Taking into account the above, the claim that the council has rights in the land cannot lead to the blocking of Hajj's claim for the approximate execution of the transaction.
Execution of a competition of rights between Hajj and the council
- Israeli law recognizes the doctrine of "approximate execution" (Cy Pres) of a contract, which allows the court to order the enforcement of a contract with minor and non-fundamental changes, when its precise performance is not possible, in order to realize the main intention of the parties. According to the case law This doctrine is anchored in the principle of contractual good faith and in the clause 4 of the Contracts Law (Remedies for Breach of Contract), 5731-1971 (hereinafter: "Pharmaceutical Contracts Law"), However, it does not allow for the drafting of a new contract or a material change in its character. Thus states Section 4 The Drug Contracts Law:
"The court may condition the enforcement of the contract on the fulfillment of the obligations of the injured party or on the assurance of their fulfillment or on other conditions required by the contract according to the circumstances of the case."
This doctrine was absorbed into Israeli law from English common law, by means of section 46 of the King's Order in Council on the Land of Israel, 1922, and was adopted in Supreme Court rulings even before the enactment of the Contracts and Medicines Law, and the Contracts Law (General Part), 5733-1973 (hereinafter: the "Contracts Law") (see: Civil Appeal 79/49 Parent v. Yehudai, IsrSC 375, 387 (1950); Civil Appeal 672/81 Colleagues of the Jerusalem Hotel v. David Tyke, IsrSC 40(3) 169 (1986); Civil Appeal 4176/20 Dror Cohen v. Golan in Tax Appeal (May 30, 2023); Aharon Barak, Interpretation in Law - The Contract (2001) | Chapter Five: The Limit of Interpretation in Contracts).
- Although the new contract laws do not include an explicit arrangement of the doctrine, it continues to apply in Israeli law. Some see it as anchored In section 4 The Contracts Law has remedies, which authorizes the court to condition the enforcement of the contract on conditions necessitated by the circumstances of the case. Others believe which is part of the principle of innocence The Permanent Heart In section 39 to the Contracts Law, which governs the manner of fulfilling obligations and exercising rights under a contract. Today it is common to think that this doctrine is anchored in In the section 4 The Contracts Law has remedies and is reinforced by the principle of good faith (See: Daniel Friedman and Nili Cohen Contracts (2011) | Chapter 35, p. 178; Hereinafter: "Friedman"). Other Municipality Requests 11965/05 Klein Estate v. Sharon (Nevo, August 27, 2009) (Hereinafter: "Klein Estate") was ruled by the judge A. Hayut Regarding the origin of the idea of approximate execution:
"The main idea underlying this doctrine is that one should strive, as much as possible, to fulfill the contract and realize the purpose underlying it, even if it becomes clear when the time comes for its execution that it is not possible to fulfill it as written and worded. The approximate performance doctrine, as well as the principle of good faith, allow the court in such a case to make certain changes in the ways in which the contract is performed in order to fulfill it, provided that the court acts in this matter with the necessary caution so that it does not find itself drawing up a new contract between the parties whose terms fundamentally change the nature of the original contract."