The objective purpose is, therefore, but a tool that assists in the interpretation of a contract, and it itself is subordinate to the intention of the contractors.
- This is the law in general, and it is also the law in contracts that a public authority enters into with the individual. It is true that in some authority contracts we encounter difficulties in revealing the subjective purpose (his Contracts and Tenders, 31), but these difficulties of evidence will not detract from the primacy of the subjective purpose in relation to the objective purpose, and even in contracts of this type we do not tire of looking for the subjective intentions of the parties. See more and compare: Barak, Interpretation of the Contract, 392.
- All these rules and principles, no one shall dispute them, neither their correctness nor their formulation. But the theory is for itself and everyday life for itself. A theory whose principles are correct, but it cannot be easily implemented, and like a proper theory whose implementation encounters practical difficulties, it should be required, both of them, with the help of an adapter, a quasi-transformer who will adjust the power of the current to the system that the current is intended to serve, a kind of parachute that will land the theory softly over the legal system and enable its integration into everyday systems. What I mean, first and foremost, is that it is a burden that is imposed on us – and a burden that is not easy – to be constantly aware and alert to the leading principle, namely, that until we are required of the objective purpose of a contract, the principle of good faith and the presumption by virtue of the law that are supposed to determine how a certain contract will be interpreted, we must do everything in our power to try and get to the bottom of the mind of the parties to the contract, whether in writing or from other legitimate sources. Indeed, knowing that the objective purpose awaits us from the other side of the door and invites us with a wink that we will join our arm in hers; and knowing that the objective purpose is beautiful and clean in wonderful; There is a great temptation not to delve deeper into the subjective purpose and to fall into the net of the objective purpose. This is the spirit of Aprop that I am so afraid of, and which I sought to stop in its way.
- Thus, since we know that even in contracts of a superior authority the subjective purpose is superior to the objective purpose, we will further know that the same rule of interpretation that my colleagues wish to adopt, according to which in authority contracts "a contradictory presumption must be established according to which the public authority acts fairly, reasonably, egalitarily and in good faith, in accordance with its status as a trustee of the public and in accordance with the rules of administrative law" (paragraph 13 of the judgment of my colleague Justice Rivlin). Because we will apply the same rule of interpretation only after the court has done everything possible, to its best and in its ability, to identify the subjective purpose, and its method has not succeeded.
Interpretation of Law and Interpretation of Contract
- We will all agree that the interpretation of a contract is not the same as the interpretation of the Herut Law, and our main intention is the system of checks and balances that will prevail in one case and in the other case with regard to the relationship between the "subjective" purpose and the "objective" purpose of the text to be interpreted. See, e.g., Barak, Interpretation of the Contract, 54, 388 ff., and the references therein. In addition to all the other obvious differences between the Herut Law and a contract – the noble differences in the ways in which these texts are interpreted, it is appropriate to consider the constitutional and doctrinal aspect that assigns the courts one interpretation seat in one case and another interpretation seat in the other.
- A contract is the joint creation of the contractors. The law has granted the contract-holders personal autonomy to enter into a contract between them (of course, as long as they do not do and do not intend to do an act that violates public policy), and by this power they legislate for themselves. According to the nature of things, the court is an external body to the system, and it has no part or inheritance in the process of creating the contract. The court was like a bystander, and its role – later on, when the contract was placed on its desk, to interpret it – was essentially a declarative one. As far as the law is concerned, the process of its creation is – so far as the court is concerned – like the process of creating a contract. Even in the case of a law – as in the case of a contract – the court was like a bystander. The bakery of the contractors was like the pastry house of the legislature: the court has no hand or leg in the creation of the law, just as it has no part or inheritance in the creation of a contract. See and compare: Additional Civil Hearing 4757/03 Real Estate Appreciation Tax Administration v. M.L. Investments and Development Ltd., [published in Nevo]; High Court of Justice 9098/01 Yelena Genis v. Ministry of Construction and Housing ([published in Nevo]; at paragraph 31 of my opinion).
Thus, in the creation of the text – the text of a contract and the text of a law – this is not the case in the process of interpreting it.
- The constitutional doctrine accepted in our place assigns the courts a special place in the system of government, and one of their main functions is the role of interpreting the Freedom Law. This role of interpretation is very significant, and in essence, constitutes an essential procedure in the overall constitutional system. The court is the "authentic" interpreter of the law, and in this way it actually participates in the creative process. As it was said in the M.L. case. Investments and Development in Tax Appeal (above):
The legislature is likened to a bakery. It is the owner of the bakery – and he alone – who will determine what will be baked and when it will be baked, but once the pastry comes out of the oven, the baker's job is finished, and it is not he who will determine what the pastry tastes like. Chazal have already taught us that the seal does not testify to its pulp. The parable will be self-evident: it is the court – and only the court – that will determine the taste of the pastry, it will determine the interpretation of the law.