It is not surprising, therefore, that when he comes to interpret the provision of section 6(h)(3), the learned judge is not required to interpret the other sections, including section 6(h)(2). On this question, which ostensibly did not give rise to a dispute, he was not asked to rule, and it seems that he was not permitted to rule either. The rule is that a civil court does not rule contrary to the agreed position of the parties before it, and this rule applies here as well: when the parties disagreed as to the interpretation of section 6(h)(3) only – while regarding the interpretation of section 6(h)(2) they presented (at least implicitly) an agreed position – the court was not entitled, in its way of interpreting section 6(h)(3), to violate the parties' agreed interpretation of section 6(h)(2). The contract is drawn up by the parties, and the agreement of the parties as to the interpretation of one of its provisions establishes a conclusive presumption that the parties' interpretation is correct. And just as the court does not draw up a new contract for the parties, which is different from the one they made themselves, so it does not interpret a provision in the contract contrary to the agreed position of the parties regarding its interpretation.
- My third comment relates to the scope of use of the supplementary mechanism. My colleague, the Vice-President, is of the opinion that an examination of the program contract according to the meaning given to it in my judgment leads to the conclusion that the contract is deficient and requires completion. I did not find any support for this view in the argument of the State's counsel, and this was sufficient to make it redundant. However, in my opinion, the conclusion regarding the existence of a deficiency is not a necessary consequence of the systematic interpretation of the contract. It should be noted that the provisions of the contract, which are the subject of the discussion, are not concerned with the definition of the mutual obligations of the contractors, but rather with the determination of contractual sanctions agreed upon for breaches of the terms of the contract.