CONFLICT OF LAWS


CONFLICT OF LAWS (also called Private International Law) is a branch of the law dealing with the adjudication of a matter which involves some foreign element, for instance, the fact that one of the parties is a foreign citizen, or that the matter at issue arose, wholly or in part, in another country – as in the case of a contract signed in one country and breached in another – and the like. Where there is a conflict of laws, two main questions arise: does the forum in question have jurisdiction to deal with the matter; if it has jurisdiction, what law shall be chosen to apply to the matter? The choice of laws available to the forum include the following main possibilities: (1) The personal law (lex personalis) by which the plaintiff or defendant is governed; the personal law may be determined either by the law of the party's place of domicile (lex domicilii) or by his national law (lex ligeantiae); (2) the law of the place where obligation was established, for instance, the place where the contract was concluded (lex actus; lex loci contractus); (3) the law of the place where the legal act is to be carried out, for instance, the fulfillment of a contract (lex loci solutionis); (4) the law of the place of situation of the property forming the subject matter of the dispute (lex situs); (5) the law of the place of situation of the forum seized of the dispute (lex fori). (See A.V. Dicey and J.H.C. Morris, 1967/8.)

This entry is arranged according to the following outline:

In Jewish Law

The subject of the conflict of laws is not a defined branch of Jewish law. This is attributable to a substantive quality of Jewish law, namely that it is a personal law purporting to apply to each and every Jew, wherever he may be – even if outside the territorial bounds of Jewish sovereignty or autonomy. For this reason the mere fact that a contract is concluded in one country but is to be fulfilled in another is of no consequence in Jewish law. Moreover, Jewish law – for the substantially greater part of its history – has functioned as a legal system generally enjoying Jewish judicial autonomy but not Jewish political sovereignty (see *Mishpat Ivri); the result has been that in suits before the Jewish courts both parties have usually been Jews, with little occasion for questions of conflict of laws to arise in relation to the personalities of the litigants (although there are isolated halakhot in this regard; see below).

Nevertheless, the fundamental problems that arise in the field of the conflict of laws occur also in Jewish law, in which they derive from two material phenomena of this legal system. One is the multiplicity of diverse customs in regard to the same subject, a fact expressed in the doctrine, "all is in accordance with the custom of the country" (ha-kol lefi minhag ha-medinah; see below). This multiplicity was already in evidence in talmudic times and became increasingly pronounced from the 10th century onward, when in the different centers of Jewish life hegemony was no longer exercised by a single center over the whole Diaspora, thus leading to the enactment of numerous local ordinances (see *Takkanot, especially Takkanot ha-Kahal), to the spread of new *customs, and to much local decision (see Mishpat Ivri). The natural outcome of this phenomenon was the problem of choosing between the different laws, for instance, when the matter at issue arose partly in one place and partly in another, not between Jewish law and other law, but between diverse customs and takkanot within the Jewish legal system. The second phenomenon which brought about the problem of conflict of laws in Jewish law has been the contact between Jewish law and secular law; from this contact there evolved the doctrine of *dina de-malkhuta dina ("the law of the land is law"), and pursuant to it the creation of a number of rules pertaining to the field of the conflict of laws.

Multiplicity of Legal Rules

The existence of varying rules deriving from different customs and takkanot on a particular legal subject is to be found in various fields of the law. Wherever this reality exists and the various stages of a legal obligation have to be fulfilled in different places where varying rules are practiced in regard to such obligation, the question arises whether to apply to the obligation, the law that is customary at the place and time of its establishment, or that which is customary at the place and time of its fulfillment, or any other law.

CONCERNING THE LAWS OF MARRIAGEG

Even in ancient times varying local customs had evolved and were practiced concerning the pecuniary relations between spouses. In regard to the amount of *dowry, R. Simeon b. Gamaliel adopted the rule of "all in accordance with the custom of the country" (Ket. 6:4), and the halakhah, with reference to both the ketubbah and the dowry, was determined as follows: "a marriage without condition is transacted in accordance with the custom of the country; also the wife who has agreed to contribute (i.e., a dowry to her husband) must do so in accordance with the custom of the country, and when she comes to recover her ketubbah she recovers what is contained therein in accordance with the custom of the country; in all these and similar matters the custom of the country is an important principle and must be followed, but such custom must be widespread throughout the country" (Yad, Ishut 23:12; Sh. Ar., EH 66:11). Thus there were different customs concerning a widow's right to lodging and *maintenance from the estate; the custom in Jerusalem and Galilee was to make the continuation of this right a matter of the widow's choice, and only if she preferred to claim her ketubbah would her right to maintenance and lodging become forfeited; in Judea the custom was to leave the choice with the deceased's heirs, and if they offered to pay the widow's ketubbah, she would forfeit the right to maintenance and lodging (Ket. 4:12); the people of Babylonia and environs followed the custom of the Judeans, and those of Nehardea and environs followed the custom of the Jerusalemites and Galileans (Ket. 54a).

This diversity of custom created problems relating to the conflict of laws. In the case of a woman of Mahoza (in Babylonia) who was married to a man from the area of Nehardea, it was decided that she was governed by the law as customary in Nehardea, i.e., that the deceased's heirs could not deprive her of her rights by paying her ketubbah as mentioned (Ket. 54a). In a case in the 13th century, husband and wife were from separate towns and married in a third town; in each of the three places different customs prevailed concerning the financial obligations between spouses. Since the latter had not themselves defined these in the ketubbah, Solomon b. Abraham Adret decided that the custom to be followed in their case was that of the place of celebration of the marriage, if that was where they intended to live, otherwise the custom of the place where they intended to live; if they had not decided on the place of residence, the custom at the place where the husband was resident was to be followed, since in law the husband determines the place of residence (Tosef., Ket. 13:2; Ket. 110a–b) – "for he marries in accordance with the conditions at his own place of residence, whereto he takes her" (Resp. Rashba, vol. 1, no. 662 and cf. vol. 3, no. 433). The same conclusion was reached by other scholars on the basis of the talmudic rule concerning the woman of Mahoza who married a man from Nehardea (Nov. Ritba, Ket. 54a; see also Beit Yosef EH 66, toward the concl.; Resp. Maharashdam, ḤM no. 327) and thus the halakhah was decided – "if a person married a woman from a certain place with the intention that she live with him at his place, the custom of his place is to be followed" (Rema to EH 66:12). In a 17th century decision it was determined that since the amount of the ketubbah was 500 gold coins in Lithuania and 400 gold coins in Poland, "the custom of the place of marriage is not followed but only that of the place of domicile" (Helkat Mehokek 66, n. 46 and Beit Shemu'el 66, n. 27); moreover, the customary law of their chosen *domicile was held to be applicable to the parties even if they had agreed that they would settle there two or three years after their marriage (ibid., 66, n. 46), and opinions were divided on the question whether to follow the custom of the place of marriage or that of the place of intended domicile in the event that the husband died before their having settled in the latter place (ibid.; Beit Shemu'el, 66, n. 27).

Some scholars held the opinion that the customary law of the place of celebration of the marriage governs the financial obligations between spouses: "a matter must be dealt with only according to [the law of] the place where the ketubbah was written, the husband having only undertaken liability therefore in accordance with the law of such place" (Resp. Ribash, no. 105). It was similarly decided in regard to differing customs deriving from the different communal takkanot relating to heritage of the dowry on the wife's death: "in all places local custom is followed, and even if they did not stipulate at the time of marriage, they are considered to have done so, for everyone who marries does so in accordance with the custom; even if he went to a place where the custom of the communities is not practiced, the law of the place where he married her is followed" (Rema to EH 118:19, based on Resp. Ribash, no. 105). Clearly, if the parties expressly stipulated that the custom of the husband's place of residence be followed, their position would be governed accordingly (see Helkat Mehokek to EH 118:19 and Beit Shemu'el, 118 n. 26, in which manner the apparent contradiction between Isserles' statements, here and in EH 66:12, is reconciled).

A dispute waged between prominent 16th-century scholars centered around the claim of Hannah Gracia Mendes – one of the *anusim (Marranos) from Portugal who had reached Turkey, where they openly reembraced Judaism – for half of her husband's estate, in accordance with the custom in Portugal, the place of celebration of the marriage. The dispute concerned the validity of an undertaking made at the time of marriage which was not celebrated in accordance with Jewish law; otherwise, however, all agreed that she was entitled to succeed in her claim in accordance with the law in practice in Portugal even if this was not the law in Turkey where the hearing took place (Avkat Rokhel, nos. 80–81; Resp. Maharashdam, ḤM no. 327; Resp. Maharibal 2:23; see also Civil Appeal 100/49, in Pesakim shel Beit ha-Mishpat ha-Elyon, 6 (1951/52), 140ff.). In Israel the rabbinical court has accepted the opinion of the scholars who held that the law of the place of celebration of the marriage must be applied – even if on the basis of halakhah the marriage is invalid. In the case of a Jewish couple who had emigrated from Russia, having been married in Russia in a *civil marriage ceremony only, in 1942, and were seeking a divorce before the above court, it decided that their common property should be divided in accordance with the law in practice in Russia in 1942 regarding the division of property between separated spouses (PDR 5:124ff.; see M. Elon, Hakikah Datit (1968), 169–72).

Some of the scholars dealing with the Mendes matter (see above) determined, as a matter of principle, that all contracts and acquisitions of property (kinyanim; see *Contract and *Acquisition), made among the Marranos themselves, in accordance with the general law of their land, were to have legal validity, even after the Marranos' open return to Judaism. One of the reasons advanced for this far-reaching determination was the fact of the Marranos' interest, for the sake of proper order in business matters, in ensuring that all their commercial and economic transactions have full legal validity – "and this is as a fixed custom among them, overriding the halakhah" (Mabit, in Avkat Rokhel, no. 80; see also *Minhag). Of particular interest is a reason advanced by Samuel de Modena, paralleling one of the general principles in the field of the conflict of laws: "for if it were otherwise, none of the anusim who came from there [from Portugal and Spain to Turkey] would be able to live; if the transactions they had with each other there in accordance with local custom but not according to the law of the Torah, were now reopened; this is plainly inconceivable; as regards everything that was done there, we must say: what is done is done, from now on a new reckoning" (Resp. Maharashdam, ḤM no. 327).

CONCERNING THE LAWS OF DIVORCE

An illustration of the conflict of laws in the above field, arising in Spain in the 13th century in regard to a takkanah prohibiting the divorce of a wife against her will, is to be found in the responsa collection of Solomon b. Adret (vol. 4, no. 186). At that time this takkanah was not followed everywhere in Spain, and the question arose whether a wife could be divorced against her will in the event that the takkanah was in force at the place of celebration of their marriage but not at the place to which they later moved – where the divorce proceedings were taking place – Solomon b. Adret replied: "for anyone marrying at a place where a wife cannot be divorced except with her consent is so bound, and he marries her in the knowledge that he cannot divorce her except with her consent … and even if he takes her away from the place of their marriage … to another place, he may not divorce her except in accordance with the custom of the place of their marriage."

CONCERNING LABOR LAW

In this field, too, there evolved different local customs, and the rule, "all in accordance with the custom of the country," (BM 7:1) was applied with particular reliance on the principle that "custom overrides the halakhah" (TJ, BM 7:1; see also *Minhag). This diversity naturally led to cases of conflicting laws. The Mishnah records that there were places where it was customary for laborers to go to work early in the morning and return late in the evening, while in other places they did not set out so early or return so late (BM 7:1). In the Jerusalem Talmud it is stated that it was not customary for the people of Tiberias to start early and finish late, but this was the case with the people of Beth-Maon; it was stipulated that residents of Tiberias hired as laborers in Beth-Maon must act in accordance with the custom in Beth-Maon and laborers from Beth-Maon hired in Tiberias must act in accordance with the custom in Tiberias – i.e., that the determining law is the law of the place of fulfillment of the obligation; nevertheless, if an employer from Tiberias should hire in Beth-Maon laborers to work in Tiberias, they must start early and finish late according to the custom in Beth-Maon because the fact that the employer does not hire laborers in Tiberias, but comes specially to Beth-Maon for this purpose, proves his intention to find laborers who will start early and finish late, and it is as if he expressly agreed to such effect (TJ, BM 7:1).

CONCERNING THE LAWS OF ARTNERSHIP, LAND TENANCY ARISUT ETC.

Instances of differing and conflicting customs are mentioned also in fields of the civil law such as partnership (BB 1:1, 2), lease, and land tenancy in return for a share of the crop (arisut; BM 9:1), etc. (see *Lease and Hire). In these cases too it was laid down that the custom of the place where the obligation is established must be followed (Resp. Rashba, vol. 1, no. 662). Of interest is the conflict of laws principle laid down in a responsum of Simeon b. Ẓemaḥ Duran, 14th-century scholar of North Africa, in relation to a business partnership (Tashbeẓ 2:226). A dispute between one partner and the others concerning distribution of the partnership profits was brought before "a certain merchant who adjudicated between them," i.e., a lay judge adjudicating in accordance with the trade custom and not Jewish law. In an appeal before Duran against this decision, Duran held that the merchant's judgment did not conform with that required to be given in accordance with Jewish law; the contention of the partners who succeeded in the first instance, that the matter was originally brought before a merchant-judge in accordance with the local trade custom and that his decision was binding on the parties, was answered by Duran to this effect: the custom in question, although followed in the locality where the partners then found themselves, was not in existence at the place where the partnership was established, hence the local custom of the former place, i.e., the place of operation of the partnership, was not to be applied to their case, but the matter had to be dealt with in accordance with the custom at the place of establishment of the partnership.

Conflict of a Factual-Legal Nature

A conflict of laws, in the wider sense of the term, may arise not only when there are in operation divergent legal methods at the various stages of an obligation, but also when there exists, at these various stages, a divergence of legal facts.

CONCERNING BONDS OF INDEBTEDNESS

When a bond specifies a particular currency which is in circulation in two countries, but its value is greater in one country than in the other, the rule is that the amount stated is payable in accordance with the value of the currency in the country where the bond was drawn up and not its value in the country where the bond is presented for payment: "When a person seeks to recover payment of a bond from his neighbor, then, if it is recorded as having been written in Babylonia – he recovers in Babylonian currency; if in Ereẓ Israel, he recovers in the currency of Ereẓ Israel; if there is no qualification in the bond, then, if he seeks to recover in Babylonia – he recovers in Babylonian currency, and if he seeks to recover in Ereẓ Israel – he recovers in the currency of Ereẓ Israel" (Tosef., Ket. 13 (12):3 and BB 11:3; according to the version in Ket. 110b; Yad, Malveh 17:9; Sh. Ar., ḤM 42:14). The posekim were divided based on the reasoning for the second part of the above rule; some of them expressed the opinion that the bond is recovered according to the currency value at the place where the bond is presented for payment, because it is presumed that the bond was drawn up at the place where it is presented for payment; but if the presumption is rebutted, by proof that the bond was drawn up elsewhere, it will be payable according to the currency value at the latter place (Yad and Sh. Ar., loc. cit.; Sefer ha-Terumot 54:1); other posekim explained the rule on the basis that in the circumstances in question, the parties intentionally omit any mention in the bond of the place where it is drawn up in order that the amount be payable according to the currency value at the place where the bond shall be presented for payment, and, according to this explanation, the currency value will always be as determined at the place of presentation of the bond for payment (Ran to Alfasi, end of Ketubbot; pupils of R. Jonah, in Shitah Mekubbezet, Ket. 110b; Nov. Ritba Ket. 110b; see also Kesef Mishneh Malveh 17:9; Rema ḤM 42:14 and Siftei Kohen thereto, n. 34).

CONCERNING THE KETUBBAH

A similar problem was discussed in relation to payment of the amount specified in the ketubbah, in a case where the parties had married in Ereẓ Israel and were being divorced in Cappadocia (a country in Asia Minor which was famous for its coin mint – see S. Lieberman, Tosefta ki-Feshutta, 6 (1967), 389), and the same currency was in circulation in both countries, although at different values (Ket. 13:11; see also Tosef., Ket. 110b and BB 11:3). The scholars who differed from R. Simeon b. Gamaliel were of the opinion that the ketubbah and a bond of indebtedness were subject to different rules (Ket. 13:11). In regard to the substance of the difference, the opinions stated in the Jerusalem Talmud differ from those in the Babylonian Talmud. According to the former, the value of the currency was higher in Ereẓ Israel than in Cappadocia, and in respect of the ketubbah – a right of the wife flowing from the Torah, according to these scholars – the scholars were always careful to see that it was received by the wife according to the higher value, i.e., according to the value in Ereẓ Israel, even if the marriage took place in Cappadocia (TJ, Ket. 13:11). In the Babylonian Talmud it is held that the currency value was lower in Ereẓ Israel than in Cappadocia, and as far as concerned the ketubbah – in the opinion of these scholars a right given the wife by rabbinic enactment and not law (see *Oral Law and Written Law (*Torah)) – it was more leniently regarded by the scholars than any other bond of indebtedness, and therefore it was held to be payable in accordance with the currency in Ereẓ Israel, i.e., according to the lower value, even if the marriage took place in Cappadocia (Ket. 110b). R. Simeon's opinion, according to both Talmuds, was that the ketubbah was subject to the same law as any other bond of indebtedness (according to the Babylonian Talmud because in his view the ketubbah was an obligation of biblical law; according to the Jerusalem Talmud because it was an obligation of rabbinical law), and it was always necessary to pay according to the currency value at the place of establishment of the obligation, i.e., the place where the marriage took place.

It may be noted that the same problem was discussed in principle in relation to other halakhic matters. Thus it was established that a person transporting – other than in Jerusalem – second tithe fruits from a cheaper to a more expensive area, or vice versa, had to redeem the fruits according to their value at the place of redemption and not as valued at the place from which they were brought (Ma'as. Sh. 4:1; see also Ned. 8:4 in TB and TJ; see also *Domicile). For the validity of documents drawn up in non-Jewish courts, see *Shetar.

Jewish and Non-Jewish Parties to the Same Suit

According to a baraita of the talmudic law, if in a suit between a Jew and a gentile, before a Jewish court, there exists the possibility of favoring the Jew either according to the general law or according to the Jewish law, then this should be done by the court (BK 113a; cf. Sif. Deut. 16; Yad, Melakhim 10:12). This halakhah is quoted in the Talmud in the context of heavy and arbitrary tax quotas imposed on the Jews (see *Taxation); it is also to be understood as a reciprocal measure, i.e., as a reaction to the unequal treatment afforded Jews in the gentile courts (in like manner to the halakhah in BK 4:3, see BK 38a – "because they did not take upon themselves the seven *Noachide laws"; see also Albeck and other commentators to the Mishnah and Gemara, loc. cit.). Thus in the 13th century it was laid down that "at any rate this [the foregoing] was not said in regard to those who follow a defined religious faith; if they come before us to be adjudged, their way shall not be barred in the slightest manner, but the law shall cleave the mountain, whether in his favor or against him" (i.e., whether in favor of the Jewish or gentile party – Beit ha-Behirah BK 38a; and this is also the interpretation given in other similar cases: Beit ha-Behirah BK 37b–38a and Av. Zar., 3a, 6b, 22a, 26a). This talmudic halakhah is still quoted in Maimonides' Mishneh Torah but in the later Codes, such as the Arba'ah Turim and the Shulhan Arukh it is not mentioned at all. The very discussion of this halakhah ceased to be of any practical significance since the non-Jewish party was not subject to the jurisdiction of the Jewish courts and acted in accordance with the general law (in many places the central government would appoint a special judge to deal with suits between Jews and non-Jews; see, e.g., Baer, Spain, 1 (1961), 51, 83, 87, 115, 131, 310; 2 (1966), 66; Beit Yisrael be-Polin, ed. by I. Heilprin, 1 (1948), 58f.).

From various talmudic halakhot it may be deduced that in a legal transaction involving both a Jewish and a non-Jewish party, the latter acted in accordance with the foreign law – a fact that was calculated, in certain cases, to influence the manner in which the issue was decided. Thus the following problem is discussed in the Talmud: the debtor dies leaving *orphans; thereupon the surety pays the creditor before notifying the orphans of the fact of payment and then seeks to recoup this payment from the orphans (see *Suretyship). The surety's haste in paying the debt without prior approach to the orphans arouses suspicion of a conspiracy, i.e., the possibility that the debtor had paid the debt before he died in order to avoid a claim against the orphans, and that the surety and creditor conspired to recover the debt a second time, from the orphans, so as to share the money (BB 174b). In the course of the talmudic discussion the opinion is expressed that the above-mentioned suspicion only arises in the event that the creditor is a Jew, for the reason that in Jewish law the creditor must first have recourse to the debtor – hence the debtor's fear that the creditor might have recourse to the orphans and his decision to forestall this possibility by paying the debt; however, in the case of a non-Jewish creditor, there would be no reason to suspect that the debtor paid the debt during his lifetime, since according to Persian law, to which the creditor was subject, the latter might have direct recourse to the surety, and the debtor would know that the creditor was going to do so and not have recourse to the orphans (BB 174b; the contrary opinion expressed here also takes cognizance of the fact that in Persian law the creditor may claim directly from the surety). Hence it was decided, in Spain in the 14th century, that when the law applicable to the non-Jewish creditor is identical to Jewish law, the case of the latter will be no different from that of a Jewish creditor (Maggid Mishneh Malveh 26:6). Also recorded is the case of a non-Jew who hypothecated his courtyard to a Jew, which he then sold to a Jew (see BM 73b; Yad, Malveh 7:6; Sh. Ar., YD 172:5).

Conflict of Laws: Principles Where the Foreign Law Is Applicable

From application of the doctrine of dina de-malkhuta dina, rules are often derived (see above) which may serve as guiding principles in the field of the conflict of laws, of which the following two examples may be noted.

DISTINGUISHING BETWEEN MATERIAL AND PROCEDURAL LAW

Elijah b. Ḥayyim, head of the Constantinople rabbis at the end of the 16th century, determined that even in the case where Jewish law is subject, by virtue of the doctrine of dina de-malkhuta dina, to the foreign law, it is subject only to the material and not the procedural part of such law; hence the laws of evidence are always to be applied in accordance with Jewish law – i.e., the lex fori, which is the intrinsic law absorbing the foreign law. The case under discussion (Resp. Ranahno. 58) concerned the question of *imprisonment for debt. Elijah b. Ḥayyim held that even on the assumption that the doctrine of dina de malkhuta dina was applicable (according to the accepted view, this could not have been the case since the question of personal freedom is a matter of the ritual law (issur ve-hetter) to which the doctrine is not applicable), only the material provision of the law of the land was to be applied, i.e., the provision that a defaulting debtor was to be imprisoned if he had the means to pay, but not otherwise; however, the mode of inquiry into, and proof of, the debtor's financial position had to accord with Jewish law. Hence Elijah b. Ḥayyim concluded that in a case where it was not satisfactorily proved, in accordance with the foreign law, that the debtor lacked the means of paying this debt, but according to the rules of evidence in Jewish law, there was adequate proof of the debtor's lack of means to make payment, then the debtor was to be treated as such and could not be imprisoned (see M. Elon, Ḥerut ha-Perat (1964), 164 n. 200).

LEX DOMICILII AS OPPOSED TO LEX SITUS

The validity of a *will executed by a Marrano Jew in Majorca was the subject of a dispute between two 14th-century halakhic scholars, Isaac b. Sheshet Perfet and Simeon b. Ẓemaḥ Duran (Resp. Ribash nos. 46–52; Tashbeẓ 1:58–61). The testator bequeathed his estate to his daughters on condition that the estate pass to his wife on their death. When the daughters died, the civil court decided that the estate was to pass to the testator's widow in accordance with the will, and called on all persons holding estate assets to restore such to the widow. The heirs of the daughters challenged the will on the ground that in Jewish law, in such circumstances, the estate belonged to the natural heirs of the deceased beneficiary ("Inheritance has no interruption" – BB 129b; Sh. Ar., ḤM 248:1) and called for restoration of the estate assets to themselves. Bar Sheshet held it to be correct that the heirs of the daughters would succeed to the estate if the will "had been executed amongst Jews at a place where they judged according to Jewish law"; however, he added, "the testator was living in Majorca presumably as a gentile and the wife claiming under the will, as well as those claiming to inherit by virtue of kinship are also presumed to be living there as gentiles, and even as Jews they have been required to be adjudged in accordance with the law of the gentiles; for this has always been their practice of their own will; how then shall one of the parties go to a far place to be adjudged in accordance with Jewish law? Let them come before their own judge in Majorca, namely the bailus (gizbar), and whoever shall succeed and be held by the bailus to be entitled to the testator's property shall be the heir." Thus Bar Sheshet regarded the lex domicilii as the law which was intended by the testator to apply to the will and all concerned therewith, so that none of the possible heirs, or beneficiaries under the will, were entitled to demand that the validity of the will be judged according to any other law.

Duran took a different approach, determining at the outset that Jewish law continued to apply to all the parties, even though they had been Marranos (for the opinions of Mabit and Maharashdam in the matter of Gracia Mendes see above). He added, however, that even if the doctrine of dina de-malkhuta dina was applicable to the case, the fact remained that "the rulers of the land are concerned only with the property in such land"; and in regard to property outside of Majorca (i.e., North Africa in this case) "on the contrary, we must say that the same law is not to be applied on account of this very doctrine in order that the government of the land in which the property in issue is situated shall not be particular – when there are in such land those who have a claim of right – about the fact that the latter lose their right because of the opposing law of another land." In his opinion therefore the lex situs, the law of the place of situation of the property, was the proper law applicable to assets in a foreign country, and not the law of the place of domicile of the testator and beneficiaries, and since at the place of situation of the property there were those who claimed it in accordance with Jewish law, this law, being the lex situs, as well as the lex fori, was to be applied (see also *Public Authority; as for the interpretation of privilege granted by the central government to the Jewish community, see Resp. Ribash no. 228).

Further to our comments above (under "Concerning the Laws of Marriage") there is a noteworthy decision of the Israel Supreme Court, the Miller case, given in accordance with Jewish Law on the subject of conflict of laws (Miller v. MillerCA 100/49, 5(3) PD 1305).

The Miller case involved an appeal against a District Court decision requiring the estate of the deceased husband to pay a fixed monthly amount to the respondent throughout the period of her widowhood. The deceased was British and his wife had also acquired British citizenship on the basis of her marriage to him. The deceased was a Jew, who had closed his business in England and immigrated to the Land of Israel (pre-State), where he remained, without leaving, for 13 years. These and other facts led the District Court to the conclusion that the Land of Israel was his permanent place of residence and that, accordingly, given that his personal law was Jewish law, the applicable law was therefore the law applying to Jews in the Land of Israel, namely, Jewish Law, which requires the estate to pay maintenance to the wife even if the husband provided otherwise in his will. In this case, the deceased was wealthy, and the wife was hence awarded a sizable monthly payment.

Counsel for the estate argued, inter alia, that even under the assumption that the decedent's place of residence was the Land of Israel, in view of the fact that the deceased was a British subject, the domestic court must put itself in the place of the British court and determine what the latter would have ruled in such a case: i.e., would British law have transferred jurisdiction in this matter to the place of residence. Because English Law does not recognize a cause of action in this case, the English court would not have transferred the matter for the adjudication of an Israeli court.

Justice Y. Olshan rejected this argument, citing an English decision in the matter of De Nicols v. Curlier, in which the facts were similar to those of the case under discussion. In that case, two French citizens married in France and moved to England, where the husband died; the House of Lords held that the French law regarding joint ownership of property was applicable, despite the fact that the English law did not recognize such rights for the widow. Regarding this issue, Supreme Court Justice Prof. S. Assaf cited the above-mentioned case of Gracia Mendes, which is astonishingly similar to those of the De Nicols case, as follows:

By the way, it should be noted that a case very similar to the De Nicols case … is found in our Responsa literature from the middle sixteenth century, namely, the famous case involving Hannah Gracia Mendes and her younger brother-in-law. The case was brought before the halakhic scholars of the time in Turkey and in Israel, and the most important responsa are those of Rabbi Samuel of Medina (Maharashdam), the leading rabbi of Saloniki … and that of Rabbi Moses Mitrani, the Rabbi of Safed (Hamabit).

Justice Assaf also presented in detail the contents of the abovementioned responsa, ending with the above-mentioned responsum of the Rashba, to the effect that the wedding should be performed in accordance with the law of the place in which it is performed

ADD. BIBLIOGRAPHY:

M. Elon, Ha-Mishpat ha-Ivri (1988), 1:10, 58ff., 70f., 189f., 556f., 600, 711, 760; 2:1088, 1238f.; 3:1485ff.; idem., Jewish Law (1994), 1:9f., 64f., 78f., 212f.; 2:677, 743, 878; 3:1311, 1482f, 1766f.; idem., Ma'amad ha-Ishah (2005), 290f.; M. Elon and B. Lifshitz, Mafte'aḥ ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Sefarad u-Ẓefon Afrikah, 1 (1986), 48; B. Lifshitz and E. Shochetman, Mafte'aḥ ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Ashkenaz, Ẓarefat ve-Italyah (1997), 33.

[Menachem Elon (2nd ed.)]


Source: Encyclopaedia Judaica. © 2008 The Gale Group. All Rights Reserved.