Jewish Law of Warranties: Some Comparative Aspects

1975 ◽  
Vol 10 (1) ◽  
pp. 102-130
Author(s):  
Irwin H. Haut

Aspects of Jewish Sales Law which may be referred to as the law of warranties are the subject of this article. Only the sale of personalty is dealt with and comparison is made with parallel developments in American Sales Law.The temptation to engage in extensive discussion of the sources of Jewish Law and of its nature and developments has been resisted and only some brief preliminary remarks concerning Jewish Law have been included but the interested reader is referred elsewhere for further discussion of these matters.Unlike the Common law, which developed on a case to case basis, Jewish law developed along several lines. Jewish law developed in part on a case to case basis as exemplified by Talmudic discussions and expositions; in part in an enormous and still growingResponsaliterature; and in the decisions of Rabbinical Courts throughout Jewish history. On the other hand, the development of Jewish law depended in great part on various Codes, the most important for our purposes being those of Maimonides, Asherides and Karo.

1902 ◽  
Vol 36 (5-6) ◽  
pp. 417-564 ◽  
Author(s):  
John Nicoll

The liability of the employer to compensate his employees, as well as other persons, for injuries sustained through his fault, may be traced from an early period in the world's history in the Common Law of various countries.For example, by the Jewish Law, said to have been promulgated about the year 1500 B.C., if a master were the means of causing the loss, either intentionally or unintentionally, of the eye or of the tooth of his slave, he was bound to let him go free for his eye or his tooth's sake. Again, according to the same law, if an employer allowed his ox to gore either his servant or a stranger, he was required to pay various compensations to the injured if he survived, or to his relatives in the event of the injury being followed by death.


Legal Studies ◽  
2009 ◽  
Vol 29 (3) ◽  
pp. 355-375 ◽  
Author(s):  
Kelvin FK Low

The late Professor Birks made an immense contribution to the study and development of the common law in devising his taxonomy, derived from the Roman classification of Justinian's Institutes. The utility of the taxonomy has always been the subject of controversy and its value has been increasingly questioned since his untimely death. Some of the criticisms are undoubtedly valid but it is seriously arguable that the pendulum has swung too far in the other direction. This paper seeks to highlight the common abuses of the taxonomy and demonstrate that, even taking account of its limitations, the taxonomy continues to be a useful device for our study and development of the common law.


Having discovered this fact, the defendant refused to deliver. A majority of the court held that the parties had contracted on the understanding that that the cow was incapable of breeding. Accordingly, there had been a mistake not merely as to quality, but as to the very nature of the thing sold. It was thought that there was as much difference between an ox and a cow as there was between the animal the plaintiff bought and the one which both parties believed to be the subject matter of the contract. The difficulty with Sherwood v Walker when compared with the reasoning employed in Bell v Lever Bros is that the former looks suspiciously like a case in which the court has rectified what amounts to little more than a bad bargain. One way of viewing the difference between Sherwood and Bell is that the cases reveal a policy conflict in the way different judges approach the issue of risk allocation. On the one hand, there is a market-individualist approach to cases of mistake which seeks to uphold the sanctity of contracts and will therefore result in only the smallest number of cases in which the courts will upset a bargain on the ground of a shared mistake. On the other hand, there are cases in which the courts are more prepared to consider notions of fairness and justice in determining whether a mistake invalidates an agreement. It is not surprising that this alternative approach has developed in equity rather than at common law, as a simple glance at the form of relief granted in each case reveals a substantial difference. The common law answer in cases of shared fundamental mistake is that the contract is void ab initio – the contract is treated as if it never existed. In contrast, the equitable solution is to order rescission of the contract, but on terms that attempt to do justice between the parties. Thus, it is possible in equity to order rescission of the contract but then to add a rider to the effect that there should be a renegotiation of the contract on terms which take account of the fact in respect of which the parties were mistaken. In Solle v Butcher, the defendant leased to the plaintiff a flat. Both parties believed that the relevant property was not covered by the provisions of the Rent Restriction Acts, with the result that the defendant could charge a rent of £250 per annum. However, it later transpired that the relevant legislation was applicable with the result that the maximum rent payable was only £140. Such a mistake would not have been operative at common law, but the court held that the contract was voidable in equity, provided there was a fundamental mistake and no fault on the part of the person seeking relief: Solle v Butcher [1950] 1 KB 671, CA, p 690

1995 ◽  
pp. 324-330

1979 ◽  
Vol 14 (1) ◽  
pp. 1-12 ◽  
Author(s):  
Denis Tallon

Law reform is now under consideration in most countries of the world and practically everywhere, the problem of the instruments of this reform arises: should the reform be carried out by the decisions of judges or by statute, and if by statute, must such law be codified?Common law countries are both attracted and at the same time frightened by codification. This may well be the situation here in Israel, where the common law tradition is still deeply rooted but where there is also a certain tradition in favour of codification.At any rate, the subject cannot be treated today as it would have been a century ago. The old controversies about the usefulness of codification in the abstract are out of fashion. In England, the fierce attacks of Jeremy Bentham against the common law—“dog law”—have had no influence on the development of English law. On the continent, Savigny and the German Historical School did not prevent the progressive codification of German law nor the adoption in the other countries throughout the nineteenth century of codes inspired by the French model.


2004 ◽  
Vol 32 (3) ◽  
pp. 337-355 ◽  
Author(s):  
Leslie Zines

This article originally was published as a Law and Policy Paper. The Law and Policy Papers series was established in 1994 by the Centre for International and Public Law in the Faculty of Law, the Australian National University. The series publishes papers contributing to understanding and discussion on matters relating to law and public policy, especially those that are the subject of contemporary debate. In 1999 the papers were published jointly by the Centre for International and Public Law and The Federation Press. This article is reproduced in the Federal Law Review with the permission of the original publishers.


Author(s):  
Justine Pila

This chapter considers the meaning of the terms that appropriately denote the subject matter protectable by registered trade mark and allied rights, including the common law action of passing off. Drawing on the earlier analyses of the objects protectable by patent and copyright, it defines the trade mark, designation of origin, and geographical indication in their current European and UK conception as hybrid inventions/works in the form of purpose-limited expressive objects. It also considers the relationship between the different requirements for trade mark and allied rights protection, and related principles of entitlement. In its conclusion, the legal understandings of trade mark and allied rights subject matter are presented as answers to the questions identified in Chapter 3 concerning the categories and essential properties of the subject matter in question, their method of individuation, and the relationship between and method of establishing their and their tokens’ existence.


1966 ◽  
Vol 1 (4) ◽  
pp. 562-579 ◽  
Author(s):  
A. M. Apelbom

Eighteen years after attaining independence Israel remains essentially a common law country. Introduced by the British Mandatory administration to supplement the Ottoman legislation in force at the time of the British occupation of Palestine, the common law has been retained by the Israeli legislator, so far as not modified or replaced by local legislation. But this common law, far from being residual only, also embraces a considerable body of interstitial law developed by two generations of judges, British, Palestinian and Israeli, in the process of applying and interpreting statute law—whether Ottoman, Mandatory or Israeli—according to common law methods. On the other hand the importation of common law institutions was neither wholesale nor systematic and in a number of fields no clear line of demarcation can be drawn between domestic and English law.


1832 ◽  
Vol 122 ◽  
pp. 539-574 ◽  

I have for some time entertained an opinion, in common with some others who have turned their attention tot he subject, that a good series of observations with a Water-Barometer, accurately constructed, might throw some light upon several important points of physical science: amongst others, upon the tides of the atmosphere; the horary oscillations of the counterpoising column; the ascending and descending rate of its greater oscillations; and the tension of vapour at different atmospheric temperatures. I have sought in vain in various scientific works, and in the Transactions of Philosophical Societies, for the record of any such observations, or for a description of an instrument calculated to afford the required information with anything approaching to precision. In the first volume of the History of the French Academy of Sciences, a cursory reference is made, in the following words, to some experiments of M. Mariotte upon the subject, of which no particulars appear to have been preserved. “Le même M. Mariotte fit aussi à l’observatoire des experiences sur le baromètre ordinaire à mercure comparé au baromètre à eau. Dans l’un le mercure s’eléva à 28 polices, et dans Fautre l’eau fut a 31 pieds Cequi donne le rapport du mercure à l’eau de 13½ à 1.” Histoire de I'Acadérmie, tom. i. p. 234. It also appears that Otto Guricke constructed a philosophical toy for the amusement of himself and friends, upon the principle of the water-barometer; but the column of water probably in this, as in all the other instances which I have met with, was raised by the imperfect rarefaction of the air in the tube above it, or by filling with water a metallic tube, of sufficient length, cemented to a glass one at its upper extremity, and fitted with a stop-cock at each end; so that when full the upper one might be closed and the lower opened, when the water would fall till it afforded an equipoise to the pressure of the atmo­sphere. The imperfections of such an instrument, it is quite clear, would render it totally unfit for the delicate investigations required in the present state of science; as, to render the observations of any value, it is absolutely necessary that the water should be thoroughly purged of air, by boiling, and its insinuation or reabsorption effectually guarded against. I was convinced that the only chance of securing these two necessary ends, was to form the whole length of tube of one piece of glass, and to boil the water in it, as is done with mercury in the common barometer. The practical difficulties which opposed themselves to such a construction long appeared to me insurmount­able; but I at length contrived a plan for the purpose, which, having been honoured with the approval of the late Meteorological Committee of this Society, was ordered to be carried into execution by the President and Council.


1971 ◽  
Vol 29 (1) ◽  
pp. 51-67 ◽  
Author(s):  
J. H. Baker

Slade's Case is of such significance in the history of the common law that it has, quite properly, been the subject of more scrutiny and discussion in recent years than any other case of the same age. The foundation of all this discussion has been Coke's report, which is the only full report in print. The accuracy and completeness of Coke's version have hardly been challenged, and the discussions have assumed that it contains almost all there is to know about the case. This assumption must be discarded if we are to understand the contemporary significance of the case.


Author(s):  
Tamlyn Lloyd ◽  
Haywood Marcus

One of the consequences of the common law principle that a director must avoid conflicts of interest was that a director could not have an interest in a transaction with the company unless he had disclosed all material facts about the interest to the members and they had approved or authorized his having the interest. Authorization by the board was not sufficient. If the other party to the transaction had notice of the irregularity, the company might rescind the contract. The director might also be liable for breach of duty and under a duty to account for profits obtained by reason of such dealings.


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