Indeed, the language of the contract against the background of the context in which the words were written or said, constitutes important evidence in tracing the intentions of the parties. The "sense of clarity" that arose at the beginning of the reading of the contract in light of its general context, which testifies to the intuitive meaning of the words, is important. My colleague the President noted this:
Within the scope of the subjective purpose, normative preference is given to the intention that arises from the ordinary and natural language of the contract, over the intention that arises from its unusual language or external circumstances. 'The presumption is that the purpose of the contract will be realized if the language of the contract is given the usual meaning known to it in the language used by the parties. The burden is placed on the party claiming special significance' (Judgment inAdditional Hearing 32/84, supra, at p. 274); 'It is presumed that the ordinary meaning of the language chosen by the parties in the contract is intended to reflect what was agreed between them, and the fulfillment of the agreement between the parties is also the purpose of the contract' (Justice Or, Other Municipal Applications 779/89, supra).
(Apropim, supra, at pp. 313-314 and see also there, at p. 229; A. Barak, Purposeful Interpretation in Law (2003) 387).
However, the "sense of clarity" created in the empty space is liable to be misleading (Sussman, in his aforementioned article; M. Mautner, "Judicial Intervention in the Content of the Contract and the Question of the Continued Development of Israeli Contract Law," Iyunei Mishpat 29 (2006) 17, 48-49). In the same way, a clause in a contract that on the face of it is perceived as clear, may appear difficult after examining the context and circumstances in which it was written. Just as there is no dispute that a party to a contract that insists on its literal meaning, the "dry letters" in the language of Justice Elon, while ignoring the spirit of the contract, acts in bad faith, so we do not tend to sweepingly ignore the context and circumstances surrounding it (see: Civil Appeal 391/80 Laserson v. Shikun Ovdim, IsrSC 38(2) 237, 264; Civil Appeal 1395/91 Winograd v. Yedid, IsrSC 47(3) 793, 800; A. Barak, Interpretation in Law – Interpretation of the Contract (2001) 221-222; D. Friedman and N. Cohen Contracts (2004, vol. 3, chapter by D. Friedman) 233-235, 245-246 and Prof. Friedman's article published in Contracts(Vol. 3): D. Friedman, "For the Interpretation of the Term Interpretation and Comments to the Apropim Judgment," Mishpat 14 (2002) 21, 24).
- The interpretive proceeding, as stated, is nothing more than an attempt to trace the intentions of the parties. For this purpose, the court is required to consider the various pieces of evidence brought before it and attributes various weights to it (see: Apropim , supra, at p. 301). The weight to be attributed to the intuitive meaning that arises from the reading of the contract may vary between different categories of contracts, and depends on the circumstances of the concrete case. At the same time, the weight to be given to circumstances outside the written contract may also change. Thus, for example, there is no prenuptial agreement between spouses as a contract for the sale of an apartment. There is no contract for the sale of an apartment as a contract between businessmen who enter into recurring transactions (see: Mautner, in his aforementioned article, at pp. 48-57; Friedman, in his aforementioned article, at p. 26). Closing the court's door to external evidence and limiting it to the written contract alone is liable to block its eyes from seeing the true common intention of the parties when they entered into the contract, and lead it to a misunderstanding of the nature of the engagement – all of this, within the scope of striving to locate the subjective intentions of the parties.
Thus, the language of the contract is the receptacle of the intentions of the parties, and therefore, it constitutes evidence – sometimes the main evidence – of their common intention. As stated above, it is not possible to attribute to the contract an interpretation that is inconsistent with its language. Therefore, the court must examine back and forth the language of the contract and its external circumstances, and subject to the contradictory presumption that the purpose of the contract is that which arises from the ordinary language of the contract, to locate the intentions of the parties. The strength of the presumption may vary, as stated, between different categories of contracts and according to the circumstances of the case. "After the interpreter has formulated the (joint) intentions of the parties, he examines whether this intention is implied – that is, it has an anchor – from the contract. If the answer is in the affirmative, the contract will be interpreted according to this intention, which was used in its formulation in a mixture of data coming from and outside the contract" ( Apropim , supra, at p. 312; see also ibid., at p. 314).
- I would like to emphasize: we are dealing with subjective interpretation. In this framework, the court must do everything in its power to trace the joint intention of the parties and determine what the purpose of the engagement between them was as far as they were concerned, i.e., what their common desire was. When the parties arrive at the courtroom, after a dispute has already occurred between them, each of them claims, naturally, that the common purpose of the contract was different. At the end of the trial, the judge must decide between the parties, and determine what their common intention was at the time of the conclusion of the contract between them. In cases where it is not possible, in any way, to clarify the subjective purpose, the court has no choice but to turn to the objective purpose of the contract. This was discussed in the judgment that is the subject of the petition, my colleague the President:
From a theoretical point of view, the subjective purpose has the upper hand... But from a practical point of view, the objective purpose has the upper hand. The reason for this is pragmatic: it will usually be difficult for the court to find an intention that is common to both parties.