The title of my address promises more than I can keep. As a precaution, I should at least add a question mark to this title, because I want to discuss whether there are any noteworthy recent developments in international sales law at all, and whether or not they are desirable. By “international sales law”, I understand Uniform Sales Law which is international for three reasons: first, because it applies to international sales; second, because it is in force in several countries; and finally, because it has been worked out “internationally”, i.e. by lawyers from diverse legal backgrounds. What I am talking about, therefore, is Uniform Sales Law within the meaning of the Hague Uniform Laws on International Sales—which are in operation also in Israel—as well as the Sales Convention which was passed at a diplomatic conference in Vienna in 1980. As to developments I would like to give a short overview of the reception the Hague Uniform Sales Law has received in Germany.

If an English lawyer looks at modern American literature on civil procedure, his first reaction tends to be one of incredulity or incomprehension; the literature deals with subjects of which he has never heard and seeks solutions to questions he has never thought of asking. After some reflection, however, it probably dawns on him that American scholars are writing against a background of assumptions about the process of litigation which he does not share and that those assumptions stem from developments which have occurred in the United States but which have not yet occurred in England or, for that matter, in the other countries of Western Europe. No one in England could write an article such as I received recently from the United States on “Conflict and Dissent in Class Actions” for the simple reason that the class action as it exists in the United States has not yet developed on our side of the Atlantic. Nevertheless, it is now clear that new demands are being made in Europe on the process of litigation, demands which may in time lead to developments such as have already occurred in the United States, and it is these demands which lead to the dilemmas to which my title refers. I want, therefore, to draw attention to two such demands—both very broadly stated—and to the dilemmas they produce, limiting myself mainly to England but with occasional glances elsewhere. This is not a lecture on American law, but it could perhaps be described as one on “pre-American” law.

As 1984 approaches, Orwell's vision throws its forward shadow over our perception of our situation. No one ever doubted that law could be made an instrument of tyranny. But there are aspects of 1984 which prompt us to ask whether even the concept of law does not itself constitute a social problem, specifically a deprivation of certain freedoms which in other contexts we value. I shall not be concerned with the extent to which the content of particular legal systems tyrannise their subjects. Rather, my concern is with the ways in which law, by virtue of its formal nature, deprives the subjects of a legal system of freedom. So considered, there are two quite distinct accusations of tyranny which may be levelled at the law: one is so-called “legalism”, which may be regarded as a tyranny of the (intellectual) right; the other is existentialism, viewed as a tyranny of the (intellectual) left. I shall suggest that these two tyrannies in fact represent extreme points on a single spectrum, and that this spectrum may be observed not only in the operation of legal systems, but also in legal philosophy and indeed in theology. In fact, the parallels between legal philosophy and theology may be taken to reflect different (but not historically unrelated) modes of address of the same basic issue in the history of ideas.

In an article published in this journal in 1973, Professor George P. Fletcher maintained that there ought to be no limitation of proportionality on the exercise of self-defense. The requirement of proportionality signifies that there is a limit to the price society is willing or agreeable to pay for the protection of a legitimate interest against an unlawful attack. The right to use self-defense therefore rests upon the condition that there be some kind of relationship, which is not one of equivalence, between the interest attacked and that sacrificed in order to save it. In the absence of such a relationship, self-defense may not be employed. Thus, for example, in the case of a petty theft, if the interest attacked (ownership or possession of the property) can be defended only by inflicting serious injury—death or grievous bodily harm—upon the aggressor, one must refrain from doing so, even if this means sacrificing the interest at stake. If self-defense is not circumscribed by the requirement of proportionality, then the owner of an apple orchard who shoots and kills a thief, lacking any other means of stopping him from running off with the fruit he has stolen, will bear no criminal responsibility for his act.

In connection with section 27 of the Contracts (General Part) Law of 1973, Prof. D. Friedmann has dealt with the nature of the conditional contract. In his view a conditional contract is complete, valid and effective, and only differs from an absolute binding contract in its contents.

One reason for that he finds in the fact that section 27 does not appear in Chapter One of the Law, which treats of the making of a contract, or in Chapter Two, that deals with avoidance of a contract because of a defect in its making, but in Chapter Three, that is concerned with the form and contents of a contract.

To make a contract subject to a condition is certainly not a defect in its making. But the location of section 27 does not of itself yield any of Prof. Friedmann's conclusions. Chapter Three covers contracts which are illegal and therefore invalid (section 30, a propos illegal or immoral contracts, or contracts contrary to public policy) or are at all events void (contracts lacking form ad substantiam, falling within section 23) or contracts that are not enforceable by specific performance or actionable in damages (gaming, betting and lottery contracts, under section 32) or are unjusticiable (contracts for giving marks and the like, regulated by section 33).

In the Secret Monitoring Law, 5739–1979, the Israeli legislature enacted special protection of an individual's right to privacy with respect to his conversations. The Law prohibits:

a) the secret monitoring of a person's conversation without lawful authority,

b) knowingly using, without lawful authority, any information of the contents of any conversation obtained by secret monitoring, or knowingly disclosing any such information or the contents of any such conversation to a person not authorized to receive it.

The legislature, however, grants to certain investigative authorities (The Security Service and the Police Force) the right to conduct secret monitoring pursuant to certain statutory provisions. The legislature provided for this exception to the general prohibition whenever monitoring is deemed essential for reasons of state security, or in order to prevent offences or to detect offenders.

Israeli family law is essentially governed by the personal law of the parties concerned since the religious affiliation of the litigants forms the basis for determination of the applicable personal law. This phenomenon is historically rooted in the milet (religious communities) system practised in the Ottoman Empire, which included Palestine until 1917. Ottoman law, regarding itself as an integral part of Moslem law, adopted the fundamental Islamic notion that its law applied to the “faithful” alone. Hence the judicial autonomy extended to “non-believers”, especially the Jewish and Christian communities. These were subject to their own ecclesiastical courts, administered and supervised by their respective religious heads and authorities. In the second half of the 19th century, with the development of contemporary legal systems, the Ottoman legal system underwent a transition from a personal law to a uniform territorial law in most legal fields. The jurisdiction of the ecclesiastical courts, Moslem as well as Jewish and Christian, was restricted to purely religious and family matters. The British Mandate, which in 1917 replaced the Ottoman rule in Palestine, principally retained the existing legal order under which the ecclesiastical courts of the respective religious communities were invested with exclusive jurisdiction in matters of marriage and divorce as well as other matters of personal status.

It is known to lawyers in this country, and no news to those who deal with public law or are concerned with the drafting of legislation, that the legislative and the judicial branches of government are engaged in a continuous dialogue. The role of the courts in the dialogue consists of interpreting statutes to be applied by them, while the legislator at times enters into discussion with the Judiciary by reacting to a court decision through legislative action. It is these phenomena in the field of legislation, occurring as reactions to decisions of the courts, which will be briefly considered in the present article.

The determination of the legislative power to act in reply to a judgment of a court may be based on a number of different reasons. One possible reason is that the court expressed an unfavorable opinion upon the contents of a statute and the legislator, in response to the criticism of the judges, amends the statute in order to do away with the imperfections revealed by the court.

The English Bills of Exchange Act—which is the source of legislation on negotiable instruments in most of the countries formerly connected with the British Commonwealth of Nations, including Israel's Bills of Exchange Ordinance—has been described as “the best drafted Act of Parliament ever passed. That explains why most of the problems which have come before the courts have been resolved within the strict framework of the law, through the application of one or another of the provisions of that Act. Those provisions can be regarded as amply covering the common commercial situations with which the world of finance is today familiar. This state of affairs has clear advantages; but, at the same time, it has its negative consequences too. Since the enactment of the Act in 1882, the courts—and, following in their footsteps, a majority of legal scholars—in the common law countries have ceased to give any thought to the theoretical nature of the negotiable instrument.

The law's treatment of abortion has undergone a fundamental transformation in the present century which has been marked by a clear trend towards decriminalization of the matter vis-à-vis the abortionist and the woman. The increasing secularization of society, the advance of libertarian thinking in western democracies and the movement towards social equality for women has increasingly led to the view that the abortion decision is one which properly belongs to the private realm of the individual woman. This view has been reinforced by utilitarian arguments founded on acknowledgement of the fact that the criminal prohibition has always been evaded by a resort to illegal procedures with all the danger to the woman's health that this entails.

Despite religious and moral objections based on the interest in protecting fetal life, the law has responded to pressures for the legitimization of abortion in varying degrees. In some countries abortion has been totally decriminalized and indeed made available on demand; in others decriminalization has been only partial and abortion allowed only upon a showing of cause defined by statute (abortion on cause) or only at certain stages of pregnancy.

On the whole, the law has remained silent as to the status of the father in the abortion decision; in any event he was not subject to any criminal sanction.

In the Spring of 1977, Prof. Shalev Ginossar published a brief but highly important article, “The Law's Delay”, in which he advocated, inter alia, simplifying the Israeli judicial structure by combining the various courts into one.

In July 1979, the then Minister of Justice, Mr. Shmuel Tamir, appointed a select committee headed by Justice Moshe Landau, then Deputy President of the Israeli Supreme Court, and soon to become its President, which was charged with studying the structure and jurisdictions of the Israeli court system, with the aim of recommending significant changes. Among the witnesses who appeared before this Committee was Prof. Ginossar, himself, and there was reason to believe that the Committee might recommend adopting some of the basic changes in the Israeli court structure that Prof. Ginossar advovcated.

In its desire to reduce the loss and expense involved in the occurrence of accidents, organized society is likely to consider various factors determining the nature of the rules (whether legal or other) that will guide it in its decision. These factors may include moral fault (in the accepted meaning of the term), economic fault or the relative wealth of the parties involved in causing the loss.

The purpose of this article is to examine the third factor, ie‥ relative wealth. By “relative wealth of the parties” we mean the quantity of property of monetary value in the hands of each of the parties relative to the aggregate property of the other parties and to the property of each. The parties in question are not necessarily those physically involved in causing the damage but those persons or groups which the rules for allocation of loss regard as potential bearers of the loss.