basis of a broad interpretive process, in which not only the language of the contract as it integrates into the entirety of its provisions, but also the external circumstances are examined and considered. In this context, my members lay out an extensive Torah sheet. It denies the justification of the accepted distinction between the stage of the intentions of the contractors from the contract and the stage of their intentions from the circumstances. In his opinion, the time has come to abandon the "two-stage theory" and to unify the exegetical process. As part of the broad process, the purpose of the engagement will be examined, and the opinion of the contractors will also be assessed accordingly. The language of the contract is nothing but a starting point. The purpose is to clarify the purpose of the contract, and where the language is inconsistent with the purpose, the judge may deviate from the language. Moreover, once the judge has clarified the purpose of the contract, but a deficiency is discovered in the contractual arrangement that was set for its realization, the judge may fill in the gap.
- As for myself, I am of the opinion – and my colleague, Justice D. Levin agrees with this – that the interpretive track, which is dictated in section 25(a) of the Contracts (General Part) Law, is indeed divided into two stages. However, this does not mean that clear language and a coherent structure of the contract completely block the court's path to external circumstances. At the very least, it must be agreed that there may be cases (presumably special and exceptional) in which external evidence will be required to clarify the subjective meaning of linguistic expressions whose objective meaning is clear. My colleague, the Vice-President, provided a convincing example of this: if the contract stated that the parties agreed to sell a horse, but it became clear that according to the coding that was common between them, they could only refer to a machine that was referred to as a "horse", it is difficult for the court to assess the opinion of the contractors from the contract (the language of which is ostensibly clear) and to ignore the real purpose of their engagement as it is learned from the circumstances. However, with regard to the general and complex question, regarding the distinction between the stages of clarifying or unifying the intentions, I prefer not to deal with them. Before the District Court, the parties refrained from bringing evidence, and in any event, no circumstances were revealed to it other than those that emerged from the substance of the contract. It also follows from this that in summary, my position on the matter of the appeal before us will suffice if I refer to the position of my colleagues – in which, it seems, there is unanimity between them – that according to the intentions of the parties, as implied in the contract, clause 6(h)(3) of the program contract should be interpreted as prescribing a sanction for delay in the execution of the construction of apartments in development areas. I have three comments on this position.
- In the framework of my first comment, I would like to point out that I also accept that the intention of the parties within the contract is not a process that limits itself to a literal interpretation of the language used by the contractors, but rather a process that strives to reach an examination of the purpose of the contract, as it is implied within it, as a whole. However, and insofar as there is no evidence to the contrary in the body of the other provisions of the contract, I see great importance in placing the parties in their presumption that they intended what they actually wrote. As a rule, in my opinion, it is correct to assume that the way of human beings is to be meticulous and meticulous in the formulation of their contractual agreements. And the written word, where its meaning is clear and its probable intention is consistent with the subject of the engagement, is still, it seems, the most reliable source of the intentions of the contractors, as well as the surest guarantee for the fulfillment of their interest in reliance on written contracts