Civil Appeal 4628/93 State of Israel v. Apropim Housing and Development (1991) Ltd. IsrSC 49(2) 265 - part 29

to this source.  Other provisions of  the Contracts Law also  require the formulation of the intentions of the parties and by means of external circumstances (see, for example, sections 13 (apparent contract) and 16 (clerical error) of the Contracts Law (General Part)).  But beyond that: if the external circumstances are indeed a reliable source for the intentions of the parties when the language is not clear, why are the external circumstances not reliable – to the point of prohibiting addressing them – when the language is clear? Who would argue that in all circumstances the common intention of the parties is indeed anchored in the language of "clear"? Is it possible to find the intentions of the parties in the external circumstances? Indeed, what is required is not a rigid evidentiary rule regarding the inadmissibility of evidence on external circumstances – and such a rule that views the clear language as a criterion for non-recourse to external circumstances (see Civil Appeal 650/84 [18], at p. 384, which refers to the laws of evidence in this matter), but rather a flexible rule of "weight" regarding the primacy of the weight of the data over the intentions that derives from the language of the contract over the weight of the data on the intentions that derives from the external circumstances.  Of course, the external circumstances will not take into account "individual or conjuncture considerations of one of the parties" (see Civil Appeal 406/82 [7], supra, at p. 499), nor "presumed intent, which is not translated into the written language" (Justice Netanyahu, Other Municipal Applications 650/84 [18], supra, at p.).  The court will not turn to examining "the secrets of the communicators, lest in their hearts they were directed to another purpose, which they did not express" (in the words of my colleague, Justice Matza).  The court will refer to reliable data that has received external disclosure (written, oral, or any other conduct) regarding the parties' common intentions.  In contrast to my approach regarding this transition from the rules of "admissibility" to the rules of "weight" it can be argued, of course, that it creates insecurity and uncertainty, and it can be further argued that the two-stage approach reduces the insecurity and creates certainty in all those cases in which the language of the contract is clear.  I cannot accept this argument.  The modern tendency in many areas of law is to move from prohibitions on the admissibility of information to permitting it to be presented, taking into account its reliability with regard to its weight: "truth or stable – truth is preferable."