VIII. Latest, the alternative argument, according to which even C.A.L. was exempted from the first payment of ILS 5 million, was still liable to the other three, based on the plaintiffs' interpretation of the agreement, has nothing to rely on.
- I will clarify relatively briefly, since the matter is so clear that it is highly doubtful that they would have even reached the level of lengthy litigation if it had been discussed for a lower consideration.
- Interpretation - with a focus on the language of the agreement
- Section 25(a) The Contracts Law (after Amendment No. 2 to the Contracts (General Part) Law, 5733-1973, of 2011, which is relevant to the agreement, which was concluded in 2015), provides: "A contract shall be interpreted according to the intentions of the parties, as it is implied in the contract and the circumstances of the matter, but if the intentions of the parties are explicitly implied by the language of the contract, the contract shall be interpreted in accordance with its language". The purpose of the section as drafted is "Establish rules of interpretation for contracts that will significantly increase legal certainty and ensure maximum adherence to the agreements that existed between the parties prior to its conclusion(See H.H. Knesset Wages for Work with Registrar Authority 335, 198; S.H. Civil Appeal 2273, 202)).
- Accordingly, it has been held in case law more than once that The language of the agreement is the starting point for any interpretive proceeding, and given clear language that indicates the intentions of the parties at the time of the conclusion, it has precedence in the interpretive proceeding (And see Civil Appeal 1536/15 Paz Oil Company in Tax Appeal v. Hawassa Gas Station Ltd., para. 46 (February 8, 2018); Civil Appeal 841/15 Northern Panorama Construction Company in Tax Appeal v. Anonymous, para. 10 (May 23, 2016); Civil Appeal 7186/15 Burstein v. Shikun & Binui Solel Boneh Infrastructures Ltd., Verse 17 (September 3, 2019)); Certainly, the language of the contract delimits the boundaries of interpretation, so that it is not possible to attribute to the contract an interpretation that is inconsistent with its language. If the intention of the parties is explicitly implied in the language of the contract, the contract shall be interpreted in accordance with the plain meaning of its language, i.e., in accordance with the simple, ordinary and natural meaning of the language of the contract (and see Civil Appeal 8080/16 Shahaf Pillars in Tax Appeal v. Lavrinchuk (8.8.2018); Gabriela Shalev and Effi Zemach, Contract Law (2019), Chapter 17).
- The rationale regarding the supremacy of language has also been clarified more than once: "... No one has - and should not - have the ability to impose on the courts, and on society as a whole, completely unnecessary litigation costs by writing agreements that do not conform to the agreement..." (Civil Appeal 6652/19 Expo Management in Tax Appeal v. Shoham Shamir Investments and Finance in Tax Appeal (12.6.2022); After all, "... There is no justification in the usual case for the court to try to "guess" their intention..." (and see Civil Appeal 9025/17 ATS Investments Inc N. Segal Group GmbH and Co.KG Dresden, (19.2.2020)).
- This is especially true when it comes to business contracts that were drafted by someone with legal expertise, with careful attention and careful consideration of the details (And see Additional Civil Hearing 8100/19 Bibi Dirt Roads and Development in a Tax Appeal v. Israel Railways in a Tax Appeal (19.4.2020)). Therefore, it is presumed that a party to a business contract should know "that his purpose and intentions must be expressly expressed in the contract he signs; and that it will not hear arguments that the signed agreement does not reflect, as it were, the intention or purpose of the parties" (and see Civil Appeal 1521/21 Bluegreen Water Technologies in Tax Appeal v. Oris Advanced Materials Ltd., 8.3.2023). The court will tend to treat a business contract as a 'closed contract', i.e., an exhaustive contract whose details are clear and clear and do not require interpretation, inter alia, in light of the importance of creating and maintaining contractual certainty that joins other rationalities, as I also mentioned above: "A closed contract, the terms of which are detailed in detail in a long document, which is usually drafted by lawyers experienced in writing agreements, has a substantial-business purpose. Alongside this purpose, a closed contract has another, no less important purpose, called contractual certainty. This certainty reduces the cost of transactions, creates business security, and assists in raising capital from financial institutions and the general public..." (and see Civil Appeal 7649/18 Bibi Dirt Roads and Development in a Tax Appeal v. Israel Railways in a Tax Appeal (November 20, 2019) (hereinafter: The Bibi Roads Affair), in the opinion of the Honorable Justice Stein).
- Contrary to the plaintiffs' claims, an examination of the agreement shows that its language is clear and unequivocal. The plaintiffs' forced attempt to locate flaws in the language and on the basis of them to challenge the language of the agreement is liable to be rejected. In any event, and even more so in the continuation of the simple language of the agreement, which indicates the intentions of the parties, is in any case consistent with the external circumstances in a manner that leads to the same conclusion.
- The contractual array between the parties, the formulation of the agreement and the relationship between the parties clearly indicate that this is a case in which the language of the contract must be adhered to
- The conclusion of the agreement on November 29, 2025, including the Mega Terms, preceded lengthy negotiations that lasted many months, at least from July 2015. In this framework, 11 drafts were replaced. The parties to the agreement are: "Large and professional companies in their field, and they will be represented by the best lawyers in Israel." (See para. 26 of Mr. Yaniv's affidavit). The evidence shows that the negotiations involved teams that included not only lawyers from within the companies but also external legal advisors (as stated by Adv. Karazi-Goff: "I handled the representation of the plaintiffs (together with the team that worked alongside me at the time) in all matters relating to the legal aspects of drafting the agreement with the defendant's attorney..."And specifically, because the drafts were the work of "A legal team that I was trusted with" (and see paragraphs 2 and 6 of the affidavit). Alongside the jurists, senior officials from the companies involved sat at the negotiating table ("Mr. Yaniv: ... I was the chairman of Dor Alon, and naturally it is clear that as the chairman of Dor Alon, some of the sellers were involved, and after that I was already the CEO of Blue Square, and then I was a partner in internal discussions with us regarding the negotiations." (and see transcript at p. 28, paras. 8-11)); Business Factors ("... It appears that there are substantial gaps, which in my estimation are mostly business gaps, and I suggest that the business entities go back and talk to each other, before we, the lawyers, continue our work...(and see an email sent by Adv. Niv Polani, who was the VP of CAL and the Chief Legal Advisor during the relevant period of the lawsuit (hereinafter: Polish Lawyer) dated September 8, 2015, which was attached as part of Appendix A1, p. 66 to Mr. Yaniv's affidavit); And, "We also adhere to the efficiency measures and at the same time transmit the draft to the consideration of the business entities in our company, as well as the Discount entities, and therefore the draft is subject to comments/reference from them.(and see an email from Adv. Polani dated November 4, 2015, which was attached as part of Appendix A1, p. 194 to Mr. Yaniv's affidavit); and many other professional factors (see, for example, the economic examination conducted by Deloitte, an accounting firm that provides financial consulting services).
- The negotiations on the text of the agreement itself began with the submission of the first draft of the agreement by C.A.L. on August 13, 2015 (see Appendix A1, p. 34 of Mr. Yaniv's affidavit). As part of this draft, the Mega Terms were drafted for the first time in a certain way that did not differ significantly from its final version. In the framework of the second draft of the agreement, dated August 26, 2025, the terms of the agreement were slightly changed (and see Appendix A1, p. 54 of Mr. Yaniv's affidavit) at the request of the plaintiffs. C.A.L., for its part, accepted the changes made by the plaintiffs in the two aforementioned clauses and sent a third and updated draft of the agreement on September 8, 2015 (and see Appendix A1, p. 72 to Mr. Yaniv's affidavit). The additional and final change to the terms of Mega was requested in the framework of the fifth draft of the agreement, which was transferred from the plaintiffs to K.A.L. on October 8, 2015 (and see Appendix A1, p. 110 to Mr. Yaniv's affidavit). C.A.L. also accepted this change and on October 18, 2015, sent the plaintiffs a sixth and updated draft of the agreement (see Appendix A1, p. 129 to Mr. Yaniv's affidavit). Additional drafts that were exchanged until the final and agreed version was formulated did not change the Mega conditions.
- In addition to the intensive work of exchanging drafts between the negotiating teams, frequent dedicated work meetings were held in the presence of the relevant parties to resolve business disputes. It should be noted that with regard to clause 3.3 of the agreement as a whole, a commercial business discussion was held, and in particular regarding the terms of Mega, which constituted "Basis and Basis for the Share Purchase Agreement" (and see the minutes of March 30, 2025, p. 176, paras. 13-14), and also: "As part of the negotiations and the exchange of drafts, I was informed that... A meeting was held... As a result of that meeting, progress was made with respect to a number of issues that were subject to dispute... Another update I received is that Yehuda (your CFO) and Barak (our CFO) have been talking to each other to hold a working meeting in which the legal advisors will take part...(and see Appendix A1, p. 84 to Mr. Yaniv's affidavit).
- The evidence and testimonies therefore show that the final agreement reflects the understandings that were formulated in a meticulous and well-documented process between all the parties involved, both legal and business. This is how the parties themselves saw it, when they emphasized that the agreement "exhausts all that has been agreed between the parties in connection with the transaction that is the subject of this agreement and expresses the full intentions of the parties with respect to the transaction that is the subject of this agreement.(See paragraph 13 of the agreement; See also section 14.4, which rejects a claim of waiver of rights by way of conduct).
- In this state of affairs, it is clear that the language of the agreement must be adhered to (without any impediment).
III. The language of the agreement is clear
- We will repeat the provision of the Mega Terms, in clause 3.3.6 of the Agreement. This is what he said:
"No application was filed for the issuance of a liquidation order and/or the appointment of a receiver and/or a stay of proceedings and/or the appointment of a temporary or permanent liquidator against Mega, which was not cancelled within 60 days from the date of filing the application and/or the issuance of the order accordingly. For the avoidance of doubt, it is clarified that the aforementioned does not apply in relation to the recovery plan and the arrangement with Mega's creditors, which was approved by the Lod District Court on July 15, 2015, in accordance with Section 350 of the Companies Law.(emphases added).
- The language of the condition is clear: If two cumulative conditions are met, and the limitation at the end of the section is not met, there is no obligation to pay the additional consideration. The first condition: "A request was filed for a liquidation order and/or for the appointment of a receiver and/or a stay of proceedings and/or for the appointment of a temporary or permanent liquidator against Mega". The second condition, if the first condition is met: such an order"Not cancelled within 60 days from the date of submission of the application and/or issuance of the order accordingly". The exception: the exemption from payment will not apply to the extent that the said order was issued as part of Mega's recovery plan and creditors' arrangement, which was approved as aforesaid by the Lod District Court in July 2015. The provision of this section instructs an examination of the existence of mega conditions in each of the payment dates (paragraphs 3.2 and 3.3 of the agreement) (and see paragraphs 54 of the plaintiffs' summaries).
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