Foundations in Germany and Israel: An Analysis of the Legal Framework

Abstract

AbstractThis article compares the law of foundations (charities) in Germany and Israel. What is a foundation and what it is created for, may receive different answers in different legal systems. When an Israeli jurist refers tohekdesh, he is not referring to the same concepts included in the GermanStiftung. These differences find expression both in practical and theoretical matters. For example, German law recognizes the foundation as a legal personality, a characteristic lacking in Israeli law. Moreover, in Germany a foundation managing a business enterprise, or an enterprise adopting the legal form of a foundation, is an accepted phenomenon, but this is not accepted in Israel.To understand what a foundation is, it is necessary to distinguish between the different types of foundations: on one hand public or private ones, and on the other hand religious and secular foundations. This article discusses the methods of creating a foundation (mortis causaorinter vivos) and examines the elements needed to create it: purposes, assets (one of the central points in Foundations Law is to ensure their efficient use) and management. The comparison does not obviate the problem of state supervision, needed to ensure the right of the beneficiaries and of the entire community to correct usage of the endowed resources.In the final analysis, the paper stresses the importance of comparative law as an instrument aimed to broaden legal theory and enrich the dialogue between jurists of different countries.