Judge
President A. Barak:
I agree.
H.N.S. 11
Vice President (ret.) M. Cheshin:
More than a decade has passed since the birth of the halakha known as the Apropim Rule (Civil Appeal 4628/93 State of Israel v. Apropim Housing and Development (1991) Ltd., IsrSC 49(2) 265), a rule that brought with it a real change – one might even say: a revolution – in the way they interpret and in the ways in which contracts are implemented. This important ruling was ruled by a majority of opinions – two justices against one – and although shortly after its ruling, the court was asked to hold another hearing on it in an expanded session, the request was rejected on the grounds that "the judgment does not express an innovative or revolutionary approach to the interpretation of a contract" (Additional Civil Hearing 2485/95 Apropim Housing and Development (1991) in Tax Appeal v. State of Israel, [published in Nevo]). Thus, the Apropim ruling became a settled ruling in Israeli law, and although over time everyone agreed that it was intended to change the rules that prevailed "not only in the interpretation of contracts but also in other issues such as the role of the court in the field of contracts and the place of the principles of freedom of contract and good faith in contract law" (G. Shalev, Contract Law – The General Part, 2005, 400; Shalev, contracts), the courts did not turn their heads back and did not return to discussing the halakha and examining its implications. "Today," in Shalev's words, Contracts (ibid., 425), the Apropim rule is "the most cited rule in the field of contract law..... (f) is the most important ruling in this area."
- We, too, like others before us, do not intend to quarrel either with the Apropim ruling as it was written, nor with the loss of the "two-stage doctrine" that prevailed before the Apropim affair. As we will clarify later on, we agree in principle with the tenets of the halakha. This is not our opinion with regard to the wind that began to blow from the halakha, to the breach of morality that the halakha invited the reader to do. We are not comfortable with the view – a view that the Applicants find a basis in the Apropim rule – that the courts are permitted in these and other circumstances to intervene in a contract that the parties worked day and night to draft, and lawyers examined every note and tag over and over again. We also find it difficult to accept a situation in which against the background of the circumstances of the conclusion of a written contract a court may find in the contract "ambiguity", whatever the language of the contract, and that by virtue of that "ambiguity", the court will impose an "objective purpose" on the contract and obligate the parties to an interpretation that stems from lofty "objective" principles that the court believes is correct and proper to control the contract even though they have no basis in their "subjective" consent. It seems to us that in the formulation of the rules of interpretation that were formulated in the Apropim case, the court moved away from its traditional role as an interpreter in the traditional sense of the concept of interpretation, and began to consider itself a party to the actual contract. We discussed this in the case of the Ramat Chen Synagogue Cooperative Society v. Sahar Insurance Company in a Tax Appeal (Civil Appeal Authority 3128/94, IsrSC 50(3) 281, 304), and this is what we said:
[] There are those who believe that the courts have stretched the rules of interpretation beyond the extent that they are appropriate; that in fact, the rules of interpretation have deviated from being rules of interpretation – in the legitimate sense of the term – and that in holding on to the axe of interpretation, the courts have deeply invaded the realm of substantive law – without saying anything and without being heard. It should be noted and emphasized that the criticism does not direct itself to the goals that the courts compare before their eyes, but rather to the ways (i.e., the techniques) in which they move towards those goals (emphases in the original – M. 8).
- We will not be extinct – how can we? – Because sometimes the court considers itself compelled by speech to intervene in a relationship that the parties have built for themselves in a contract that they have entered into between them: because the contract, or a stipulation thereof, violates public policy; when it finds to the court that one of the parties to the contract acted in a clearly bad faith; because a misformulation leads to the fact that the language of a contract does not reflect the true subjective intention of the parties to it. This is the wisdom of the law, this is the wisdom of the courts, which do not practice their ways according to strict rules in the sense of judging the mountain. From the outset, the law created with its wisdom tools of work – tools of thought – that could adapt themselves to different and strange systems. Binding priori norms in law have the flexibility to do justice. All of these principles and principles are correct and we will not give them up. Halacha Apropim gives expression to all these important principles in an orderly manner and with clean thinking.
- At the same time, when we read the Apropim ruling one by one, and when we meet on our way, one after the other, all those tools of thought that permit the court – moreover: they oblige the court – to intervene in these and other cases in the content of a contract as foreseen on the face of it, read: In a law that parties with autonomous will have made for themselves of their own free will, we find it difficult to escape the conclusion and impression that the main has become trivial and the trivial has become the principal; that the marginal and the exceptional have become exceptional; that the court makes itself, In retrospect, a dialogue between the parties to the contract; It is as if the court sat down at the negotiating table that took place between the parties to the contract, while making comments on the content of the contract and the ways in which it was drafted. And for the avoidance of doubts, we will add and emphasize: the Apropim rule as worded and worded does not sit the court at the negotiating table that is taking place between the parties in preparation for the conclusion of a contract. However, the cumulative weight of all those grounds that permit the court to intervene in the content of a contract – grounds that pass before us in a back column like Maron – together with the internal content and the strength of the grounds: the quorum and with it the content, create a heavy atmosphere of power and ability that the law gives the court to intervene in a contract that the parties have made for themselves, the power and ability given to the court to demolish the private home of the contractors.
- 5. The Apropim Rule – along with the heavy complements that Prof. Barak received in his book on the interpretation of the contract (A. Barak, Interpretation in Law, Interpretation of the Contract (Volume Four, 2001-2001), especially 481 onwards; Barak, the interpretation of the contract) – all of these constitute in fact a complete code of conduct in which a court is supposed to give the driver himself the time a contract is placed before him for its interpretation. In our opinion below, of course, we will not be able to encompass the codex around it, and we will concentrate ourselves, mainly, on the written contract and the relationship between it and the evidence outside of it as an instrument for interpreting it. And although we will deal mainly with this subject, we would like to ask that what we have said below also seem to apply to the other tools mentioned inthe Apropim Rule. Our opinion, which follows is primarily concerned with outlining guidelines – at times: establishing models – which are intended to reconcile the lofty rhetoric with the application of the law and its demarcation in everyday life, while clarifying the limits of the power and authority that the Apropim Rule and its supplements seek to grant to the courts to intervene in the autonomy of parties who have established for themselves a private law in the conclusion of a contract. All of this will be done, both with regard to the interpretation of the contract and with regard to the introduction of "objective" values into the contract, values that the parties did not think of at all and were not even aware of.
- Indeed, many – even those who support the Apropim rule – are not comfortable with the way in which the law has been perceived in the daily life of the law; that the spirit of the law has appropriated the court powers that go beyond the realm of interpretation in the traditional sense, and in the process undermined the certainty and confidence that they are so important to those who enter into a contract between them. It is not for nothing that many of those who practice law – judges, lawyers and legal scholars – have a sense of uncertainty accompanied by the fear that a written and signed contract – as written and worded – can no longer guarantee the rights of the parties, since today a court may interpret it in its own way, and that any result (as it were) can be achieved through interpretation. Criticism in this vein was voiced by Prof. Daniel Friedman in his article "Interpretation of the Term 'Interpretation' and Comments to the Apropim Judgment" (HaMishpat, vol. 8, 5763-2003, 483, 488; Friedman, The Mishpat), and this is what he said:
... In principle, the Apropim rule is correct. There is no reason to distinguish between the contract and the circumstances... It is also true that the interpretation must take into account all the relevant considerations, and they cannot be artificially interrupted by a single step. Despite this, the judgment in the Apropim case raises considerable difficulties. These difficulties do not lie in the halakha itself, which is correct on its merits. The difficulty lies in the rhetoric of the judgment and the way in which the rule was applied in the specific case. The combination of these factors created a sense that there was no clear contract, that everything was open, and that any outcome could be achieved through interpretation.