) Law) and by dispositive provisions in legislation (such as sections 41, 44, 45, 46 of the Contracts (General Part) Law). In the absence of an external supplementary provision, the deficiency is filled by the principle of good faith (section 39 of the Contracts (General Part))" (Civil Appeal 719/89 [43], at p. 312).
In a similar vein, my colleague, Justice Matza, referred to "the principle of good faith as a complementary norm to the fulfillment of a deficiency" in a contract (Civil Appeal 479/89 [8], supra, at p. 845). Ben-Natan also refers to this possibility in his article on the issue under discussion (Ben-Natan, ibid., at p. 590). A nice question is -
I would like to leave it for consideration – whether the filling in the gaps by virtue of the supplementary interpretation precedes the completion by virtue of custom and in accordance with supplementary provisions of the law (of a dispositive nature) enshrined in legislation: see, for example, sections 41, 44, 45, 46 of the Contracts (General Part) Law, or if it comes only after the supplementary (if it occurred), according to custom and by virtue of supplementary provisions of the law, did not fill in the gaps.
- What does the principle of good faith express with regard to the completion of a deficiency in the contract? The normative message that arises from the principle of good faith regarding the completion of a deficiency in the contract is that the contract must be completed in a manner that fulfills the purpose (subjective and objective) of the contract. The contract must first be opened with an attempt to complete the contract according to the parties' common subjective purpose ("the parties' intentions"). Farnsworth noted this: "If the court is persuaded that the parties shared a" ,common expectation with respect to the omitted case The court will give effect to that expectation, even though"... The parties did not reduce it to words .(305 Farnsworth, supra, at) If this attempt fails – since the parties' common subjective purpose ("intentions") is unknown, or it is not relevant to the problem that needs to be decided – the contract must be completed according to the objective purpose of the contract. As Farnsworth points out: "However, if the parties expectations were sighificantly different or" if one party had no expectations, the court will substitute " ... For the subjective test of shared expectation, an objective test, in both cases, the standard of fair parties to the contract must be adhered to. Good faith is not intended to change the contractual arrangement. He did not come to make a new contract for the parties. Its purpose is to make up for what the parties have lacked. To this end, he continues, the lines of action that the parties have determined, according to their internal logic. For this purpose, the court uses the criteria and basic assumptions that the parties themselves have determined. It seeks to uphold the contractual balance that the parties have established between them. Regarding the filling of a deficiency in the valuation of a contractual obligation, Justice Matza noted:
"The reliance on the principle of good faith as a supplementary norm is permissible even with regard to the attribution