management of the legal owner's property is the best illustration.

78 Land Law, sees. 126 ff.

79 Contracts (General Part) Law, 1973, sec. 12, on liability for failure to act “in customary manner and in good faith” in negotiating a contract; Moshe Kott v. Irgun ha-Daywrim (1977) (III) 31 P.D. 813.

80 Komerovsky v. Director of Land Betterment Tax (1953) 7 P.D. 141, 155, § 5.

81 “Of course an equitable obligation, as clearly as a legal obligation, is the subject of ownership. It is the property of the obligee” (Langdell, , Brief Survey of Equitable Jurisdiction (2nd ed.) 5Google Scholar quoted by Scott in his article referred to supra n. 47, loc. cit.).

82 Compare supra n. 13.

83 Under sec. 127(c) of the Land Law, as originally enacted, the term of validity of a note of caution was limited ((1970) 5 Is.L.R. 314); but this sub-section was deleted in December 1972, probably to alleviate the duties of the Land Registry.

84 Land Law, 1969, sees. 99–101. Only when created by contract is such right subject to registration. Among co-heirs the right of pre-emption subsists during two years after the making of an order of succession or probate, but it will be prolonged if it has been registered within the said two years (sec. 100(b)). As between spouses registration is completely dispensed with (sec. 101).

85 Land Law, 1969, sec. 131: “Where a note has been entered…no transaction conflicting with the contents of the note shall be entered as long as the note has not been struck out.” Without registration the conflicting transaction cannot be completed and it will amount to no more than “an obligation to effect a transaction” (sec. 7).

86 We have not included in our analysis that class of rights, whose existence and nature have no direct impact on the solution of our problem.

87 From both classical and modern schools of thought: for the former, see Rigaud, L., Le Droit Réel (Toulouse, 1912) 14Google Scholar: “Une théorie ne vaut que par la quantité de choses qu'elle explique”. Inclined to follow the modern doctrine, A.N. Yianno-poulos writes: “The validity of a legal theory is tested by its ability to explain the function of legal institutions” in Book Review (1963) 12 A.J.C.L. 116 at 119 (hereinafter referred to as Yiannopoulos).

88 See supra n. 3.

89 In France, Chevalier, J., (1960) Rev. Trim. Dr. Civ. 600–1Google Scholar; in Belgium, , Dekkers, R., (1960) Journ. Trib. 697–8Google Scholar; in Holland, Dekhuyzen, M.C., (1967) Themis 231–6Google Scholar; in Italy, Rescigno, P., (1965) JVS Riv. di Scienze Giur. 472–80Google Scholar; in Latin America, Kummerow, G., (1961) Riv. del Min. de Justicia (Venezuela) 199–212Google Scholar; Laquis, M.A., (1966) Rev.] ur. de Buenos Aires 239–52Google Scholar; in Canada, Baudouin, L., (1962) Rev. du Barreau du Canada 220–3Google Scholar. The proposed method of classification has been adopted in some text books, such as Kummerow, G., Buenos y Derechos Reales Derecho Civil II, Cursos de Derecho (Fac. de Derecho, Univ. Central de Venezuela, Caracas, 1965) § 28, pp. 116–28Google Scholar. It was given prominence in Encyclopédie Dalloz, Droit Civil III (1972), v° Droit, §§ 48–52, where it was welcomed as “une reconstruction dont l'architecture force l'admiration” (at § 49).

90 See supra n. 9.

91 Pugliese, G., “Diritti Reali” in Encicl. del Diritto (Milano, 1964) XII § 10, pp. 769–70.Google Scholar

92 See supra n. 87. Reservations were also expressed by Profs.Tedeschi, and Levontin, in (1968) 3 Is.L.R. 153Google Scholar (see supra n. 10), as also by Rigaud, L. (1963) Rev. Intern. Dr. Comp. 557–67Google Scholar, Raiser, L., Juristenzeitung (1963) 422–3Google Scholar, Lawson, F.H. (1966) Rabeis Zeitschrift 147–9Google Scholar, Aubert, Flour et, Les Obligations (Paris, 1975) I, §§ 17–18, pp. 11–12Google Scholar, and Ghestin, et Goubeaux, , Traité de Droit Civil (1977) I §§ 220–3, pp. 168–72.Google Scholar

93 We do not propose to discuss a fourth type of criticism inspired by purely political considerations, such as that published in Roumania by Opriçal, C. (Justitzia Nouã (1966–1967) 42–55)Google Scholar who denounces our generalization of the concept of ownership as a move in the struggle of capitalist bourgeoisie against the proletarian working classes: our explicit words of caution insisting on the neutrality of our stand, comparable to that of a mathematician, were to no avail. For the same reason we shall say nothing of the dithyrambic comments of the Dutchman Dekhuyzen (see n. 89) extolling the Judaeo-Christian ideals he found embodied in the universal duty of abstention.

94 At 119.

95 At 116: “Various theories have been advanced but none has succeeded in furnishing generally acceptable criteria for the distinction between personal and real rights.” And at 119: “Perhaps any search for everlasting classifications is doomed to failure.” See parallel passages in Yiannopoulos, A.N., “Real Rights in Louisiana and Comparative Law” (1963) 23 La.L.R. 161, 548.Google Scholar

96 As recommended by Gény, F., Science et Technique de Droit Privé Positif (Paris, 1924) vol. 3, pp. 241–2.Google Scholar

97 On this point there is general consensus among our opponents themselves. Thus, Yiannopoulos, at 119: “From the viewpoint of pure analysis, the author is consistent in his reasoning, and the system he develops is, indeed, rational”. Pugliese congratulates us on the strictly logical structure (“logicamente rigoroso”) of our doctrine (p. 770); and Ghestin et Goubeaux concede that it is “rationnellement construit” (op. cit. § 220, p. 161, n. 45).

98 Dabin (see supra n. 9) at 20: “pour l'auteur … ie droit réel n'existe pas); and at 27: “si tout est propriété, il n'y a plus de propriété”. Eminent teachers of the law like Marty, and Raynaud, (Droit civil, les Biens (Paris, 1965) II, § 6, p. 13, n. 2)Google Scholar have let themselves be swayed by such a shallow argument. More restrained, but not less insidious, is the reason given by Flour and Aubert (cited supra n. 92) for rejecting our theory. These authors approve both its principles and its implications on the whole: “Il est incontestable que la théorie de M. Ginossar est très riche et permet un très sensible affinement de la comparaison entre le droit réel et le droit de créance”. They even admit that the dual structure of the obligatory right in no way alters the substance of that right as a relation between debtor and creditor. Their only objection is that the general duty of abstention, being a common element to both classes of rights, might obscure the boundary that separates them. Would it not be just as logical to reject the concept of ownership altogether (pace Dabin) lest it obliterate the distinction between movables and immovables?

99 Ibid., at 43–4.

100 Ibid., at 26–7.

101 Pugliese (at 770) went so far as warning against the error of taking it as so completely new as may appear at first sight (“l'errore di ritenere che esso sia interamente cosi nuovo come sembra a primo aspetto”).

102 Tedeschi, , “Obligee's Action in Tort against Third Party” in Studies in Israel Law (Jerusalem, 1966) 176.Google Scholar

103 Ibid., at 174.

104 Ibid., at 177.

105 Legal jargon is not quick to adopt new terms, such as those proposed by Hohfeld and Kocourek (supra n. 17); nor are professional lawyers inclined to observe the niceties in the distinction between parallel concepts, such as “rights”, “liberties”, “powers”, discussed in depth by the finest legal scholars. The opinion of Agranat, J. in Podemsky v. A.G. (1952) 6 P.D. 341Google Scholar, profusely quoting the authorities of Salmond, Paton and Corbin (at 354), is quite exceptional in this respect.

106 In the Hebrew version of the present article we did suggest giving a specific name to the “reinforced personal right” analyzed above (§ 9): the creation by statute of this new type of right amply justifies the search for a new term for it and the only problem is, to find a suitable name. The lack of a proper equivalent in English need not worry us excessively, as long as rights of that new category are still unusual in Anglo-American law; and in the meantime we can continue to use the above paraphrase.

107 Supra n. 98.

108 Yiannopoulos, at 119.

109 Yiannopoulos, A.N., “Real Rights in Louisiana and Comparative Law” (1963) 23 La.L.R. 563–7Google Scholar. In his article on “Language and the Law” ((1945) 61 Q.L.R. 71), Glanville Williams notes that “[on] the whole, lawyers… have been at pains to construct and preserve a moderately precise technical language. Oddly enough, it is least precise in its most fundamental parts” (179); and he adds that “[the] worst form of the proper meaning error is the supposition that words have not merely proper meanings, but single proper meanings” (386).

110 Restatement of the Law of Properly (1936) § 5, comment d.

111 Contracts (General Part) Law, 1973, sec. 40: “An obligation may be fulfilled by a person other than the debtor unless according to the nature of the obligation or to the agreement between the parties the debtor must fulfil it personally”.

112 Transfer of Obligations Law, 1969, sec. 1(a): “The right of a creditor… is capable of being transferred without the consent of the debtor, unless its trans-ferability is negated or restricted by law, by the nature of the right or by agreement between the debtor and the creditor”.

113 See Salmond, § 43, pp. 238–41; cf., Nokes, , The Institution of Property (1936) 351–3, 535–7.Google Scholar

114 See supra n. 47; Prof. Beekhuis, J.H., “Property and Trust in Civil Law” in Int. Enc. of Comp. Law vol. 6, §§ 3–4, pp. 5–6.Google Scholar

115 Gaius, Inst. II, 13–14.

116 Tedeschi, op. cit. supra n. 22, at 177. On debt as “a conceptual bridge between property and obligation”, see Levontin quoted supra n. 38.

117 This is hinted by Yiannopoulos when he writes (at 119): “A living and growing law cannot be put on a conceptualistic procustean bed without torture and distortion”. (The same sentence, less the four last caustic words, occurs in the corresponding passage in his article (quoted supra n. 95) at 549). Insofar as that passage is indeed aimed at our theory, it can hardly be reconciled with the reviewer's own statement (ibid.) that: “If a new civil code were to be enacted in a new territory, Professor Ginossar's system could be adopted in the interest of clarity and consistency” (italics added). As for Pugliese (at 770), he explicitly ascribes us the intention of formulating directives for future legal reform (presumably in Israel): “i concetti elaborati dal GINOSSAR non constituiscono tanto una rappresentazione degli istituti positivi…quanto piutosto l'enunciazione della struttura che l'autore riterebbe ad essi pia confacente, se se ne attuasse una riforma in base di un disegno considerato razionale.” See also the concluding words in Prof. Raiser's book review (supra n. 92).

118 Cf., the last of the Ten Commandments (Deut. XX:17).

119 See supra nn. 39–42; adde Beekhuis (quoted supra n. 114) at n. 29: “In legislations where the concept “thing” is limited to physical objects, this figure creates difficulty.”

120 See supra n. 19. Less ridiculous, but not less irrational, is the mode of defining ownership as the sum-total of “rights” or benefits (user, possession, disposition, etc.). In this respect our statute (see § 6, text preceding n. 37) has followed the model set by Roman law.

121 1, 3 Inst., I, 1: Honeste vivere, alterum non laederé, suum cuique tribuere.

122 Supra text at n. 36.

123 Roguin, E., La Règle de Droit (Lausanne, 1889) § 43, p. 81.Google Scholar

124 In a subsequent work, Science Juridique Pure (1922–23) I § 230; II §§ 461–72, the same author renewed his efforts to substantiate his plea, with disappointing results.

125 Quoted supra at n. 22. The essay, originally written in Italian (Rivista di Diritto Civile (1953) 291) was first translated into Hebrew and included in a collection of Studies in Israeli Law (1958). In the present English version (1966), several passages were added referring to our theory.

126 At 170; see also at 174, 175 and 176.

127 At n. 90.

128 At 179.

129 At 171.

130 At n. 90.

131 Buckland, W., Some Reflections on Jurisprudence (Camb. U. Press 1945) 97.Google Scholar Such was the view of Holmes, as expressed in his book on Common Law (1881) 301: “The only universal consequence of a legally binding promise is, that the law makes the promisor pay damages if the promised event does not come to pass”; and in his address “The Path of the Law” (1897) 10 Harv. L.R. 457, 462, he insists that: “the duty to keep a contract at common law means that you must pay damages if you do not keep it—and nothing else”. No wonder that Pollock rejected what he termed “a brilliant paradox” (Contracts (1911) 192 note k; and see the Holmes-Pollock Letters (Harv. U. Press, 1946) passim). The performance of a contract is thus whittled down to “something that happens” (Buckland, , “The Nature of the Contractual Obligation” (1942–1944) 8 Camb. L.J. 247, 249CrossRefGoogle Scholar) and the notion of obligation is drained of its very substance.

132 Tedeschi, op. cit. at 178–9.

133 Ibid., at 179.

134 “A man is not entitled to go into a hazardous business and immediately before doing so settle all his property voluntarily, the object being this: ‘If I succeed in business, I make a fortune for myself. If I fail, I leave my creditors unpaid. They will bear the loss.’ That is the very thing which the statute of Elizabeth was meant to prevent” (Re Butterworth, Ex parte Russell (1882), 19 Ch.D. 588, at p. 598, per Jessel, M.R.).

135 For a systematic survey of “Misleading Factors”, see infra § 16.

136 For an example of the confusion, cf., Campbell, , “Some Footnotes to Salmond's Jurisprudence” (1941) 7 Camb.L.J. 210, 216CrossRefGoogle Scholar. The distinction between “everybody” and “anybody” is somewhat blurred by the fact that good faith may serve as a justification for a stranger's interference in a right, especially in a right in personom (cf., supra § 5). This circumstance has led to the erroneous assumption that the “world at large” does not necessarily include “everyone in the world”, but simply refers to an “indeterminate” obligor (Scott, , “The Nature of the Rights of the Cestui que trust” (1917) 17 Colum.L.R. 269, 273–4CrossRefGoogle Scholar; and cf., supra nn. 14–17, and infra n. 181).

137 Dig. VIII, 1, 15, § 1: Servitutum non ea natura est ut aliquid faciat quis … sed ut aliquid patiatur aut non Jaciat.

138 Buckland, W., The Main Institutions of Roman Private Law (Cambridge Univ. Press, 1931) 280Google Scholar. Although the Roman sources only relate to the content of a contract, they apply just as well to a right, especially to one derived from contract, like easement.

139 See supra n. 51.

140 Dig. VIII, 5 6 § 2. Exponents of Roman law cannot conceal their embarrassment at this encroachment upon the “principles”. See inter alia W. Buckland, op. cit. at 155; Biondi, B., Le Servitù Prediali nel Diritto Romano (Milano, 1954) § 44 p. 156Google Scholar; cf., Ophir, M., “Comments on the Law of Servitudes in Israel” (1972) 7 Is.L.R. 528 at 531.CrossRefGoogle Scholar

141 See supra n. 1.

142 Lawson, , Introduction to the Law of Property (Oxford, 1958) 100Google Scholar: “servitudes are all negative” (but cf., contra at 98); Hibbert, , Jurisprudence 233Google Scholar: “Servitudes, being rights in rem, never impose a positive duty on the servient owner”. The same rule applies in Italy (Pugliese, at 766) and was observed in Israel before the Land Law, 1969 (see Brothers Goldstein v. Prywes (1956) 10 P.D. 114, 115; and cf., Tedeschi, , “Servitude in Gross” ((1977) 7 Mishpatim 456, 472)Google Scholar. English law is also most reluctant to enforce real covenants calling for affirmative acts; and in the U.S.A. there is an apparent inclination to follow the English rule on that point (Megarry, and Wade, , The Law of Real Property (4th ed., 1975) 811Google Scholar; Austin, , Jurisprudence (1885) II, p. 811).Google Scholar

143 For Israel, see supra nn. 50 and 51. As regards foreign laws, those of several countries allow the creation of a pecuniary debt which is purely in rem. Thus, under the German B.G.B., “a piece of land may be so encumbered that a certain amount is to be paid out of this piece of land to the person for whose benefit the encumbrance is constituted” (§ 1191, as translated by Forrester, Goren & Iligen, ed. Rothman, 1975). Such a charge, called Grundschuld, involves no personal liability, whereby it is distinguished from mortgage (defined in § 1113 of the same Code). See Cohn, E.J., Manual of German Law (2nd ed., London & Dobbs Ferry, 1968) I, 215–6Google Scholar. The Swiss Code of 10 Dec. 1907 contains a similar clause (sec. 847). In an Israeli case the parties relied upon the provisions of the Imperial Russian Civil Code, to the effect that the sole remedy of a creditor in whose benefit a mortgage had been registered on property of the debtor was to sell that property: as a consequence of such a sale the debt was discharged, even though the proceeds had been insufficient to cover the entire debt. (Shor v. Estate Weisman (1954) 8 P.D. 612, 625). As regards French law itself, Dabin (cited supra n. 9, at 36 ff.) has vainly endeavoured to prove that it precludes the existence of real rights in faciendo. He therefore had to fall back on an alternative argument and to accept their existence as mere “personal” rights available against whomever happens to be the owner of a certain property (ibid., at 40–42; and see Marty & Raynaud, Les Biens II § 7); but who will explain that such abnormal personal rights coincide so exactly with rights in rem?

144 Art. 1997, sec. 3. Yiannopoulos apprehends that such real rights do not fit well in the traditional classification and that is probably what induced him to recommend their abolition (see his article quoted supra at n. 95, at 534 and 551); but even if his recommendation is followed by the legislature it cannot be gainsaid that real obligation, however, undesirable, is possible and that it exists, or has existed sometime and somewhere.

145 Lawson, op. cit., at 99: “The law allows such property rights to be created, but subject to definite rules, far more restrictive than those which control the formation of contracts.” What will be the effect of a contract purporting to create a real right in disregard of these restrictions? Strict application of sec. 30 of the Contracts (General Part) Law, 1973, makes the entire contract void because of illegality; but this may seem unduly harsh and a way might perhaps be found (on the authority of sec. 31) to deny only the effect in rem of the clause, without depriving it of its validity as a personal obligation.

146 Supra n. 67.

147 Land Law, 1969, sec. 124.

148 Weisman, “Land Law” 453.

149 Ibid. at 453–4. Thus certain leases need not be registered, so that a purchaser of land may have to meet a claim for delivery to an unregistered lessee.

150 Salmond, § 112: “Real property and immovable property form intersecting circles which are very nearly though not quite coincident”.

151 Sale Law, 1968, sec. 34: “Where any movable property is sold by a person who carries on the sale of the kind of thing sold, and the sale is made in the ordinary course of his business, ownership passes to the buyer free of every charge, attachment or other right in the thing sold … provided that the buyer buys and takes possession of it in good faith”. It is not yet clear how this provision can be reconciled with that of sec. 4(3) of the Pledges Law, 1967, giving effect to a pledge of movables registered under the latter Law. On this point see Weisman, J., “Principles of the Pledges Law” (1969) 4 Is.L.R. 417, 434.Google Scholar

152 Heathcote-Williams, , The Law of Restrictive Trade Practices and Monopolies (London, 1956) 70, 82.Google Scholar

153 Such was already the position before the enactment of the Act (See British Motor Trades Assoc. v. Salvadori [1949] Ch. 556; Kiralfi, , “The Problem of a Law of Property in Goods” (1949) 12 Mod. L.R. 424, 429Google Scholar; Vaines, Crossley, Personal Property (1954) 12–3Google Scholar; and Heathcote-Williams (op. cit.) wrongly describes sec. 25(1) as “a wholly new departure”. Despite the absence of a similar provision in the Israeli statute the solution is probably identical. Cf. infra n. 184.

154 On numerus clausus in comparative law see Beekhuis (in work cited supra n. 114) at n. 53. Not being in the nature of a right in rem, a “reinforced” personal right to land, as described above (§ 9) is not included in the list. Before the enactment of the Land Law, 1969, the nature of a husband's right to the revenue of his wife's mulg property recognized by Jewish law had been discussed in Sidis v. Sidis (1958) 12 P.D. 1528, 1532 and found to belong to the class of rights in rem, but to have been abolished by the Equality of Women's Rights Law, 1951.

155 Land Law, 1969, sec. 62 (d).

156 See supra § 8(b)(1).

157 Supra n. 65.

158 Pledges Law, 1967, sec. 1(a): “A pledge is a charge on property as security for an obligation…”

159 In addition to this traditional type of easement, sec. 92 of the Land Law, 1969, now allows the creation of an easement “for the benefit of a particular person or class of persons or for the benefit of the public”; but these are still considered to be unusual (Tedeschi, , “Servitude in Gross” (1977) 7 Mishpatim 456, 457).Google Scholar

160 Tedeschi, , “Ownership and Co-ownership in Condominium” (1976) 30 HaPraklit 214, 233.Google Scholar

161 Hire and Loan Law, 1971, sec. 22: “The lessee shall not without the consent of the lessor transfer his right…” Cf. infra n. 170.Google Scholar

162 But there are certain countries where this can be achieved directly, cf. supra n. 143 and in Israel, supra text at n. 155.

163 Cf., supra n. 142.

164 Cf., supra nn. 53 and 54. The Israeli legislator did not even have the courage, when using the expression “rights in land”, to disclose whether he meant rights in rem as distinguished from rights in personara (J. Weisman, “Land Law” 409, text and note 104). See also Ophir, M., “Comments on the Law of Servitude in Israel” (1972) 7 Is.L.R. 528, 554.CrossRefGoogle Scholar

165 Pledges Law, 1967, sec. 15(a).

166 Sale Law, 1968, as amended in 1971, secs. 34A and 34B.

167 Bankruptcy Ordinance, 1936, sec. 51(1). In feudal times the right of an owner to abandon his property was elaborated in great detail as one of the mainstays of right in rem. Such abandonment was considered to be the most convenient way to discharge a real obligation, ownership of the encumbered res being thereby vested in the owner of the encumbrance without any payment on his part and even against his will: the encumbrance itself was thus expunged (see supra n. 60). The provision of the Bankruptcy Ordinance is perhaps a last vestige of that ancient institution.

168 Land Law, 1969, sec. 96. Even before the commencement of that Law an Israeli court exercised its discretion by refusing to issue a declaratory judgment as to the existence of a servitude, on the ground that the need for such a servitude no longer existed. (Szczupak v. Rappaport (1959) 13 P.D. 39).

169 See supra § 8(b), text at n. 66.

170 The central issue in the Arizona case was whether a lessee was entitled to transfer his lease; and the Supreme Court assumed that this question depended primarily on the personal or real nature of a tenant's right. That is why the late Silberg J. embarked on his long disquisition on jurisprudence, history of law and comparative law; but he ultimately reached the surprising conclusion that “there is no mutual necessary connection between “reality” and “transferability” of lease! (at 581, § 9). In another case the same Justice saw as a clear sign of “reality” the fact that its owner is precluded from waiving his right (Sidis v. Sidis quoted, supra n. 154: this may have been a (mistaken) reference to the option given to the owner of encumbered property to discharge his real obligation in the manner described (cf., supra n. 167), but quaere. Similarly, in his article (quoted n. 160) M. Ophir seeks for signs indicating the in rem character of a servitude and mentions the two following characteristics: (a) servitude is by definition “a charge on immovable property”; and (b) its grant is subject to registration. The first “sign” is in harmony with our proposed criterion, in that “the burden of a servitude will always pass with the servient land on a transfer or other change in title” (op. cit. at 539); but registration cannot be retained as a sign, since not only does it not cover all rights in rem (supra n. 147) but it occasionally applies to rights in personam which are thereby “reinforced” (supra nn. 82–85).

171 Incidentally, it is this very quality which clears the way for the “practical subterfuge” described supra, text at n. 122.

172 Dig. XII, 2, 1 § 1: “Dominium rerum ex naturali possessione coepisse…”

173 Supra n. 129.

174 Cf., supra n. 120.

175 Even the power to dispose may occasionally be paralyzed by “any law or by agreement”, yet it will remain vested in the owner as a potential prerogative.

176 Succession Law, 1965, sec. 17—independently of the estate duties levied by the Treasury.

177 Land (Acquisition for Public Purposes) Ordinance, 1943.

178 “Israeli land” has aptly been called “Israel miri land” in the style of abrogated Ottoman land law (J. Weisman, “Land Law” 399–402; cf., supra n. 74). It is a well-known truism that English law does not recognize private property of land, which is still supposed to “belong” to the Crown (Megarry, & Wade, , The Law of Real Property (4th ed., 1975) 13Google Scholar; Cheshire, , Modern Law of Real Property (12th ed., 1976) 28).Google Scholar

179 Mainly as maintenance and also, in recent times, as common property of the spouses.

180 See supra § 14, last paragraph.

181 See supra n. 16. Most relevant in this respect are the following reflections of W. Buckland (quoted in n. 131) at p. 104: “The root idea underlying this modern notion seems to be that every right is a claim, that the idea ‘right’ imports a ground of complaint against someone. From this it is a natural corollary that there is no such thing as a right in rem. Any claim under such right must, it is said, be a claim against an individual. The right is thus no more than a set of potential rights in personam. The so-called right of property, with its almost infinite content, is no more than potential rights of action for trespass or nuisance. Such a right, it seems, is ‘in the air’ until someone attacks it by doing something that gives a right of action”. In other words, it is not against us that the blame for denying the existence of right m rem should be placed (supra n. 98), but on the adherents of the classical doctrine themselves, inasmuch as they ascribe too great importance to the secondary right to redress!

182 The confusion can be traced to the well-known formula proposed in the 18th century by Pothier, defining real right as “a right in a thing, by which it belongs to us, at least in some respects” (“un droit dans la chose, par laquelle elle nous appartient, du moins à certains égards”—Pothier, , Traité du Domaine de Propriété § 1, ed. Bugnet, , vol. 9, p. 101Google Scholar). While property does belong to its owner, it can in no. way be said to belong to a tenant, a mortgagee or the beneficiary of an easement, for what belongs to them is a right in another person's property (ius in re aliena). Salmond (11th. ed.) § 89, p. 300: “The owner of the right is he in whom the right itself is vested, while the encumbrancer of it is he in whom is vested, not the right itself, but some adverse, dominant and limiting right in respect of it”.

183 Tedeschi, op. cit., supra at n. 102; Levontin, A.V., “Debt and Contract in the Common Law” (1966) 1 Is.L.R. 60Google Scholar: “The difference between what a man already owns, or property, and what he is only entitled to claim, or obligation, is fundamental”.

184 Maitland, , Equity (1949) 161Google Scholar, explaining Walsh v. Lonsdale 21 Ch.D. 9 as “a somewhat difficult and dangerous case”. The passage proceeds as follows: “I take a lease; my lessor then sells the land to X; notice or no notice my lease is good against X. I take a mere agreement for a lease, and the person who has agreed to grant the lease then sells and conveys to Y, who has no notice of my merely equitable right. Y is not bound to grant me a lease”.