The District Court adopted the statement and ruled that this was the representation presented by the Patriarchate, and that this also arose from the testimony of Adv. Weinroth. The court emphasized that these witnesses were found to be credible and their testimony was found to be reliable. The court therefore ruled that in accordance with the parties' desire to commit to the agreement, the idea was to convene the parties "on a path that bypasses obstacles" in order for them to express their intention to commit to the agreement and to perfect it through the signatures of two retired judges (paragraphs 141-142 of the judgment). In this factual finding there is no reason to intervene.
- The conclusion drawn from the above is that the absence of a signature on the particulars does not indicate a lack of agreement on the part of the parties to enter into a binding agreement (see and compare toCivil Appeal 7591/13 Anonymous vs. Anonymous, paragraph 14 [Nevo] (January 25, 2016) where the lack of signature was due to tax considerations). According to the evidence and the District Court's rulings, the refusal to sign the particulars was done in this case due to the wishes of the parties Bypass The difficulty that arose at that point in time due to the failure to receive a letter of recognition from the Israeli government, and the desire of the parties to enter into a binding agreement Despite This difficulty. In other words, it is not the absence of a signature that indicates the absence of a final decision, but rather a conscious effort to take all possible measures, except a signature, which has the power to testify to the finality of the parties. This is, at the very least, the representation made by the Patriarchate, and this is sufficient to lead to the conclusion that with regard to the legal status of the particular, the element of finality was also fulfilled.
- For the sake of completeness, we should mention that alongside the requirement of finality, the inclusion of a binding contract is also subject to the requirement of The Specifics, i.e., that the essential and material details of the transaction will be agreed upon by the parties (for more See at Peaceful and Plant, pp. 173-178). In the case before us, the parties do not argue that the detail did not include the material details necessary for a complete and final agreement. It should be added that in accordance with what is stated in the Particular, the Settlement, "which was drafted and finally agreed upon and approved by the parties and their attorneys", was also attached as an appendix to the Particular. In these circumstances, I do not see it necessary to elaborate unnecessarily on the requirement of specificity, which is clearly fulfilled in the case before us (see and compare the matter Ajami, where it was stipulated in the first agreement that the agreement "Does not constitute The entire agreement with all its details", and nevertheless it was determined that this is a binding agreement that must be enforced).
"Legal obstruction"
- Another argument raised by the Patriarchate, for which the individual is invalid, is based on the patriarch's alleged "legal impediments" from signing the agreement as long as the letter of recognition has not been given by the Israeli government. According to the patriarchy, "[...] It is clear that if the Patriarch is not authorized to sign, he is also not authorized to undertake orally on behalf of the Patriarchate", and "this is sufficient to conclude that no arrangement could have been reached" (paragraph 29 of its summaries in the appeal).
- Conceptually, there is a connection between the question of a person's competence to enter into a contract and the question of the existence of a defect in the will to enter into a contract (Friedman & Cohen Volume 2 443 (2nd ed., 2023)). However, it seems that the said argument of the Patriarchate is not intended to establish a lack of discretion or a defect in will on the part of the Patriarchate (an argument that we rejected above), and it is even clear that this argument is not relevant to the question of the competence of the Patriarch according to Legal Capacity and Guardianship Law, 5722-1962 (reference to the distinction between legal capacity and determination and defects in will, see Yitzhak Englard "Legal Capacity and Guardianship Law, 5722-1962" Interpretation of Contractual Lawsm (Founded by G. Tedeschi) 62-63 (3rd ed., 2023)). The Patriarchate's argument revolved around the Patriarch's "authority" to enter into a binding legal agreement on behalf of the Patriarchate, and more specifically the Patriarch's "lack of authority" as long as he was not given the letter of recognition. This argument, it seems, Based on So according to the law that applies in Israel As forThe choice of the Patriarch, the latter must enjoy the confidence of the government and receive a letter of recognition from the Government of Israel in order to enter office (This is in accordance with the Ottoman Imperial Regulations of 1875, which were amended by Mandatory legislation, as described In a High Court of Justice case 963/04 Loiffer v. Government of Israel, IsrSC 58(3) 326, 331 (2004); High Court of Justice 10615/07 His Majesty Irenaeus I Patriarch of Jerusalem v. Prime Minister of Israel, paragraph 1 [Nevo] (27.12.2007)).
- The argument that the particulars are invalid due to the fact that at the time of its reading at the festive ceremony the Patriarch had not yet received the letter of recognition - is liable to be rejected for a number of reasons.
First, let us recall that the Patriarch was elected by the elective body of the Patriarchate, the Holy Synod, on August 22, 2005. In the statement of claim in the present proceeding, Himanuta argued that in order to give legal validity to the election of the Patriarch in accordance with the laws applicable in Israel, it is required that the Patriarch be recognized by the Government of Israel and given a letter of recognition (paragraph 13.1 of the amended statement of claim of July 9, 2013; it should be noted that this position is consistent with the response submitted by the State in the case of the High Court of Justice 9970/05 His Eminence Archbishop Giannopoulos v. Government of Israel [Nevo], in response to the Patriarch's petition to instruct the government to recognize him as a Patriarch). On the other hand, it was the Patriarchate that claimed in its statement of defense in response that it denies the claim that the Patriarch's election was invalid until the letter of recognition was received (paragraph 57 of the statement of defense of October 1, 2013). It is doubtful how the position of the Patriarchate in its statement of defence, according to which the election of the Patriarch was valid, is consistent with its now claim regarding the lack of status of the Patriarch at the time of the reading of the particular, to the extent of denying him the ability to enter into an agreement on behalf of the Patriarchate.
- Second, there is no dispute that according to the Patriarchate's approach, the Patriarch - who, as noted, was elected by the Church institutions already in 2005 - represented it in his capacity as Patriarch, and all his conduct throughout the stages of the negotiations and the celebratory meeting was in the name of the Patriarchate and for it. This is explicitly evident from the language of the particular, in which it was clarified that the parties agree to "make every effort to settle the disputes between the parties by means of compromise and peace. The Patriarchate to the Jewish National Fund [...]" (Section 1 of the detail; emphasis added - 10). The Patriarchate also explicitly argued in its summaries in the District Court, when it clarified that the Patriarch's involvement did not stem from him being a party to the proceeding personally, and that his status could be compared "to the status of an officer of a company who conducts negotiations on its behalf" (paragraph 664 of its summaries). Nor is it superfluous to note that the entire process was accompanied by On behalf of the Patriarchate, who translated for the Patriarch the contents of the detail and its appendices and explained to him what was stated therein (section 9 of the particular).
We are therefore not dealing with an agent who acted without the permission of his sender (for even then the sender can revoke the action retroactively by virtue of section 6(a) of the Courier Law, 5725-1965 (hereinafter: the Courier Law)). Nor is this a situation in which an agent performs an action when the sender is not a legally recognized legal entity, such as a corporation prior to its incorporation (even then the corporation can approve the action retroactively by virtue of section 6(c) of the Courier Law; see similarly the provision of section 12 of the Companies Law, 5759-1999, which allows a company to approve an action by an entrepreneur that was done in its name or in its place prior to its incorporation). This is, according to the argument, a situation in which the agent does not have status, which ostensibly negates the validity of the sender's undertaking, despite the fact that the sender does not dispute that the messenger acted on his behalf and on his behalf. Such a claim cannot be accepted. This is because "in the ordinary state of affairs, in the case of open emissary, the legal action of the sender is not binding and does not entitle him, but only the sender. Therefore, it is not essential to send a messenger because he will be competent for duties and rights" (Aharon Barak, The Shlichut Law, vol. 1, 665 (1996)). See also the words of Justice M. Shamgar regarding the provision of section 4 of the Courier Law , which deals with the kashrut of the shluch, noting that "the law does not require that the shluch be competent to perform that legal action, which is the subject of the shlichut, for himself, provided that the sender has the legal competence required to perform that legal action" (Civil Appeal 98/80 Condominium Representative, 77 Rabbi Akiva St., Lod v. Kidmat Lod, Ltd.), IsrSC 36(2) 21, 25 (1981)). An examination of the matter in the perspective of the law of mission therefore leads to the conclusion that there was no impediment on the part of the Patriarch to enter into an agreement on behalf of the Patriarchate.
- Moreover. In clause 6.2 of the details, the parties agreed that "the agreement stated in this detail and everything related to it will be void if the government's approval is not received by August 15, 2007, unless the parties agree to postpone the said date." Granting the letter of recognition to the Patriarch was a condition that indeed Fill up A few months after the reading session of the detail (I will address the issue of the fulfillment of the condition on the date in more detail below). In these circumstances, the Patriarchate's claim that the individual was devoid of any validity and could not be recognized at all, despite the receipt of the declaration of recognition and the fulfillment of the condition, is a claim that is difficult to accept.
An inference can be drawn to this from the laws of an invalid contract. It is common for parties to enter into an agreement that is subject to a suspension clause in the form of obtaining a permit or license, without which the contract will become an illegal contract. However, even though the law of the illegal contract is null and void (section 30 of the Contracts Law), there is no difficulty in the fact that upon receipt of the license and the fulfillment of the suspension condition, the contract will become a complete and ordinary contract (Shalev and Mamach, at p. 601). To this, it should be added that according to the presumption set forth in section 27(b) of the Contracts Law, a contract that required a license under legislation is a presumption that the receipt of the license is a condition; and as Shalev and Zemach explain, this presumption is intended to save the contract from nullification because it is an illegal contract (ibid., at pp. 598-599). As a result of our case, even if I would be correct to assume in favor of the Patriarchate and for the purpose of the discussion that in the absence of the letter of recognition the contract is null and void, from the moment the condition regarding the receipt of the letter of recognition was determined, I see no impediment to determining that upon the fulfillment of the condition and the receipt of the letter of recognition - the contract was in force with its various operative provisions (as to the question of what is the validity of the contract in the interim period until the condition is fulfilled, and if there is a suspension clause that gives the contract retroactive validity, see Shalev and Tzemach, who mention the different positions of Prof. Tedeschi, Prof. Friedman, and Prof. Zeltner on these issues (ibid., at pp. 591, 601)). In short, just as the determination of a suspension condition regarding the receipt of a license negates the illegality of the contract, saves it from nullification and grants it operational validity upon the fulfillment of the suspension condition, so the determination of the condition regarding the receipt of the letter of recognition and the fulfillment of the condition led to the fact that the detail was "used" and nullified, and the operative provisions set forth therein came into effect (subject to the fulfillment of the other conditions set out in the particular, which I will address below).
- We therefore reached the conclusion that at the time of the festive meeting at which the detail was read, the parties had decided to enter into a binding agreement; that this Agreement met the requirement of specificity and included all necessary material details; and that there was no legal impediment to which it was not possible to enter into a binding agreement at that time. We will now turn to examine the Patriarchate's argument that the conditions set out in the agreement have not been met, and that therefore it should not be regarded as a binding agreement.
The content of the detail
- Section 25(A) Law The Contracts states that "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 expressly implied in the language of the contract, the contract shall be interpreted in accordance with its language." Our task now is to trace the intentions of the parties while acting in the light of the language of the contract.
- Section 3 of the Particulars, the main and central clause of the agreement, provides as follows:
"3. Immediately upon receipt of the letter of recognition (high berat) from the Government of Israel for the election of the elected Patriarch Theopoulos III as Patriarch of the Greek Orthodox Church in Israel (hereinafter: the "Government Approval"), the Patriarchate will notify the Jewish National Fund. The elected Patriarch, Theopoulos III, will be responsible for receiving the approval of the Holy Synod of the Settlement Agreement (Draft A), the Settlement Agreement (Draft A) will be brought to the approval of the authorized institutions of the Jewish National Fund, and subject to this approval, the Settlement Agreement (Draft A) will be signed in full by the parties, within 7 days of the government's approval."