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Published online by Cambridge University Press: 12 February 2016
The new Israel Civil Procedure Rules, 1963 re-enact in rr. 269–82, with certain amendments, rr. 241–50 of the Palestinian Civil Procedure Rules, 1938 dealing with “Summary Procedure on Specially Endorsed Statement of Claim”, which in their turn were a colonial version of Order XIV of the English Rules of the Supreme Court. A glance at some recent judgments in Israel shows a surprising number of cases in which doubts have arisen as to the application and scope of the Summary Procedure in general and the defendant's right to be heard in particular. One may wonder whether litigants and lower courts quite understand the rules of the game or whether the game is after all not as easy as might be expected of a summary procedure. And indeed, compared with institutions in continental Europe, where scores of thousands of claims are disposed of without discussion and complaint, our Summary Procedure seems inelegant and burdensome on plaintiff and defendant alike. It is the object of this study to compare it, and the procedure under the English Order XIV, with those European institutions. In view of the gap between Anglo-Israel and Continental notions of civil procedure it may be useful also to sketch the history of the various forms of action, viz. the (summary) trial by documents, the non-litigious executory instruments and the conditional command to pay.
1 The following is a selection of cases from the last two years showing mistakes made by parties and registrars:
(1) Avnir v. Carpin (1965) vol. 4, 19 P.D. 85; Evidential value of affidavit weighed in deciding on giving leave to defend; in this stage it ought to be accepted as though it were true.
(2) Weiss v. Brunner (1965) vol. 4, 19 P.D. 88; Ordinary and summary action combined.
(3) Zederbaum v. Ilani (1966) vol. 1, 20 P.D. 99; Unclear defence; wrong evaluation of defence by lower courts.
(4) Schreiter v. Heletz Ltd. (1966) vol. 1, 20 P.D. 178; Defective statement of claim accepted and defence of lack of protest wrongly rejected by registrar.
(5) Rozovski v. Zbeida (1966) vol. 1, 20 P.D. 236; Part of claim not based even on a “beginning of written proof”.
(6) Schnearoff v. Zanit (1966) vol. 1, 20 P.D. 346; Defendant permitted to exchange his affidavit by an unsworn statement of defence.
(7) Selvin v. Glick (1966) vol. 2, P.D. 15; as No. (1).
(8) Lot 56, 57/6912 Co. v. Vogel (1966) 49 P.M. 57; Damages claim wrongly added to liquidated demand.
(9) Lot 70/3647 Co. v. Shushan (1966) 49 P.M. 336; as No. (8).
(10) Yodsin v. Tamir (1966) 49 P.M. 333; No document with defendant's signature submitted by plaintiff; application to examine defendant made in spite of lack of preconditions of summary procedure.
2 18th ed. (1963) p. 59.
3 As quoted by Odgers, ib., from the report 14 R. at p. 225, 226; in the reports (1895) 1 Q.B. 597 (603) and 72 L.T.R. 181 (182) the sentence runs somewhat differently.
4 For England see cases cited in The Annual Practice 1967 p. 121–22, for Israel—n. 12 below.
5 Becker v. S. G. Investment Co. (1963) vol. 4, 17 P.D. 2445 (2447–48).
6 Friesler v. Weiss (1951) 5 P.D. 878 (891).
7 Arde Co. Ltd. v. Katz (1964) vol. 3, 18 P.D. 518 (522); Rozovski v. Zbeida (1966) vol. 1, 20 P.D. 236 (240); but see Mr. Justice Landau's doubts in the latter case (ib. 243).
8 German Zivilprozessordnung (ZPO) (1877) § 592.Google Scholar
9 Austrian ZPO (1895) § 548.
10 See also the explanation of the difference given in Becker v. S. G. Investment Co. (1963) vol. 17 P.D. 2445 (2448).
11 Arde Co. Ltd. v. Katz (see n. 7 above) at p. 521–22; Shnearoff v. Zanit (see n. 1 above) at p. 348, para 4.
12 Avnir v. Karpin (1965) vol. 4, 19 P.D. 85 (87).
13 Are they effective enough for the purpose, so as to justify the violation of the basic principle of equality of the parties?
14 See the selection of recent cases given in n. 1 above.
15 Austrian ZPO § 550 (2), 552 (2), 557 (1). For private documents other than bills of exchange this kind of procedure is not available.
16 ib. § 552 (3), 559.
17 On a special feature of the Austrian system—the Zahlungsauftrag—see n. 43 below.
18 Pollack in Leske and Loewenfeld, , Die Rechtsverfolgung im Internationalen Verkehr, 2nd ed. I. (1930–1933), 191.Google Scholar
19 I omit particulars of this kind of “evidence”; it is not testimony in the accepted sense (the party is no witness in German law), and no witnesses are examined in the summary stage of the proceedings.
20 Maitland, F. W., The Forms of Action in Common Law (1909, Cambridge U.P. ed. 1965) p. 25.Google Scholar
21 Kohler, J., Zivilprozess und Konkursrecht, in: Enzyklopädie der Rechtswissenschaft (1913 ed.) Vol. III, 392Google Scholar; 393.
22 ib., e.g. p. 7, 43, 79–80.
23 Calisse, , A History of Italian Law, in: Continental Legal History Series, vol. VIII (1928).Google Scholar
24 Calisse, ib., p. 778.
25 Calisse, ib., p. 766.
26 The comparison is not out of place: different eras have different social problems, and at the beginning of the Industrial Age the relationship of capitalist and his workers was far more characteristic of the period and far more critical than the age-old antithesis of debtor and creditor. Thus, just as the modern industrialist relies on the slogan of freedom of contract, the medieval creditor endeavoured to preserve his old rights of private execution through a clause in the contractual conditions of loan.
27 Quoted by Kohler, op. cit., p. 390, note 2.
28 Kohler, ib.
29 Kohler, ib.
30 Kohler ib., p. 390 quotes Durantis (1237–96) and Bartolus (1313–57) and other sources from the 13th, 14th and 15th centuries.
31 Brunner, , Grundzüge der deutschen Rechtsgeschichte (2nd ed. 1903) p. 187Google Scholar; (7th ed. 1927) p. 208.
32 Kohler l.c., p. 390 at notes 4 to 6.
33 Code civil art. 1317–18; Code de procédure civile art. 135 (original version); art. 547; etc.
34 ZPO § 794, No. 5.
35 Distress of Rates Act, 1960 (c. 12), replacing an Act of the same name and similar contents of 1849.
36 The above-mentioned r. 269(2) of the Civil Procedure Rules, 1963, provides an alternative remedy: summary procedure in court.
37 Maitland, op. cit., p. 38.
38 Died 1190.
39 See the almost identical writs given by Maitland at p. 88, and Maitland's own note 4 thereto.
40 Calisse, op. cit., p. 778.
41 e.g. Code civil, art. 2217; Code de commerce, arts. 198, 199; Code de procédure civile, arts. 583, 626, 674, 819.
42 Today Loi du 4 juillet 1957 relative au recouvrement de certaines créances.
43 In Austria similar rules exist in respect of the Zahlungsauftrag or Mandat for debts embodied in public documents or bills of exchange. That Command too becomes automatically executory in case of silence of the debtor. But those rules are part of the Zivilprozessordnung (Civil Procedure Code) of 1895 (art. 550(2) ), and not, as in Switzerland, part of the execution proceedings.
44 “For modern, more elegant solutions of this problem see pp. 228–29 below.
45 Leske, & Loewenfeld, , Die Rechtsverfolgung in Internationalen Verkehr, 1st ed. II (1897) 479–81; 2nd ed. I (1930–33) 506.Google Scholar
46 Ibid. (1930–33) 536.
47 Ginsburg, & Bruzelius, , Civil Procedure in Sweden (The Hague 1965) 355–56Google Scholar; personal information obtained from Dr. Yosef Fischler, Advokat in Stockholm.
48 According to Kohler (op. cit., p. 368) the origin of this device was in France.
49 § 724–25 ZPO.
50 Art. 146, 545 C.p.c; Décret du 12 juin 1947 relatif a la formule executoire.
51 Leske and Loewenfeld, 2nd ed. p. 407–08.
52 ib. p. 580.
53 ib. p. 191.
54 ib. p. 191, 196.
55 ib. p. 697.
56 Cappelletti, & Perillo, , Civil Procedure in Italy (The Hague, 1965) p. 344.CrossRefGoogle Scholar
57 Repeal of § 695 (formerly 635).
58 The Austrian Law of 1873 on the dunning procedure sees no way to this end but a combination of an ordinary action with the application for the command to pay: § 19. The Austrian ZPO of 1895 too does not distinguish as clearly as the laws of other countries between the non-litigious dunning procedure and the procedure in contentious matters (§ 548).
59 In Germany it is then called Vollstreckungsbefehl (execution order).
