This provision is intended to bridge the gap between the joint subjective intention ("intentions", the subjective purpose) of the parties, and the expression given to it in the language of the contract:
"The assumption is that there was an agreement between the parties, but the written document does not reflect this agreement. The mistake in question is not, therefore, the will of the parties or the agreement between them, but rather the putting the matter in writing" (Friedman and Cohen, in their aforementioned book, vol. 2 (1993), at p. 759).
"The aspiration embodied in section 16 is to give expression to the true intention of the parties and to overcome the disruptions and errors that occurred in the process of transmitting this intention to writing" (Shalev, in her book, supra, at p. 208). This provision is intended to examine "whether what was ultimately formulated to be the document that was supposed to reflect the contract entered into between the parties is different from the actual contract that was concluded, or not" (Justice D. Levin, Other Municipality Applications 424/89 Farkash v. Shikun and Open to Israel in a Tax Appeal [54], at p. Thus, if the conditions set forth in section 16 of the Contracts (General Part) Law are met, the judge may amend, add to or detract from the language of the contract, in order to adapt the meaning of the contract (according to its interpretation in the narrow sense) to the intentions of the parties.
It is not to be said, therefore, that in any case the words limit the interpretation. They do so with regard to interpretation in the narrow sense. They do not do so for the purpose of correcting an error (within the scope of interpretation in the broad sense).
- Is it possible to invoke the provision of section 16 of the Contracts Law (General Part) in the case before us? In the judgment of the District Court there are a number of statements in support of this. Justice Tal notes that "the agreement should be interpreted according to the plainness of its language and its location, and not according to the 'intention of the parties.'" It can be concluded from this that the intention of the parties is different from the linguistic meaning of the contract. Elsewhere, the judge notes that he assumes that "the pressure that the government counsel spoke about on the drafters of the contract did indeed do its job, by inadvertently omitting the penalty clause for delay in the execution of projects of the second type." However, it was not determined as a factual finding that the (subjective) intention of the parties was to establish a provision of a "fine" (i.e., civil sanction) in both types of projects. I am unable to determine which parts of the (final) purpose are an expression of the subjective purpose (the "intentions" of the parties) and which parts are an expression of the objective purpose (such as business efficiency and commercial logic). The burden in this matter rests with the person who claims to be wrong (see Friedman and Cohen, in their aforementioned book, vol. 2, at p. 761). This burden has not been lifted in our case. The "culprit" in this matter lies at the doorstep of both parties, since they agreed to legal proceedings that prevented the presentation of external evidence as to their common intention, and made do mainly with the language of the contract and a number of clarifications regarding it. For this reason, there is no room to make use, in the matter before us, of the provisions of section 16 of the Contracts (General Part) Law.