Vice President A. Barak: This appeal raises a classic interpretive problem. It is concerned with the proper relationship between the "body" of the text (the verba) and the "soul" (the voluntas) that surrounds it. This is the question that arises with regard to the interpretation of all legal texts (constitution, contract, and will) regarding the relationship between the text and its purpose. This problem arises in the appeal before us, according to what was stated in the judgment of my colleague, Justice Matza, in two contexts: first, the power of the judge-interpreter to depart from the text in order to understand its purpose; The second is the power of the judge-interpreter to give the language of the text a meaning that it does not tolerate, in order to realize its purpose. Judge Matza took a clear position on each of these questions. In light of this position, he came to the conclusion that the appeal should be dismissed. My position is different from his position on these two questions, and it identifies with the position of my colleague, Justice D. Levin. Therefore, I accept his position that the appeal should be accepted. I will explain this position, analyzing each of the two problems separately.
- Clear language and purpose from the circumstances
The position of my colleague, Justice Matza
- The appellant argued before us that the language of the provision of clauses 6(g) and 6(h) of the program contract should be interpreted according to the purpose of the program contract, and that this purpose should be learned from the essence of the contract, from the types of its arrangements, from the social background in light of which it was concluded and from the circumstances surrounding the contract. To these arguments, my colleague, Justice Matza, responds that "... A contract whose language is clear to the extent that it leaves no room for doubt as to its intention, the opinion of the parties must be assessed from it, and the circumstances of its conclusion should not be required, for this purpose." My colleague further states that the basis of this answer is not the perception "that clear language prevails over a clear purpose that contradicts the language". According to my colleague's view, his position is based on the fact that "clear language testifies to the intentions of the contractors and the purpose of their engagement." My colleague concludes his approach by noting that if "the language is clear, then the purpose is also known, and the court no longer turns to examining the intentions of the contractors, lest they secretly intended for another purpose, which they did not express."
What is the purpose, then, according to the position of my colleague
- Against the background of these words, the following question immediately arises: What is, in my colleague's view, the purpose underlying the contract, and in the light of which he interprets its language? In vain did I look for an answer to this question in my friend's opinion. My colleague's opinion analyzes the language of the (minor) clauses of section 6, compares their language to each other, and reaches a conclusion as to the meaning of the language. But what is that purpose which, in my colleague's opinion, also seems essential to the interpretation of the language? What, then, is the intention of the parties, and what is the purpose underlying the arrangement they reached? I labored and couldn't find it. The maximum that appears in my colleague's opinion is that the provision of section 6(h)(3) is intended "to spur the contractor to present his demand... No later than the end of the execution period." Anyone who examines my colleague's opinion is convinced that this is a conclusion that my colleague drew after he completed the interpretive process, and not a criterion (purpose) that guides him in formulating the commentary. Indeed, my colleague does not ask why the parties seek to spur the contractor, who is building a project of the second type, beyond the spur