In any event, whatever the case, even if I believed that there was an error in the concrete interpretation given to the agreement in the appeal, the further hearing was not intended to correct errors of this kind.
Judge
Judge S. Jubran:
I attach my opinion to that of my colleague Justice E. Rivlin.
As noted by my colleagues, Justice E. Rivlin and Vice President M. Cheshin, the purpose of the additional hearing was to re-evaluate the Apropim rule in light of the facts of the case before us.
I agree with the assertion that the Apropim rule did indeed pave its way and its implementation became part of the development of the Israeli legal system. Halakha has created a close harmonious and inseparable connection between the language of the text and the conduct of the parties and the circumstances of the conclusion of the contract. The interpretation combines both the language of the contract and the circumstances and it is not possible to separate the various factors. The act of interpretation has become continuous, so that it brings us to a single result.
As my colleagues have pointed out at length, the majority opinion in the Apropim ruling determined, inter alia, that if the subjective intentions of one of the parties differ from that of the other, there is no possibility of formulating a common subjective intention, and in such a case the contract will be interpreted according to its objective purpose. The objective purpose of the contract is:
"The goals, interests, and purposes that a contract of the type or type of contract that is concluded is intended to be fulfilled. The objective purpose is deduced from "the nature of the transaction that was entered into between the parties..." It is not a two-stage test in which the clear or unclear language of the contract serves as an evidentiary melting point, but rather a one-stage test, in which there is a constant movement from the language of the contract to its external circumstances..." [Ibid., at pp. 313-314].
My colleague Vice-President M. Cheshin notes in his opinion that he does not disagree with the principles of the Apropim rule and that there was no flaw in it, but in his opinion it was possible to moderate the rhetoric that established the rule, since he is of the opinion that the rule caused too broad the courts' intervention in the autonomy of the parties in shaping the content of the contract.