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In speaking to an international congress on a given field of Israel law it would be natural, in order to facilitate communication with our guests from abroad, to compare the local law with the rules prevailing in one or more foreign systems. By doing so, similarities as well as dissimilarities could be pointed out and thereby the local picture put into proper perspective.Such comparison would have been easier had this congress taken place some years earlier, say in 1967. At that time a sweeping statement to the effect that the law of contract in Israel was the same as in England would have been fairly correct. To be true, some remnants from the pre-Mandate period of Ottoman legislation were still in force. But their impact on the living law was almost negligible in the face of the pervasive influx of English law and its nearly total domination in the field of contracts.English principles and precedents were applied throughout, whether in compliance with the mandate contained to that effect in art. 46 of the Palestine Order-in-Council of 1922 (which was maintained on the establishment of the State) or, simply because English law and English law reports were better known to most lawyers, both on the bench and at the bar. The papers read by Judge Baker and Advocate Shimron at the International Lawyers' Convention here in Jerusalem in 1958 bear ample witness to this state of affairs.
In speaking to an international congress on a given field of Israel law it would be natural, in order to facilitate communication with our guests from abroad, to compare the local law with the rules prevailing in one or more foreign systems. By doing so, similarities as well as dissimilarities could be pointed out and thereby the local picture put into proper perspective.Such comparison would have been easier had this congress taken place some years earlier, say in 1967. At that time a sweeping statement to the effect that the law of contract in Israel was the same as in England would have been fairly correct. To be true, some remnants from the pre-Mandate period of Ottoman legislation were still in force. But their impact on the living law was almost negligible in the face of the pervasive influx of English law and its nearly total domination in the field of contracts.English principles and precedents were applied throughout, whether in compliance with the mandate contained to that effect in art. 46 of the Palestine Order-in-Council of 1922 (which was maintained on the establishment of the State) or, simply because English law and English law reports were better known to most lawyers, both on the bench and at the bar. The papers read by Judge Baker and Advocate Shimron at the International Lawyers' Convention here in Jerusalem in 1958 bear ample witness to this state of affairs.
It is not always easy to decide when we must turn to English law. And once it has been determined that reference to English law is appropriate, there is the further question of the substance and application of principles drawn from English law. In such case, English law forms part of the local law, and need not be ascertained as required by the rules of private international law in respect of foreign law.This makes the local law directly dependent upon English case-law, which itself is constantly being renewed and developed. Such dependence may seem to impair the independence of the Israeli legal system. The question could not, of course, be raised during the Mandatory period at a time when there existed a possibility of appeal from the Mandatory Supreme Court to the Privy Council in Westminster. But after the establishment of the State Cheshin J. said:It is unthinkable that a sovereign nation with its own laws and its own legal system would continue to be subject to the authority of a foreign nation's legal system and to changes in rulings which are likely to be introduced in her courts, only because in the past, when there was a strong tie between the two nations, the former drew from the legal system of the latter.
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