. Therefore, the interpretation of a contract according to what appears (in the eyes of the interpreter) to be the purpose of the contract, must at least find a "point of support" in the language used by the parties; In any event, I cannot support a "purposeful" interpretation that is detached from the language, that contradicts it or does not reconcile with it. This limitation on the power of the interpreter is particularly important, when within the framework of the contract and in the same substantive context, the same expressions are used repeatedly. The reuse of the same phrases cannot be accidental. It testifies to the existence of a common denominator between the contexts, and the commentator is not permitted to ignore it.
I am afraid that my colleagues' interpretation of clause 6(h)(3) of the program contract does not meet this test. For the sake of illustration, let us again take the example of my colleague, the Vice President. Let us assume (as an imaginary and distant possibility) that the express consent of the contractors to the sale of a "horse" can be interpreted as an agreement to the sale of a machine, even if the circumstances that attest to the lexicon of the contractors are probable from the contract. Let us now assume that in the said contract two different transactions were agreed, in identical language, in each of which we are dealing with the sale of a horse, and that there is no dispute between the parties that the first of the two is indeed concerned with the sale of a horse. Is it possible in this state of affairs to accept, according to the intentions of the parties as implied in the contract, that in their second transaction the parties aimed at the sale of a machine?! And what if the contract described also included a third sale transaction, in which the sale of a machine was explicitly discussed? Will it not then be understood, even more so, the importance of the restriction that will be imposed on the interpreter's power to determine that the second transaction, even though it was discussed in a "horse" (as in the first transaction), was concerned with a machine (as in the third transaction)?! In terms of the identity of the use of phrases, the program contract is similar to the last case described. In each of the three subsections of section 6(h), the identical box is repeated "realization of the purchase obligation", while in section 6(g) the phrase "delay in execution" is used. Since no one disputes the meaning of the expression "realization of the purchase obligation" in sections 6(h)(1) and 6(h)(2), I cannot accept that the same expression, in clause 6(h)(3), may be interpreted as "delay in execution". As appears from clause 6(g), the expression "delay in performance" was well known to the drafter of the contract; Whereas section 6(h)(3) is intended to regulate an issue similar to that regulated in section 6(g), there is a presumption of the wording that would have used this expression in section 6(h)(3) as well. The use of the phrase "realization of the purchase obligation" also in the framework of section 6(h)(3) indicates that the purpose of this section is not of the type of matter regulated in section 6(g), but rather of the type of matter that is regulated in sections 6(h)(1) and 6(h)(2).
- My second comment relates to the fence of dispute that the parties have set up for the decision of a house.
District Law.