“Self-determination”, the famous catchword of World War I, has become one of the most potent political slogans of our time. In its name battles continue to be waged, and no continent—and scarcely any country—is immune from its grip. The use of force within the most recent period alone in such diverse places as Grenada, Lebanon, the Falkland Islands, Afghanistan, Chad, Angola, Namibia, Punjab, and Kampuchea was related in some way or other to the issue of self-determination. Within the UN, self-determination is viewed by the majority as a kind of “supernorm”, a principle which has been lifted from the realm of politics and morality to the very pinnacle of legal rules. According to this perspective, even the linchpin of the UN Charter, the principle prohibiting the threat or use of force in international relations (Art. 2, para. 4), may be overridden in the name of the more sacred “right of self-determination”.

A resolved to kill X and equipped himself for this purpose with a bottle containing poison. When X dined at A's house, A secretly poured some of the contents of the bottle into a drink that he offered X. X downed the drink but suffered no ill-effects since A's wife had, without his knowledge, poured away the poison and filled the bottle with water (first case).

B put his hand into Y's coat pocket in order to pick its contents. His fingers scoured the pocket and found it to be empty. Alternatively, B fired at an empty bed with intent to kill Y, who was supposed to be in it (second case).

Rescission is one of the most important activities in the law of contract. The right or the possibility to rescind is no less important than the right to specific performance or damages. Indeed, in many cases, when specific performance is either undesired or impossible, and no harm entitling damages has been caused, it will be the major right.

Despite this importance, Israeli contract laws have left many questions regarding rescission open (e.g. the character of the rescission, its range, contents and results regarding both contracting parties and third parties). The silence of the Israeli legislature in these matters is typical of Israeli civil law legislation in which major areas of law are condensed into a few laconic provisions. This attitude leaves much room for construction of the statute and for judicial legislation.

In our previous article we dealt with the definition of employee for income tax purposes. We concluded that in the present state of the law in Israel the courts are obliged to depart from the accepted definition of this term as applied in labour law and the law of torts and develop an independent functional test more suitable to tax law. We stressed that this conclusion was based on the existing law in Israel, namely the provisions on the Income Tax Ordinance, which treats taxpayers who are employees as a special category.

In the present article we wish to look at the problem from the broader perspective of the lex ferenda. Our remarks are addressed primarily to legislators and policy-makers, and not, as the previous article, to the courts and the tax ordinance commentators.

The prestigious American Law Institute is in the process of promulgating a revised Restatement of the Foreign Relations Law of the United States. The present Restatement on the subject was adopted in 1962 and finally promulgated with revisions in 1965. Work on a revised restatement began in the late 1970s and the first tentative draft was submitted to the Institute in 1980. Thus far, five tentative drafts have been presented to the members of the Institute for their consideration and the Restatement as a whole is scheduled for consideration by the members of the Institute at its annual meeting in May 1985.

The American Law Institute is a private organization of jurists, not a legislative body, and the Restatements are not official codifications. However, since the Institute membership includes some of the most noted scholars, judges and practitioners in the United States, the Restatements carry great weight and are often cited by United States courts in their decisions.