The approximate execution doctrine can sometimes act like a sword in the hands of the injured party and will serve as a cause of action in his hands (see Friedman, p. 177). Sometimes the doctrine may serve as a shield against the violator, as happened, for example, in other municipal applications 2686/99 Eisman v. Kidmat Eden, IsrSC 55(5) 365 (2001), in which the performance was almost conditional on the offending party paying the adjusted price, in order to maintain the contractual equivalence between them.
- The court will tend to look for ways to realize the basic intention of the parties, Wherever the contract can be enforced. However, the court will be careful not to set new terms that change the nature of the contract or a major part of it. This is a matter of "approximately" or "approximately", but not of drawing up a new contractual arrangement, that the parties did not have in mind when concluding the contract. A significant deviation from the original performance, which offers a completely different "product" from the agreed one, will not be considered approximate performance (Judge's remarks M. Naor Other Municipality Requests 7379/06 G.M.H.L. Construction Company 1992 in Tax Appeal v. Yishai Tehulian et al. (10.09.2009) (Hereinafter: "The G.M.H.L. case.").
In addition, other tests can be used on the test of the different product proposed in the judgment in the case of G.M.H.L. Friedman proposes to use the evidentiary test for the test of the fundamental breach set forth in section 6 of the Pharmaceutical Contracts Law. In other words, he proposes to apply the doctrine where the contractual lack does not constitute a fundamental breach of the agreement. An alternative test proposed by Friedman relates to the question of whether the change substantially deprives the injured party of what he was entitled to expect under the contract. If the answer is no, in such a case it is appropriate to apply the doctrine of approximate existence (regarding the various tests, see: Friedman, p. 179).
- The cases in which a court found to grant an order for execution are varied and varied. Thus, when a landowner sold part of a unit of land, but it was not possible to transfer that part separately and in its entirety, since a condominium was registered and parts of the area became joint property, the court ordered that the agreement be fulfilled and that an apartment be registered in the name of the plaintiff and the remaining part of the land in the musha'a (See: Civil Appeal 250/63 Aaronson v. Friedman, IsrSC 17 2488 (1963) (hereinafter: "The Aaronson Matter")). This is the case in a case where apartment owners in a condominium waived building rights through a linkage mechanism, but it turned out that the mechanism was not applicable. Therefore, the court ordered the obligation to be fulfilled in a different way when it saw the mechanism of linkage as only a means to achieve a goal, and therefore a different performance is possible (see: Klein Estate).
In addition, when the parties have expressed their opinion that it is not possible to deviate from the provisions of the agreement, their consent must be respected and the approximation should not be ordered. On the other hand, if the parties agreed between themselves on performance different from the original contract, this should be seen as a mutual change that creates a new agreement (see: Friedman, at p. 180).