If we do not accept the approach that a declarant on behalf of the state has preference over a declarant on behalf of the vegetable growers, then what is the evidentiary significance of not investigating the affidavits? It is not possible to give a general answer to this question that will suit the circumstances of each case. However, in our case, since the declarants and the former Minister Shochat were involved in the matter of the contract on behalf of the State, in my opinion, as stated, the failure to investigate them in this case acts against the position of the State.
- If, on the other hand, we leave aside all the evidence external to the contract and focus only on the written contract, then as my colleague Justice Rivlin noted in the judgment in the appeal, its reading pulls "to some extent" in the direction of the interpretation of the vegetable growers, and this, in my opinion, is sufficient to tip the scales in their favor.
- Therefore, if my opinion had been heard, without deviating from the Apropim step, and since we had reached this point, and we had heard arguments regarding the interpretation of the contract, I would have accepted the petition of the vegetable growers.
Judge
Justice D. Beinisch:
I agree with the judgment of my colleague Justice E. Rivlin and I agree with the conclusion reached on his behalf. Before I formulated my opinion, I had before me the opinions of Justice Rivlin, Vice-President M. Cheshin, and Justices A. Procaccia, A. A. Levy and M. Naor; therefore, I see only a few words to add.
A decade after the Apropim legal rule came into our world, my colleague Vice-President M. Cheshin sought to re-examine this important and central ruling, and to re-evaluate it against the background of the facts of the affair before us. As emerges from his comprehensive opinion, he saw fit to do so because of the manner in which the rule was applied during the years of its application, and in view of the fact that it was not tested by an expanded panel of this court.