Admittedly, when examining the intentions of the parties to a written contract, our first stop is in the same letter that the parties agreed upon and created, but this is not the last stop in our journey to discover their common intention. Intention, common intention, intentions – and they are the area of our inquiry in the interpretation of a contract – are all abstract concepts that are not tactile. Although a person's state of mind – as we have already learned – is a fact just like the state of digestion in his body, the correctness of this statement, in and of itself, does not add to the opinion as to the ways in which a contract is interpreted. We will know that since we aspire to clarify the scope and scope of the interpretation of that abstract concept – the intentions of the parties – we will not be able to limit ourselves only to the literal interpretation of the contract.
- It seems that everyone will agree that a proper procedure for the interpretation of a written contract is – fundamentally – a proceeding in which the intentions of the parties are revealed both in language and in the circumstances, while the language is given precedence over the circumstances. Instead of talking about a contract that was entered into orally, we will find it difficult to distinguish between the "contract" and the "circumstances." The contract is a product of circumstances, and since everything is done orally, we will not easily know where to draw the line between the "circumstances" and the "contract", at exactly what moment Anson's barrel of gunpowder exploded. The "circumstances" and the "contract" were like a dog and a wolf or like blue and a square before dawn. The law differs in circumstances that have been formulated to be a written contract. Indeed, a contractor who has assembled himself as a reporter, the reporter distances him from the "circumstances." Writing was, on the face of it, a living force that carried itself, a living organism that did not need and was not required to nourish itself from sources outside of it. However, things are not as they appear on the surface. A contract, any contract, a membrane envelops it – a thin membrane or a thick membrane – and there can be a process of osmosis between the "contract" and the "circumstances" that gave rise to it. This is what was ruled in the Apropim case, and this is what was ruled in the case of Skelly v. Doran, and this is a phenomenon that we cannot deny. The question in every case and in every matter is nothing more than a question of measure – let us remember that proportionality is the magic word of our time – that is, to what extent the "circumstances" will absorb into the "contract", to what extent will the membrane that surrounds the contract be a thick membrane that the "circumstances" will find difficult to penetrate into the "contract". Here, as we shall see below, it is possible and appropriate to distinguish between types of written contracts. But we won't get ahead of the latter.
- As long as proportionality is maintained, everything is benign with me, there is no burst and no screaming. However, in practical life, when the barrier that the two-stage method placed between the language of the written contract and the "circumstances" was removed, and unlike its original formulation, the Apropim rule was interpreted as placing the language of the text and the circumstances of the conclusion of the contract on an equal footing, and thus the language was pushed out of the status of primacy that it had acquired and overarching principles such as the principle of good faith took its place. We cannot lend our hand to this path, which is nothing but a distortion of the law of Apropim.
- Let us remember, let us not forget: the parties and their representatives are the ones who drafted the contract and they are the ones who determined its language, assuming that the language is clear language that reflects their agreements; And since the parties to the contract are reasonable human beings, we must assume that they have done their best to clarify in their own language the boundaries of their mutual rights and duties. We all know – especially the lawyers who are busy drafting contracts – how much toil the parties and their representatives put into drafting a contract; How laborious are lawyers who are meticulous in every word and every phrase, every note and every tag, every comma and period; How many meetings will be held, how many hearings will be held, how many arguments will there be on almost every paragraph, almost every sentence; A few drafts will be exchanged before the parties and their counsel reach Emek HaShaveh and draft an agreed-upon contract. So much so in "medium" contracts, all the more so in contracts that revolve around millions of dollars. Knowing all this, can we take lightly the language of the contract and claim that it is worth the "circumstances"? Because the written contract should be interpreted according to the circumstances? Because the circumstances will interpret expressions in the contract? Can we seriously say about these contracts that the language is never "clear"? Because it does not necessarily express the will of the parties, and therefore in the interpretation of the written contract the court is not necessarily bound and bound by it?
With regard to the interpretation of a contract, even though in theory – at a high level of abstraction – there is no distinction between a contract that has been worked on for weeks and months and a contract written with a single draw, and that the law of the two is the same; nevertheless, we cannot accept this instruction for its application in practical life. Indeed, even if we include circumstances in the language of the text, such as the law of Apropim, this eruv will not weaken the status of language as a central tool of interpretation. If this is the case, as a rule, all the more so in the language of a contract that the parties and their representatives have been meticulous for many hours. The language constitutes an explicit external expression of the parties' will and intention; As a rule, it is equal to every soul and is accepted by all; Hence the inner strength and power that is hidden in it. In the Burstein case v. State of Israel (Criminal Appeal 7757/04, 59(5), 218) we spoke of the relationship between language and purpose in the context of the interpretation of a law, and it seems that some of what we have said there are also appropriate for our purposes now: