But beyond that: the certainty and certainty of the theory of the two stages are imaginary. The decision whether the language of the contract is clear or not is not made according to legal rules, but according to a feeling, which naturally leads to insecurity. What is perceived by one judge as clear language is perceived by another as vague language. An arbitrary distinction regarding the clarity of language should not be a central criterion in the interpretation of a legal text. Language becomes clear only against the background of the context, and a rule of interpretation that limits the context to the text alone is inherently arbitrary. He replaces the intellectual confrontation with the meaning of the text with an intuitive conclusion based on a sense of language (for a sharp criticism, see London). Zander, the law 126( 1994,.th. Ed.4
The two-stage theory does not fit into the law of general contracts
- The theory of the two stages in the interpretation of a contract does not fit well with the totality of contract law. It is inconsistent with significant parts of contract interpretation law. As we have seen, at the foundation of this doctrine is the assumption that for the purpose of interpreting the contract, "clear language testifies to the intentions of the contractors and the purpose of their engagement". A kind of presumption is created that cannot be contradicted,
that the intentions of the contractors are those that arise from the clear language of the contract. The intentions of the parties, which can be proved from the external circumstances, are not taken into account. This presumption does not fit with the totality of contract law. Indeed, the formulation of the laws of contract interpretation must be integrated into the general fabric of contract law. The laws of interpretation do not stand in their isolation. They need to be intertwined with the basic contractual concepts. What is the point of developing the laws of interpretation, the result of which will be a contract according to whose content is not created at all (since there is no finality of opinion within the framework of the laws of offer and acceptance)? Or what is the logic in formulating a contract (within the framework of the first stage of the two-stage theory) that grants a wide hand the power to one of the parties (or both) to cancel it due to a defect in its conclusion (since there was an operative error in it)? What is the point of determining that the content of the contract is as it emerges from the clear language of the contract (the first stage in the theory of the two stages of interpretation), if at the same time the determination is presented that this interpretation contradicts the principle of good faith? 7. The basic point of departure is that contract law is based on the autonomy of the private will. This autonomy of the individual will is not the hidden will of the individual. It is his (subjective) desire that finds external expression. Indeed, at the basis of the contract is the common subjective intentions of the two parties. When such an intention exists, it is the basis for the contractual examination. Only when a common intentionality does not exist and the opinion of one party is different from that of the other party, is the contract examined according to objective criteria. The "objectification" of contract law begins only when there is no subjective basis shared by the parties to the contract. The objective doctrine of the contract that is accepted today in contract law (see D. Friedman and N. Cohen, Contracts (Aviram, vol. 1, 1991) 156) applies only where there is no subjective conclusion shared by both parties. Indeed, the objective doctrine seeks to protect the interest of reliance. Where there is no reliance – since both sides agreed according to their subjective view – there is no room for objective theory. President Shamgar rightly noted that: