² Wolff, M., Private International Law (2nd ed.) 277.Google Scholar

³ Aminjon, , Précis de droit international privé (3rd ed.) vol. II p. 73.Google Scholar

⁴ Published under the auspices of the Ministry of Justice, December 1955.

⁵ Until the Determination of Age Law, 1963, which conferred on the Magistrates' Courts the jurisdiction to give declaratory judgments as to age, Israeli practice was that all such matters were automatically brought before the District Courts, since they were regarded as “matters of personal status”. Thus in one of its judgments in the early years of the State, the Supreme Court declared: “For many years now it has been the practice of the District Courts in this country to give declaratory judgments as to a person's age. We see no justification to annul this practice which has existed for over twenty-five years, and whereby the rights of hundreds of persons have been determined.” (Dorfman v. A.G. (1950) 9 P.E. 203.) The omission of age from the list of “matters of personal status” in Article 51 of the Palestine Order in Council, 1922, did not concern the judges who dealt with the question, since apparently they instinctively identified age with minority and maturity, which although not mentioned in Article 51—which would appear to be numerus clausus—have always been indisputably regarded as purely matters of “status”. Two statutory provisions from the Mandatory period whereby the Courts were expressly directed how to deal with the determination of a person's age—the Religious Communities (Change) Ordinance, 1927, and the Juvenile Offenders Ordinance, 1937—should have been sufficient indication that for other purposes there were no limitations or special requirements applicable in the District Courts when determining a person's age; Cf. A.G. and the National Insurance Institute v. Mazan (1965) 19 P.D. (III) 32 at 40–41 where Kister J. was of the opinion that “it would be difficult to classify applications for determination of age otherwise than as matters of personal status”.

⁶ See inter alia Nahum v. A.G. (1960) 14 P.D. 145; Dahari v. A.G. and National Insurance Institute (1960) 49 P.E. 149; Mahler v. A.G. (1962) 16 P.D. 1926; Anabi v. A.G. and the National Insurance Institute (1965) (I) 19 P.D. 645. All these cases were based on the assumption that a person's age is a matter of status and that a judgment on a matter of age is a judgment in rem, binding universally.

⁷ Supra n. 6 at 154, 155.

⁸ Italics supplied. The Court was thus of the opinion that an applicant for a judgment determining age does not have to show the immediate specific purpose of his application. On the contrary, since it is a matter of status, it is a person's right to have his age determined by the Court so that he can make use of the resulting declaratory judgment for any purpose which may arise in the future.

⁹ Supra n. 6 at 149.

¹⁰ The marriage contract and testimony of witnesses.

¹¹ The Court here based itself on the rule in the English case of Thynne v. Thynne [1955] 3 All E.R. 129, according to which a judgment on a matter of personal status determines such status finally, and cannot be impugned.

¹² The same attitude was expressed again, more forcefully, by the Supreme Court in the case of Amrani v. A.G. and National Insurance Institute (1960) 49 P.E. 151. In that case, in which the question of age was dealt with extensively, it was laid down that the doctrine of res judicata applies to matters of personal status as it does to other matters; and also that “a decision on status can in other proceedings…even bind a third person who was not party to the previous litigation”.

¹³ Supra n. 6 at 1927–8.

¹⁴ Supra n. 6 at 648–9.

¹⁵ Another reason which the Court gave for its decision was that the Chief Magistrate was rightly not prepared “to rely on the Bulgarian judgment, because of the doubt as to the evidence before that Court, and particularly that one of the most important pieces of evidence was that of the plaintiff, to whom the Court below gave no credence. As far as the Israeli Court is concerned, the conclusions of that judgment are hearsay evidence, which in the circumstances may be considered as of doubtful value”. The Court was therefore of the opinion that the Magistrate must be taken to have found, for the reason stated, that it would not be “in the interests of justice” (in the sense of section 11 of the Foreign Judgments Enforcement Law, 1958) to recognize the validity of that judgment. As a result, the Court, sitting as a Court of Appeal, decided that it had no legal cause before it for interfering with the Magistrate's discretion in this matter, “just as the District Court was not justified in doing so either”.

It would appear that the expression “justice” was here extended far beyond its normal meaning. It is true that the question of a witness' credibility is a matter for the judge of first instance with whose finding a court of appeal will not interfere. But the reference to a foreign judgment is not a reference to the evidence on which it is based, but to the judgment as a whole as it stands. The admission of the appellant's evidence by the Bulgarian court was a matter for the discretion of that court, which an Israeli court cannot consider or criticize. It would be a different matter if other serious defects were alleged, e.g. that the judgment was tainted with fraud, or was contrary to natural justice. After all, section 11 requires that the court should find that the judgment should be recognized “in the interests of law and justice”. In this case, there would be no infringement of “justice” if the judgment were to be recognized. This is purely a matter of differences in evaluation of evidence and of the impression gained from a witness and his credibility, which may exist even between different judges of the same court in the same matter. Clearly these differences are not a matter of “justice”.

¹⁶ (1949) 2 P.D. 16, 28.

¹⁷ “A matter of dispute”—i.e., where the court is presented with two different versions as to the date of birth of the applicant, that of the applicant and that of the respondent (generally the representative of the State or one of its institutions), and has to decide which one to accept.

¹⁸ “In doubt”—where one side puts forward a certain date of birth as being the correct one, and the other side merely casts doubt on its accuracy without suggesting an alternative, and puts the claimant in the position of a person who has not proved his age, proof of which is essential for him to win his case—whether as plaintiff, defendant, applicant or respondent.

¹⁹ From this point of view, the name “Determination of Age Law” is inaccurate. It would have been more correct to use the term “Declaration of Age Law” as describing the activity of the court in cases concerning age.

²⁰ For an exhaustive survey of the main definitions of the concept of status, see the author's article “Bankruptcy—Personal Status?” Studies in Law in Memory of Abraham Rosenthal (Jerusalem, 1964) 432–439.

²¹ This refers of course to “status” in its legal sense, and not to the various extra-legal usages of the word.

²² Those which are indisputably matters of status, such as marriage, divorce, adoption, etc.

²³ It is interesting to note that even the concept “nuclear family” in modern sociology includes, inter alia, the following characteristics:

a) “it is based on marriage”,

b) the members of the family are connected with each other “by legal ties”.

This means that modern sociologists do not regard the legal nature of these relationships as a characteristic which is exterior to the relationship itself, but as an integral part thereof. See Eisenstadt, S. N. and Ben-David, Y.: Introduction to Sociology (1963) 74Google Scholar. See also Lévi-Strauss, C., “The Family”, in Man, Culture & Society (ed. Shapiro, H. L.) 261–286.Google Scholar

²⁴ Olshan, P. in State of Israel v. Pessler (1961) 161 P.D. 102.Google Scholar Incidentally, in this case Olshan P. and Cohn J. concluded that “reputed wife” is not a status.

²⁵ For this reason there would appear to be no contradiction with the view here stated, in, for instance, the institution of Common Law Marriage, in which the status of marriage is accorded in a situation similar to that of the reputed wife. For the fact that the aegis of the Common Law is required for such marriage to be recognized as such, as well as the legal requirements for a marriage to be recognized as a Common Law Marriage, strengthen the argument that for status to be brought about, to exist or to be abrogated, there must be the intervention of some law. See R. v. Millis (1844) 10 Cl & Fin. 534; Catterall v. Catterall (1847) 1 Rob. Ecc. 580; Wolfenden v. Wolfenden [1946] p. 61; Penhas v. Tan Soo Eng [1953] A.C. 304.

²⁶ See Levontin, A., Private International and Interreligious Law (ed. Mannheim, G.) (1964) 161–162.Google Scholar

²⁷ See Allen, C. K. (1930) 46 L.Q.R. 277, 294.Google Scholar

²⁸ Cf. Levontin, A., On Marriage and Divorce Performed Outside the State (1957) 2–3.Google Scholar

²⁹ Particularly well known in this connection is the minority judgment of Scott, L.J. in Re Luck's Settlement Trusts [1940] 1 Ch. 864Google Scholar where he said, inter alia, “Perhaps the most far-reaching characteristic of status is its quality of universality both in the general jurisprudence of other nations and in private international law as applied by English courts. The general principle of status is that when it is created by the law of one country, it is, or ought to be, judicially recognised as being the same everywhere, all the world over.”

³⁰ Suffice it to express my agreement with Prof. Graveson's view as expressed in the latest edition of his work on conflict of laws:

“But it would be surprising indeed to find English courts adhering without exception to any principle of universal dimensions.”

(Graveson, , The Conflict of Laws, 5th ed. 1965).Google ScholarCf. ViscountSimonds, in National Bank of Greece and Athens S.A. v. Metliss [1958] A.C. 509Google Scholar, at 525, where he expresses the view that recognition of a foreign status by the English courts is based on comity rather than on the alleged “universal” nature of status.

³¹ Although the standard unit of age is the year—and in that sense a person is, e.g., 25 years of age from the first day of his 25th year until the end of the last day thereof—there is also much importance, for various purposes and in various circumstances, to be attached to months and days and, at times, even to parts of days. Disputes as to days and hours are usual in litigation as to age, where a person may be regarded as of a different age as reckoned in days.

³² See e.g. section 1 of the Legal Capacity and Guardianship Law, 1962. This would appear to be no more than a formal declaration as to the existing legal position, which also existed long before this law came into effect, and exists in many other States even without express enactment.

³³ Cf. Ehrenzweig, A. A., Coniflct of Laws (1962) 40–41Google Scholar, who expresses the opinion, at least in respect of the United States, that “the need has never been felt, as it has in the case of associations, to invoke comity to the foreign sovereign in order to recognize the existence of an alien…”

³⁴ Anabi v. A.G. & Nat. Ins. Institute (1965) (I) 19 P.D. 648, and Halo v. Halo (1949) 2 P.D. 16, 28.

³⁵ Agranat P. in Anabi v. A.G., supra n. 34, at 648.

³⁶ The concept “personal status” as used here is quoted from Agranat P. in the above-mentioned cases.

³⁷ See A. Levontin, op. cit. 56–58.

³⁸ See Graveson, , Status in the Common Law (1953) 2.Google Scholar

³⁹ i.e. a person not proclaimed as legally incapable. For only such a proclamation can constitute a person as being of unsound mind from a legal point of view, just as the lack of such a proclamation is proof of legal sanity.

⁴⁰ The association of unsoundness of mind with minority and celibacy would appear to be justified, if the reference is to unsoundness which is given legal expression by appropriate means. Otherwise, such state is not a matter of status, but a natural state, akin to age.

⁴¹ See, e.g., sec. 8 of the Legal Capacity and Guardianship Law, 1962. It should be noted that minority and majority also lack the attribute of consent of the holder of the status, and in this respect are similar to age. Minority and majority should nevertheless be regarded as matters of status.