See and compare: Mautner, 48 ff., who concludes that "the courts must assume that the parties generally intended to give the language they used the necessary natural meaning in view of the circumstances in which the parties acted" (ibid., 53). Compare more: Shalev, Contracts: "It is clear that even today 'the starting point for any interpretation... The process of contractual interpretation begins with the language of the contract, and the circumstances may confirm, but also contradict, the conclusions implied by this language" (ibid., 424).
- We will also join this path of Halakha Apropim (originally). Knowing that "the main principle in the interpretation of a contract is the intention of the parties to it" (Skelly v. Doran, 818) – i.e., the discovery of the common subjective intention of the parties – we can only agree that on the way to discovering the intention, the interpreter must begin the process of interpretation in the language of the contract, but he should not limit himself to the written language only. True, in general, the language of a contract, the language of human beings, is supposed to express the consent of the parties – which is therefore superior to the language of other evidence – but it is possible that the language will not fully reflect the intention, and therefore it is the judge-interpreter who may require additional evidence that will indicate the subjective intentions of the parties at the time of writing the contract. Indeed, we have always known that the interpreter must consider the language and the circumstances together: both indicate the intentions of the parties and indicate their common intention at the time of drafting the written contract. We discussed this in the case of Skelly v. Doran. This is what we wrote on the same matter (ibid., 818, in continuation of what we quoted in paragraph 10 above):
... The boundary line between the "contract" and the "circumstances" of the drafting of the "contract" may be the thinnest, and the domains suck from each other. In the interpretation of a contract, we do not occupy ourselves with purely linguistic research, and we know that the interpretation directs itself to the intentions of the parties. However, the opinion of the parties is not an abstract and theoretical concept, and it is, inter alia, the product of the circumstances in which the contract was made. The same concept, the same box, may have different meanings in different contracts and in different circumstances; Circumstances create a turn-of-the-way thought and intention; An intention gives rise to a contract; And in order to find an intention – and the opinion of the parties – it will be possible for us to address the circumstances as an important factor in the way of clarification and investigation. It is important that we remember these words, and they are for the purpose of the interpretation of a contract – of any contract – and for our purposes we are here.