THE DEVELOPMENT OF THE LAW OF TORTS IN ISRAEL
| Date | 01 May 1961 |
| DOI | http://doi.org/10.1111/j.1468-2230.1961.tb02181.x |
| Published date | 01 May 1961 |
| Author | R. Gottschalk |
THE
DEVELOPMENT
OF
THE
LAW
OF
TORTS
IN
ISRAEL
I
ARTICLE
46
of the Palestine Order in Council provides that the
jurisdiction of the civil courts shall be exercised in conformity with
the Ottoman law in force in Palestine on November
1,
1914,
and
such later Ottoman laws as have been
or
may be declared to be in
force by public notice, and such Orders in Council, Ordinances and
regulations as are
in
force in Palestine,
or
may hereafter be applied
or
enacted; and subject thereto, and
so
far as the same shall not
extend
or
apply, shall be exercised in conformity with the sub-
stance of the common law, and the doctrines of equity in force in
England, provided always that the said common law and doctrines
of equity shall be in force
so
far only as the circumstances of
Palestine and its inhabitants permit and subject to such qualifica-
tion as local circumstances render necessary.
The said article of the Palestine Order in Council formed at the
time of the Mandate the basis of the jurisdiction of the courts, as
far as the law of
torts
was concerned. During the twenty-eight
years of the Mandate, the law of torts developed slowly,
if
at all,
and this was due to various factors. The Ottoman law, as far as
it applied to Palestine and its inhabitants, made very little provi-
sion for compensation for injuries to the person, and the Supreme
Court of Palestine hesitated to introduce the English law of torts
into Palestine by way of article
46
of the Palestine Order in
Council. This state of affairs resulted in a deplorable situation.
In
Civil Appeal
88/30
the Acting Chief Justice summarised the
facts of the case before the court as follows:
"
The Municipality of Haifa had dug a trench
or
ditch in
a public road, had left
it
unprotected and unguarded and a
certain Dr. Caesar Khoury whilst using the said public road
had unwittingly fallen into the same, thereby fracturing his
right shoulder-blade."
The learned judge continued
:
"
the question for this court to decide is the measure of
damages,
if
any, respondent is entitled to, and unfortunately
for this purpose the Mejelle, as might be expected from a body
of law created to meet the needs
of
an
agricultural community,
devotes considerable space to the subject of damages done by
animals, but in the main is silent with regard to injuries caused
to the person."
1
Rotenberg
Collection
of
Judgments,
Vol.
111,
p.
134.3.
345
VOL.
24
13
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