The purpose of the additional proceeding, therefore, was to re-evaluate the Apropim rule, its correctness, and the extent to which it is compatible with the foundations of the legal system used in our place.
- Indeed, in our case, a reassessment was made of the essence of the Apropim rule, which is reflected in the opinion of Deputy President Cheshin and Justice Rivlin. Both of them are of the opinion that the rule of Apropim on a machine stands, and there is no room to intervene in it and change it. According to Justice Cheshin, "we agree with the main points of the halakha" (paragraph 2 of his opinion). He adds that "the main thing is that we know and remember that there was no flaw in the Apropim rule, as it is in itself, even though it is possible to moderate the rhetoric that established the rule" (paragraph 53 of the opinion). In Justice Rivlin's opinion, the Apropim rule is a proper rule. According to him, "It allows the courts to carefully reveal the true intention of the parties, and to reach authentic and just results. A review of the case law and the literature written since the judgment was rendered reveals that the Apropim rule stands firm. Today there is hardly any dispute about it" (ibid., paragraph 12, and the long list of excerpts cited there). I, for myself, wholeheartedly agree with this assertion; The years that have passed have only strengthened the truth of the Apropim rule, and strengthened its conceptual correctness; they testify to the integration of the halakha not only in the overall conceptual fabric of the rules of interpretation, but also in practical life. It has become a criterion by which contractual relationships are built, and according to which other documents are interpreted according to the intentions of their creator. However, the passage of time has also signed, more than once, difficulties in the implementation of the halakha, which focus on disagreements regarding the relative weight that should be given to the various elements required for its operation.
- However, this additional hearing proceeding, which was supposed to stop, prima facie, in the examination of the Apropim rule itself, spilled over into the additional area that is tangential to it, which deals with the examination of the ways in which the rule is applied to concrete situations; application in general, and application to the concrete case that is the subject of this proceeding. Deputy President Cheshin examines alleged difficulties in the ways of implementing the Apropim rule, both on a general level and on the individual level in our case. He relates, as a rule, to "the wind that has begun to blow", as he puts it, from the Apropim Rule, which has motivated the courts to over-involvement in the content of contracts at the expense of the will and intentions of the parties to them, while harming the freedom of contracts and the stability and certainty required in this area. In order to deal with this phenomenon, he points to the proper way of weighing the various components of the Apropim rule, which, if properly implemented, will lead to the correct application of the halakha. The main purpose of this approach is to give priority to the will of the parties, as it is expressed in the written language, and as it arises from the evidence that was brought. In general, my colleague moves on to a detailed analysis of the vegetable growers case before us, analyzes the evidentiary data against the background of the Apropim rule, and reaches the conclusion that the determination of the appellate court in this court, which was given by a majority of opinions, was erroneous and that the method of analysis and the result reached by the minority judge in the appeal should be preferred. He notes that the majority opinion requested "to apply the spirit of the Apropim rule, a rule that is not in dispute – but the implementation went too far and led to severe interference in the contract entered into by the parties and their intentions, as emerged from the language of the contract and from external evidence presented to the court" (paragraph 7 of his opinion). Hence, he is of the opinion that the growers' petition should be accepted and they should be entitled to the compensation demanded by them.
My colleague, Justice Rivlin, explains at length the details of the way in which he interpreted the agreement in question against the background of the Apropim rule, and points out that this approach is consistent and does not contradict the law, as stated.
- I will admit the truth, because I find it difficult to walk in the side alley to which the further hearing in our case was diverted. The basic concepts are in our place, that the additional hearing process is intended to examine a principled legal precedent that has been adopted, which deserves to be re-evaluated because of its importance, difficulty, novelty, or the fact that it contradicts a previous decision. The power of additional hearing is rarely exercised and in exceptional and exceptional circumstances (Additional Hearing: High Court of Justice 3865/97 Antitrust Yona Yahav v. Edna Arbel [published in Nevo]; Additional Civil Hearing 1210/99 State of Israel v. Sheinbein, [published in Nevo]). Such a reappraisal means an insistence on the essence of legal law, the degree to which it is appropriate and integrated into the legal system and the basic principles underlying it, and the degree to which it merges into practical life. The additional discussion does not usually deal with questions relating to the methods of application and application of the basic legal rule, even where the process of implementation may be complex, and subject to, in itself, objections and disputes. Where the additional hearing process leads to the nullification of the law, to its change, or to its development and refinement, this may require a re-analysis of the specific data and a re-evaluation of judicial determinations made in connection with the individual case that stands in the background of the matter (cf. Case of Additional Criminal Hearing 4971/02 Zagori v. State of Israel, IsrSC 58(4) 583). However, where the proceeding leaves the legal precedent in place, including the rules of weight and internal balance built into it, it appears that the questions of its individual application and the ways in which it is applied in practice are a matter for the hearing and appeals courts. The methods of application of the rule of principle in the framework of the exercise of judicial discretion, the measures taken to weigh and balance its components, the determination of general criteria for this purpose, and their specific application to the concrete case – these matter are to be clarified in the trial court, and in an appellate court that puts its determinations to the test. I agree with the words of Vice-President Cheshin, according to which "a theory whose principles are correct, but it cannot be easily implemented, and like a proper theory whose implementation encounters practical difficulties" requires an investment of effort on the part of the legal system in order to ensure its integration into everyday systems. This adaptation is done, and it should be done, toe by toe, on the basis of portions from life that arise before us from time to time. In this way, in the ordinary courts, where the principle of legal precedent is applied, the means and rules of application are gradually shaped, and they develop over time and in response to the practical needs that arise from time to time.
It would seem that we are commanded to draw a clear distinction between the re-evaluation of an important legal precedent in principle in the framework of the additional hearing and the examination of the ways in which it is applied in practice to concrete factual situations, which are clarified in the trial courts and subject to appellate review. The obvious distinction between the criticism of the Halacha and the criticism of the methods of application of the Halakha, and its implications on the line separating an appeal proceeding from an additional hearing proceeding, was discussed by the Court in another hearing 7542/04 Ovadia v. Sigal Nahariya Ltd., by the Vice-President M. Cheshin ([published in Nevo], paragraph 9):