Classification of Goods and Feminism- Another Round
Classification of Goods and Feminism- Another Round
Not long ago, we reviewed two decisions discussing the classification of an immobilizer under customs tariffs, and recently another small development has taken place on this subject that should be mentioned.
Generally, the immobilizer is a device in a car that makes automatic connections and disconnections in the electrical current flowing to the ignition and starting systems and the fuel pump inside a motorized vehicle. When the car owner locks the car systems by removing the car key, the electrical circuit conducting the electrical current to the ignition system and the fuel pump is automatically opened- after a short period of time- so that their activity stops and these systems do not operate until the circuit is closed again.
The customs or sales tax rate is set according to the classification of a product in the Customs Tariff, and here a disagreement arose between the importers and the Customs Authority. The importers believed that the immobilizer should be seen as an electronic key for a car that provides protection against unauthorized use of the car, achieved through blocking the electrical system and preventing the car from starting, operating, or continuing to move. Accordingly, the importers classified the device under heading 83.01.2010, containing lock (including car locks), and did not pay purchase tax. After a time, the Customs Authority demanded that the importers pay the remainder of the tax, since, according to the Customs Authority, the goods should be classified under heading 85.26.2049 which then included electric circuit-breakers, of the kind operating in a motor vehicle. In the absence of an agreement, the question reached the court, who was asked to discuss the question of the classification of the goods.
Indeed, this is a fascinating legal question- what is an immobilizer? Is it a car lock or an electrical circuit breaker for a motor vehicle? In its immediate function, the immobilizer is clearly a circuit breaker for a motor vehicle, but seeing it as such somewhat misses its nature. On the other hand, seeing the immobilizer as a lock does reflect its final nature better, but it seems abstract and detached, since this is clearly not locking of the kind done with a lock or even an electric lock.
The lower court found that the immobilizer should be classified as a lock. On appeal, the case was reversed- the majority found that the immobilizer should be classified as an electric circuit breaker for a vehicle, while the minority held, like the lower court, that it should be classified as a lock.
The majority believed that the nature and physical character of the immobilizer, according to a description of its attributes, is an electrical or electronic device that serves to break electrical circuits in a car. The majority emphasized that even after the immobilizer is neutralized, the car must be started with a key, which shows that the immobilizer does not lock the car. In the opinion of the majority, the fact that the immobilizer is often installed in the ignition key is not significant, since the important thing is the goal for which the immobilizer was installed and that is to break electrical circuits in the car to prevent the possibility of activating the ignition. While the classification of the immobilizer as an electrical circuit breaker is not optimal, it is better than classifying it as a lock, the majority noted.
In complete opposition to the majority, the minority held that the immobilizer should be seen as a lock. In the opinion of the minority "use of the 'character' test would skew the reality and not lead to the desirable. It is true that an immobilizer contains automatic connections and disconnections in the electrical current, but the primary thing is that it disconnects the electrical current flowing to the starting, ignition, and fuel systems of the vehicle There is a reason that this disconnecting is in these places and not in the horn or the musical system of the vehicle: the disconnecting is meant to lock and close out those trying to steal the car from its owners. And that is all! That is its purpose and thus that is also its character. Any attempt to classify it otherwise misses the truth and the point."
The conceptual gap that yawns between the majority and the minority (and the lower court) is clear: should we look at the immobilizer from up close and see its practical and immediate use (a device for breaking the electrical current) or should we step back and go towards its character or the more abstract use (a lock for a car).
Due to the difference of opinions in the various instances, the importer attempted to bring the matter to a third round in the Supreme Court, but recently (PCA 5225/09, 20.1.2010), this petition was rejected, with the court noting (without even asking for the response of the Customs Authority!) that "this debate regarding the application of the existing precedent to the specific case does not justify proceedings in a second appeal, notwithstanding the fact that the lower instances were divided and notwithstanding the minority opinion." It should be noted that the Supreme Court did not enter into the heart of the issue even though it was aware that there was a significant debate between the various judges.
Our earlier article was titled "Classification of Goods and Feminism" and we noted, following the writing of Hila Keren in her book- "Contract Law from a Feministic Perspective", the possible feminine voice relating to the classification of goods. In her book, Hila Keren suggests a tool box to locate the feminine voice. Among the tools in that box is abstractionism. In Keren's opinion, abstract models are characteristic of male theory, while the feminine voices attempt to be concrete and context-dependant. Keren notes that psychological and psychoanalytic studies relating to the differences between the sexes show that boys prefer abstract models that favor rules over circumstances. Accordingly, Keren analyses the rules of offer and acceptance, for example, and concludes that this is a typical male conception, which prefers to see the formation of a contract as a schematic process of offer and acceptance, rather than an interaction between two parties, sitting down and trying to reach a solution together.
As explained above, the minority opinion, as well as the opinion of the lower court, reflects an abstract-male stance, while the majority opinion reflects a female stance, more practical and concrete. The personas acting on this issue fit the above model very well- the majority was reached by two women (Justice Diskin, joined by Justice Stopman), while the minority opinion and the lower court opinion were written by two men (Justice Ben-Yosef and Justice Ben-Chayim).
There is nothing left for the readers but to guess who rejected the petition for appeal in the Supreme Court- a man or a woman? That's right- the Honourable Justice Ms. Edna Arbel.
How To Remove Decals And Bumper Stickers From Your Car? How to type faster than you can speak and never look at the keyboard Barcoding and WMS Integration to Dynamics GP Daily Stock Analysis - Leading Your Way To Become A Millionaire A Permanent Church Fundraising Idea Losing the FIFA World cup bid doesn't mean that the choice was corrupt and fixed Gadget stores are on the rise in both spheres Types of Fundraisers 1-2-3 and Freight Receiving is Complete Are Lyle and Scott polo this seasons "must have trends"? Higher Tax Refund vs. Lower Tax Liability IRS Payment Plans and Current Year Refunds Lumineers Thin-layered And Invisible