Similar to the testimony of Judge Arbel, Adv. Weinroth also testified in his affidavit that "during the hearing, Adv. Elhanani read aloud to the Patriarch and the rest of the audience the contents of the minutes, word for word, translated into English [...] At the end of the reading, the Patriarch officially and 'festively' confirmed to all present that the words that were read were agreed upon and accepted by him, and that he and the Patriarchate undertook to act in accordance with them" (Adv. Weinroth's affidavit, Section 22). Adv. Elhanani also testified that he read the matter to the Patriarch, made sure with the Patriarch that he understood and knew him, and the Patriarch replied in the affirmative and confirmed that he declares what is stated in the particular, i.e., that he will act in accordance with what is stated in the Detail and its appendices, and that their contents have been translated and explained to him (in accordance with what is stated in Section 9 of the Particular; Transcript of October 31, 2017, p. 59). The District Court added that these statements are also consistent with the testimonies of Mr. Duvdevani and Adv. Yoeli, in a "coherent and precise" manner (paragraph 145 of the judgment).
- Thus, both the unequivocal and explicit language of the particular, and the circumstances of its termination, in the presence of the parties' lawyers, and as they appear from the aforementioned testimonies, clearly indicate that the patriarch had a final mind. On the other hand, on behalf of the Patriarchate, no testimonies of those present at the ceremony were brought in the District Court, except for the Patriarch himself. From the words of the Patriarch in his testimony, it can be understood that he understood that the purpose of the meeting was, among other things, to bring about a final agreement between the parties ("About understanding the lease of the properties and to reach an agreement finally"). However, the Patriarch testified that he did not remember anything about the minutes, that he did not know exactly what the meeting was about, that Adv. Elhanani did not read things to him in English but to his lawyers, and that he himself acted according to the instructions of his lawyers (transcript of September 11, 2019, pp. 120-121, 144-145, 250-255). The Patriarch also testified that he himself did not remember whether at that meeting he agreed to act in certain ways, but since the minutes were not signed, this undertaking given orally was not binding ("Because nothing was signed […] I don't remember. Because everybody you can say whatever you like, right? And this verbal commitment is not binding") (ibid., p. 254). The Patriarch also testified in his affidavit that in his understanding, only the full signature of the parties to the final agreement would bind the parties (paragraph 12 of his affidavit), and this connects with the Patriarchate's claim in its appeal that in accordance with the condition set out in clause 6.1 of the Particular, no agreement was entered into between the parties without their full signature.
As will be detailed below, these two arguments should be rejected.
- First, the patriarch's implicit claim that he did not understand the legal significance of an oral undertaking in Israeli law does not have the power to negate the existence of a final decision and nullify the validity of the contract, and was legally rejected by the District Court. The touchstone for the existence of finality is not the communicator's subjective intention and what he feels in his heart, but rather what can be deduced from the external expression of his intention and the totality of the circumstances. Indeed, "the requirement for determination is therefore fulfilled when the circumstances attest to determination, and not necessarily when there is actual determination. Even when the declarant's final opinion is completely absent, but his request or notice attests to his final opinion, he can be obligated according to his declaration. The objective-external aspect of the demand prevails here over its subjective-internal aspect."Peaceful and Plant, Ltd.' 165; Yes they saw Civil Appeal 692/12 Friedman v. Shapira, paragraph 36 [Nevo] (August 7, 2013) (hereinafter: the case שפירא); Civil Appeal 5511/06 Aminoff v. A. Levy Investments & Building, paragraph 9 [Nevo] (10.12.2008) (hereinafter: the case Aminoff)). Therefore, even if I am correct to assume for the sake of the discussion and in favor of the Patriarch that he himself, in his own view, did not intend to enter into a contract, this would not have saved the Patriarchate in this appeal, since the totality of the circumstances and the language of the agreement as detailed above "scream" together with the intention to create a legal relationship and the determination of the parties to enter into a binding contract. All this even without turning to the impression of the trial court, according to which the Patriarch gave in this matter "testimony that is not sufficiently clear about the conduct of the ceremony and the explanations he received, and on the face of it, it seems that he sought to distance himself from agreements in the ceremony" (paragraph 146 of the judgment).
- And from here to the issue of the signature. As may be recalled, the two retired judges who signed the detail were the two retired judges who were brought to the ceremony in order to serve as witnesses to the agreements reached by the parties, as well as Adv. Weinroth. On the other hand, the parties themselves, i.e., representatives of the Patriarchate and the JNF, did not sign the particular. Does this lead to the conclusion that the parties did not intend to enter into a binding agreement and negate the legal validity of the particular?
There is no dispute that signing a document constitutes important evidence of the existence of a final decision. However, a signature or absence constitutes a rule Indication of the existence of a conclusion, and just as the absence of a signature does not necessarily negate the existence of a conclusion, so the existence of a conclusion does not in itself constitute unequivocal evidence of the existence of a conclusion. Indeed, the test for the existence of a conclusion is "a substantive test of intention, which prefers the totality of the circumstances of the matter to technical expressions such as a signature, a headline, or a declaration" (Peaceful and Plant, p. 165 and references in Reference 31; And see from recent times the judgment of my colleague, the judge A. Grosskopf, Other Municipality Requests 1456/22 Ajami v. Wahat al-Salem Neve Shalom (Neve Shalom Local Committee), paragraph 31 and the references therein [Nevo] (February 28, 2024) (hereinafter: the Matter Ajami); Yes they saw Civil Appeal 7591/13 Anonymous vs. Anonymous, paragraph 22 [Nevo] (January 25, 2016) (hereinafter: the case Anonymous); עניין שפירא, paragraph 39). Without derogating from the aforesaid, where the parties have expressly determined that a signature is a necessary condition for the purpose of perfecting the contract, then in the absence of a weighty reason that indicates otherwise, it is generally a stipulation of decisive weight.
- In support of its claim that it did not enter into a binding agreement at all, the Patriarchate wishes to rely on Clauses 6 and 6.1 of the Particular, which are as follows:
- For the avoidance of doubt:
6.1. What is stated in Drafts A and/or B will not be binding on the Jewish National Fund or the Patriarchate, except with the full signature of any of the aforementioned documents as stated in section 3 or 4 above (as applicable); All rights of the parties to each other as well as to any other party are fully reserved.