The two-stage theory is inconsistent with the primacy of intention over language
- As the second thread runs through case law and literature, the principle is that "in a conflict between the language of the contract and the intention of its makers, the last hand has the upper hand" (Shalev, in her book, supra, at p. 303).
This principle is not unique to us. It is accepted in comparative theology. Thus, for example, Article 1156 of the French Civil Code ("Napoleon's Code") states that in the interpretation of a contract, the common intention of the parties must be sought and not adherence to the language of the contract. Similarly, section 133of the BGB. The German states that when interpreting a declaration of will, it is necessary to clarify what the true desire is, and one should not adhere to the literal meaning of the expression. In a similar vein, Article 1362 of the Italian Civil Code states that a contract shall be interpreted according to the common intention of the parties, which is not limited by the literal meaning of the words. Article 18 of the Swiss Code of Obligations states that in the interpretation of a contract, the true and common intention of the parties must be investigated without being limited to the expressions or nicknames they used. A similar approach has existed since time immemorial in Israel. Justice Berenson noted this more than 30 years ago, stating:
"The first rule of interpreting a document is to try to get to the true intention of the writer on the basis of what is written in the document as a whole and taking into account the known background of the matter. It does not always determine the literal meaning of the words used. The written words should not be regarded as the be-all and end-all, when the context, the words and the circumstances surrounding the matter indicate an intention other than that which arises from the ordinary interpretation of the text" (Civil Appeal 324/63 Halevy Segal v. Gorjani Magi in Tax Appeal [35], at p. 373).