My experience with figurine brought a smile to Rachel’s face. It reinforced her assessment of her boyfriend: an eccentric with an unworldly outlook. Her light-hearted airs gave way to a serious reflection when I outlined the information about the manufacturers’ response and the relationship between Rotem and Franz Wolf’s firm. She thought it best to discuss it straightaway with our employer.
Jacob Keren looked grave but was not unduly perturbed by the poor outlook of an action against the German firm. In any event, an attempt to sue it had to be deferred for the time being. Our clients were not wealthy and proceedings in a foreign country would entail extra expenses. This avenue might, however, be explored later on either by Franz Wolf’s firm or, possibly, by Rotem. In turn, the matter might be settled between the re-insurance companies of Rotem and of the insurers who covered the German manufacturers. Presently, we had to plan our campaign against Rotem.
Jacob Keren conceded that the position was complicated by his own ambivalent position. As a non-executive director, he owed duties to Rotem. These were not vacated by Rotem’s consent to his acting for Dahlia. To her, though, he owed the usual solicitor’s duties to a client.
“But then,” pointed out Rachel, “when Rotem agreed to let you act for Dahlia, they knew your duties to her would become paramount!”
“But Dahlia and her mother know of my relationship with Rotem. They engaged me with the knowledge that I cannot dismiss my directorship from my mind. One of the reasons for my delegating the case to you two, was to avoid any accusations about a conflict.”
“From a practical point, what does this mean?” she wanted to know.
“I can – and will – consider the plan you form. But I should not, in all conscience, work out your strategy.”
“So – all in all – you have the cake and eat it!” she pointed out.
“You can call it that. I prefer to see myself as a sort of mediator. But, of course, whatever I discuss with you, will not go beyond the door of this room. Similarly, I won’t be able to let you in on any deliberations of Rotem.”
Jacob Keren then listened to the information I had obtained. He had doubts about my argument respecting a contract for the dispatch of renewal notices. In English law, the argument would not even get off the ground. It was – he added malevolently – a red herring. European systems were, of course, irrelevant: they did not apply.
“But suppose the position is governed by Turkish law?” I asked.
“Are you trying to fit this so-called contract into a provision of Turkish law?” sneered Keren.
“I, too, wonder about your idea,” broke in Rachel.
Their apprehensions were understandable. Before the British armies took over Palestine, the applicable private law was to be found in a Turkish Code known as the Mejelle. Just before the outbreak of World War I, the Turks realised that the Mejelle had become outdated. Many modern transactions could no longer be fitted into the ambit of its rigid Articles. To overcome the difficulty, they passed a new Law, numbered as section 64 of the Civil Procedure Law, which declared that any agreement between parties was binding and valid provided its object was lawful.
My argument was that under this section Rotem’s undertaking to dispatch renewal notices when the firm’s policy was about to expire constituted a binding contract. As section 64 had not been repealed or chucked out when the British took Palestine over, it had remained in effect. A contract deriving its force from it was valid even if it did not satisfy the technicalities of the English law of contract.
“Are you serious about this argument?” protested Jacob Keren. “Aren’t you flying a kite?”
“Of course not, Mr. Keren. Just consider the issue objectively. If you reject my argument you aver that the good old absurdities of the ancient Mejelle had been replaced by the sheer technicalities of English law. If the British administration had sought to achieve such a result, why didn’t they kick out the Turkish law of contract and applied English law in its entirety?”
“An interesting point. Do you have any authorities in support?”
“In expect to find some in law reports of the British period. Many Colonial Judges were eccentric barristers, who did not fit in at home. I should not be surprised if some of them were prepared to strike a blow at the sacrosanct English law!”
“It’s worth a try,” Keren agreed. “Even if it is not clear cut, it’ll provide a stick to beat Rotem. They’d hate to be told that English law doctrines can be challenged! I suspect they would, rather, admit liability.”
“Shall I then begin the search?”
“Sure,” he consented. “But we must also keep our clients informed. I’ll ask them to come over this week.”
Dahlia and her mother had little to add to our professional analysis. It went over their heads. To them only one issue mattered: would we manage to get enough money to do whatever was possible for Dahlia. How we got it was immaterial. Rivka Nissim, though, sensed the sailing might not be smooth.
“But why does all this stuff matter so much?” she wanted to know.
“Because we need an argument to persuade Rotem to pay,” explained Rachel. “Usually, an insurance company does not settle a claim if the policy has lapsed.”
“But don’t we have rights against them?” Rivka persisted.
“I’m afraid not,” explained Rachel. “Their customer is Wollor and so we cannot sue them directly.”
“But I’m sure Mr. Wolf does everything he can,” chimed in Dahlia.
“He does,” Rachel assured her. “The problem is to persuade Rotem.”
“What do you intend to do?” asked Rivka.
“We are trying to formulate a good legal argument,” explained Jacob Keren. “And Eli has an idea. But it must be researched and so he must look up some books in Jerusalem.”
“But won’t this be very expensive,” she asked apprehensively.
“We’ll treat this as ‘general research’ of the firm. I’m sure the results will bear fruit in days to come,” Keren assured her.
“Thanks. Sometimes, you know, I feel I am a very lucky girl!”
“What do you mean, Dahlia?” asked Rachel, startled.
“The accident, of course, was bad luck. But look how kind everybody is to me. Mom is looking after me so well; and Mr. Wolf: he is really good to me; and now you. And I know I’m in good hands; and this is so comforting.”
“It’s alright, Dahlia,” Rachel hurried to assure her; “it’s the least we can do.”