Section 2 of the Contracts Law enshrines the requirement for the finality of the bidder, as well as the requirement of specificity of the proposal.
Section 5 of the Contracts Law anchors the bidder's discretion.
- A prerequisite for the validity of a contract is that the parties intended to create a binding legal relationship, and that the contract fulfills the requirement of specificity. In addition, discretion is required, for as is well known, the test for the existence or absence of an intention to create a legal relationship is the objective test. The outward appearance of things indicates the inner intention. Even if a party did not intend to commit on the subjective internal level, the court will protect the external reflection of the intention, and accordingly determine whether or not an agreement has been entered into (see Gabriela Shalev's book, Contract Law - The General Part, Towards the Codification of Civil Law (Din Publishing, 2005), p. 136, and see also the words of Justice Danziger Other Municipal Applications 7591/13 Anonymous v. Anonymous, Article 14 ([published in Nevo] January 25, 2016)).
In her aforementioned book, the scholar G. Shalev notes that the demand for finality is fulfilled when there are indications or signs that point to determination, and not necessarily if it actually exists. In other words, there are cases in which a party will be bound by a contract despite the absence of intention on his part, if it is reasonably possible to deduce from his words or conduct the discretion to engage with the other party in the contract (G. Shalev, p. 174).
As for the specificity of the proposal, the requirement is that the parties agree on the framework of the agreement and the essential and essential details therein (G. Shalev, pp. 175-177).
The question of specificity involves the question of finality, since sometimes the court concludes from the absence of details in the agreement to the absence of discretion, i.e., that the engagement was not established at all. However, if it is possible to fill in the missing details within the framework of mechanisms prescribed by law, or in case law, it is possible to reach the conclusion that an agreement was concluded despite the absence of essential details (see in this regard Civil Appeal 1734/96 Cohen v. Cohen ([published in Nevo], April 23, 1998), as well as Civil Appeal 2469/06 Ronen Suissa v. Zaga Company in Block 5027, Plot 1 in Tax Appeal ([published in Nevo], August 14, 2008)).
- I will turn to a civil case (Tel Aviv-Yafo) 50152-10-12 Lior Farhi vs. Raviv Ram Ben Menachem [published in Nevo] (July 20, 2016) The most beautiful for our case:
"The first and foremost of the existence of an agreement between the parties is that there must be an offer, as opposed to an application, that attests to the applicant's discretion to enter into an agreement with the bidder, a proposal that must fulfill the requirement of specificity in order for an agreement to be perfected when the offer is accepted. In order for the elements of the offer to be fulfilled, the foundations of acceptance must be fulfilled, which are the bidder's discretion to accept the offer and an unqualified notice of acceptance of the particular offer, a notice that can be given in writing to the bidder and can even be learned by conduct that creates a contract.