For our purposes, the following words of Justice Diplock are appropriate
... If detailed semantic and syntactical analysis of" words in a commercial contract is going to lead to a That flouts business commonsense, it must be . Made to yield to business commonse conclusion( 201, at[72] .antaios compania s.a) "nse fill in a contract .30Legal norm may be missing. This is the norm that has lacune Lucke or "empty space". There is a deficiency in the norm where the legal arrangement is incomplete, and this imperfection contradicts the purpose of that norm. "There is a lack of a place where the legislative order is incomplete, in a manner that contradicts its purpose" (Judgment in Bar Association Appeal 663/90, 691, 5154/91 Anonymous v. District Committee of the Tel Aviv-Jaffa Bar Association [62], at pp. 404-405). Not every silence of a normative arrangement regarding a particular issue is lacking in the matter of that issue. The silence of the norm speaks in several languages. Sometimes silence constitutes a "negative arrangement," that is, silence is an expression of a purpose that negates a certain order. This is "informed" silence (see High Court of Justice 4267/93, 4287, 4634 Amitai – Citizens for Proper Administration and Integrity et al. v. Prime Minister of Israel et al. [63], at p. 457). Sometimes silence constitutes a lack of taking a position on a particular issue, while leaving its regulation to normative systems outside that norm. But sometimes the silence indicates a deficiency. The creator of the norm built a normative wall but forgot to complete it (see Berlin, W. Canaris, die feststellung von lucken in gesetz 25(1983). The judge reaches the conclusion that there is a deficiency in a legal norm following interpretive activity (in the narrow sense). The judge interprets the legal text against
the background of its purpose. He concludes that the silence of the legal arrangement on a certain issue constitutes a deficiency in that issue:
"Interpretation is therefore a process that precedes completion. Only when the court is satisfied that the parties did not agree on the missing matter, and it formulates this conclusion within the interpretation of the contract, is it entitled to turn to the process of completion" (Friedman and Cohen, in their aforementioned book, vol. 1, at p. 270).
- Can a judge fill in a gap in a legal norm? The answer to this question varies in the different legal systems. It is derived from the tradition of the legal system. It is determined by its legal culture. Sometimes it is resolved by an explicit provision of the law. It is legal in Israel that the judge is entitled to fill in a deficiency in the legislation (section 1 of the Foundations of Law Law). In doing so, the judge interprets the matter of the legislation (interpretation in the narrow sense). He comes to the conclusion that the enacted norm is missing. It fills in the gaps. He adds another text to the engraved text, which complements it. This is a "supplementary interpretation," or interpretation in the broad sense.
- Can a judge fill in a deficiency in a contract? The answer of the Israeli legal system to this question is in the affirmative. I discussed this in one of the passages, noting:
"Sometimes there is no answer (positive or negative) to a question, which requires a decision, in the text itself according to its interpretation (in the narrow sense). In this situation, it is possible, in appropriate cases, to add provisions to what is stated in the contract, which are not found in it... In all of these, an existing contractual norm is not interpreted, but a new contractual norm is added. We are therefore interested in interpretation in the broad sense" (Civil Appeal 154/80 [28], supra, at p. 224).