... In examining the intentions of the parties to a written contract, our first stop is in that writing, which the parties agreed to and created, but this is not the last stop in our journey to discover their common intention. Intention, common intention, intentions – and they are the area of our inquiry in the interpretation of a contract – are all abstract concepts that are not tactile... Since we aspire to clarify the scope and scope of the interpretation of that abstract concept – the intentions of the parties – we will not be able to limit ourselves only to the literal interpretation of the contract" (The Sakeli case [4], at p. 818).
Indeed, the first stage (deriving the intention from the clear language) may be the starting point
of the exegetical process. It must not be an end point. The interpreter must move on to the second stage (deriving the intentions out of external circumstances) and return to the first stage and from there to the second, back and forth, without any restrictions of "clear language" or "vague language", until he is satisfied that he has been able to formulate the intentions of the parties to the contract. With this vital "fact", we will proceed to extract the legal meaning from the variety of linguistic meanings of the text. Only then will he have peace of mind that the language of the contract is clear.
The two-stage doctrine does not take seriously the intentions of the parties
- But beyond that, the perception that if the language of the contract is clear, the (joint) intentions of the parties to the contract must be determined only from within the contract, raises difficult questions. If the interpreter does indeed take the intentions of the parties seriously as an interpretive criterion, why is he limited only to the language of the contract in order to understand its content? Whether the interpretation of the contract is indeed based on the intention "to reach an investigation of the true intention, which was before the eyes of the contractors" (Justice Turkel Other Municipal Applications in 453/8[9], at p. 145), and whether the contract is based on its "true intent" (Civil Appeal 603/79 Abergil v. Peleg & Sheetrit, Building and Development Company in a Tax Appeal [21], at p. 637), and whether indeed "the intention of the parties dominates the determination of the interpretation of the expression in the contract..." (President Shamgar Grants Other Municipality Requests 703/88 Morgan Industries in Tax Appeal et al. v. Batei Gan for Rent in Tax Appeal et al. [22], at p. 294), and whether "the work of interpretation is indeed intended to clarify the true intention of the parties to the contract" (President Shamgar Other Municipal Motions 1395/91 Y. Winograd et al. v. Yedid and Counter-Appeal [23], at p. 800). And if indeed the interpreter's role is "to get to the end of the intention of the drafters of the document..." (Justice D. Levin Other Municipal Motions 627/84 [11], at p. 482); And if indeed "the main thing in interpreting a contract is to trace the intentions of the parties" (Justice Dorner Other Municipal Applications 5597/90, 5607 Cohen v. C. Records B. S. In a tax appeal (n. If. C. Ltd.); CB Records S. In a tax appeal (n. If. C Ltd. v. Cohen [24], at p. 217) – if indeed we are committed and adhere to the (joint) intention of the parties – why should the interpreter be limited to the language of the contract itself, and only if this language is not clear, will he be permitted to turn to external circumstances? Behind the approach that if the language is clear there is no room to examine the intentions according to the external circumstances, is there no hiding the perception that it is not the intentional person who decides, but rather the clear language that determines? For if the intention is so critical in the interpretation of the contract, and if adherence to it is the central parameter, is it not essential to give the judge-interpreter (interpreter) freedom to turn to any reliable source – whether it is the language of the contract or the external circumstances – in order to understand the intentions of the parties, which is so essential for the work of interpretation? Of course, in most cases, the intentions that arise from the language of the contract are "safer" and more reliable than the intentions that arise from the circumstances. It was rightly noted that the court must refrain from giving "validity and significance to a hidden intention of a litigant that was nested in his heart and concealed from the other and was not expressed in the contract..." (President Shamgar Grants Other Municipality Requests 765/82 M. Alter et al. v. Elani [25], at pp. 710-711). But from here to the rigid rule that lies at the foundation of the two-stage approach is a long way off. The argument was not made that the external circumstances were not credible enough to learn from them about the intentions of the parties. On the contrary: the external circumstances are certainly a reliable source from which to learn about the intentions of the parties, and section 25(a) of the Contracts (General Part) Law explicitly refers the interpreter