Before we turn to the findings of the District Court on this question, it must be noted that the possibility of postponing the specified date set in clause 6.2 of the Detail was not limited by the parties in any way or manner. Thus, it was not determined that postponement of the date requires written consent (contrary to the provision of clause 6.2, which stipulated that the settlement agreement requires signature); Nor was there a time limit set for a possible postponement of the said date. All that was determined was that this date could be postponed with the consent of the parties. In the absence of such a limitation, it is necessary to examine whether it is possible to conclude from the evidence that there is an agreement between the parties to postpone the date, or not.
- The Patriarch testified that he refused the request to extend the date for the issuance of the letter of recognition and claimed that Adv. Weinroth had not contacted him at all on this matter. On the other hand, Himanuta argued that the words of the Patriarch and the Patriarch's counsel and their conduct and representations testified that such an extension was granted, even though it was not given in writing. Among other things, Adv. Elhanani testified that he had discussed the matter with Adv. Mughrabi, the Patriarchate's attorney, who told him that "you have nothing to worry about, the Patriarch is committed, what was promised will happen [...] His word is a word [...]" (Transcript of October 31, 2017, p. 62; transcript of December 14, 2017, pp. 127-141). Adv. Weinroth testified that he met with the Patriarch after the deadline had elapsed and he expressed his commitment to the settlement agreement, said that he "stands behind his word", that he is a "man of the word" and that if he is appointed he will fulfill the deal (but it should be noted that Adv. Weinroth clarified in his cross-examination that before the deadline passed, he did not ask the Patriarch directly about its extension; transcript of February 15, 2018, pp. 103-105). In addition, Adv. Weinroth's letter to Adv. Golan from the State Attorney's Office, dated December 23, 2007, on the eve of the issuance of the letter of recognition, was presented, stating that "[...] The Patriarch announced that he would fulfill the deal despite the expiration of the deadline," which is consistent with Weinroth's testimony (Appendix 30 to the Patriarchate's appeal).
Added to this was the fact that the parties had arranged a date for the signing of the settlement agreement somewhere at the end of April 2008, about four months After The letter of recognition was given (and about eight months after the date set in clause 6.2 of the particular), a fact that attests to the patriarchate's consent, even if only by way of conduct, to extend the deadline. Adv. Weinroth testified in his affidavit that shortly after the meeting between the parties on April 15, 2008, "I spoke with Adv. Mughrabi and the Patriarch directly, and both of them confirmed to me that everything worked out in the best possible way, the synod approved the settlement agreement and within a few days we will be in touch in order to coordinate a date for the signing and execution of the agreement. This statement was made without any reservation, and in one of the conversations Attorney Mughrabi even told me that the documents would be signed after Passover," which ended that year on April 26 (paragraph 35 of his affidavit).
- In the factual dispute that arose between the parties, the trial court preferred the version of the Himanuta witnesses, who presented an accumulation of testimonies that were "coherently intertwined" and supported by the recording of the consent given to them orally. This is in contrast to the only testimony of the patriarch (which did not even partially agree with the answers he gave in the questionnaire), and the absence of testimony by Adv. Mugrabi despite the fact that he was a "key player" in the campaign, in the words of the trial court. This determination of the court was based, as stated, on its impression of the testimonies of the witnesses who appeared before it, and I did not find in the arguments of the patriarchate any reason that could establish grounds for intervening in this determination. Therefore, the determination that the parties agreed to postpone the date for receiving the letter of recognition, and that the conditional condition regarding the granting of the letter of recognition was fulfilled stands standing.
(2) Approval of the Holy Synod of the Settlement Agreement
- In clause 3 of the Particular, it is stated that the Patriarch "Will be responsible for obtaining the Holy Synod's approval of the Settlement Agreement" (emphasis added - 11).
We mentioned above (paragraph 39) the legal presumption that is fixed In the section 27 Law The Contracts, according to which a contract that requires the consent of a third person or a license under legislation is a conditional contract that includes suspension terms. In light of this presumption, it could be argued that obtaining the consent of the Holy Synod is a condition, the non-fulfillment of which would have led to the cancellation of the contract (the particular). However, this is not an absolute presumption, and where the parties are aware of the need to obtain a license or license "and one of them assumes - explicitly or implicitly - the obtaination of the license or approval", then if "the license or approval has not been obtained, that party will be considered a breach of contract" (Shalev and Adar at p. 597, which cites the judgment Other Municipality Requests 1581/98 Ayalon Highway Company on Appeal Taxes v. Beshaura Initiation and Promotion of Projects Ltd.IsrSC 50(4) 209, 216-217 (2000); See also Friedman & Cohen Vol. III 45-48 (2003)).
- As with any contractual stipulation, the interpretation of a condition must also be done according to its language and in accordance with the intention of the parties. In view of the language of section 3 of the Detail, which imposes on the Patriarch the The Responsibility In order to obtain the confirmation of the Holy Synod, there is a basis for the claim that this is not a condition of suspension, but rather Undertaking That the Patriarch took upon himself. This argument is strengthened against the background of the different wording adopted by the parties In the same section In detail, in relation to obtaining the approval of another party -KKL-JNF Institutions, in respect of which the parties did not determine that its acceptance was the responsibility of Himanuta, but that the settlement agreement "Will be brought for approval The Accredited Institutions of the Jewish National Fund and subject to this approval will sign a settlement agreement" (paragraph 3 of the particular, emphases added - 10; I will refer to this stipulation regarding the approval of the JNF institutions below). Adv. Elhanani's testimony regarding the commitment of the Patriarch, who is the head of the Holy Synod, to receive the approval of the Synod, also supports this interpretive position (transcript of October 31, 2017, pp. 59-61 and December 14, 2017, pp. 124-125).
Thus, the undertaking undertaken by the Patriarch to receive the confirmation of the Holy Synod has been simplified; a comparison of this undertaking with the different wording adopted by the parties regarding obtaining the approval of the JNF officials; and the testimony of Adv. Elhanani in this matter - all support the conclusion that this is a case Undertaking That the Patriarch took upon himself. The significance of this conclusion, if we had adopted it, is that if we had accepted the claim of the Patriarchate that the approval of the synod was not given at all, it would have been prima facie Violation of the private on the part of the Patriarchate, which did not fulfill its commitment to achieve it.
- The District Court classified the need to obtain the confirmation of the Holy Synod differently. According to him, the receipt of the approval of the Holy Synod was a prerequisite for the purpose of formulating the Patriarchate's intention to enter into a compromise agreement. This conclusion was based on the interpretation of the particular, the status of the Holy Synod, and the conduct of the Patriarch and his representations. Alternatively, the District Court ruled that even if the particulars should be viewed as a preliminary agreement, the parties did not intend to refine it into a binding agreement except subject to the fulfillment of the requirements set out in clause 3 of the particular.
In any case, it seems that in the circumstances of the case before us, this exegetical issue as to the manner in which the need to obtain the approval of the Holy Synod is classified is of theoretical significance only. This is because even assuming that the receipt of the confirmation of the synod was not an undertaking undertaken by the Patriarch, but rather a condition of suspension or alternatively a condition Early For the purpose of formulating the patriarchate's intention to enter into the settlement agreement (as determined by the trial court), according to the factual determination of the District Court - the approval of the synod Possible.
- The question of whether the synod was approved was one of the main points of contention between the parties. The Patriarchate claimed that the approval of the Synod had never been granted. On the other hand, Adv. Elhanani, Adv. Weinroth and Mr. Hayek, an activist of the JNF in London and since 2008 chairman of the JNF England, testified that representatives of the Patriarchate and the Patriarch himself informed them that the approval of the synod for the signing of the settlement agreement had been received. Support for this can be found in a letter sent by Adv. Elhanani to Adv. Mughrabi on September 16, 2008, in which it was stated that "a few days after the meeting that took place with the participation of the Venerable Patriarch at the David Citadel Hotel in Jerusalem on April 15, 2008, you informed me by telephone that the Holy Synod had approved the agreement that had been reached. You reiterated this message to me on a number of other occasions and also in our telephone conversation of September 1, 2008." On the other hand, in Adv. Mughrabi's letter of reply to Adv. Elhanani dated October 27, 2008, it was stated that after the meeting held on April 15, 2008, it was clarified that the matter would be brought to the Holy Synod for discussion in order for it to give its opinion on the matter, and that "the Holy Synod discussed the matter but set conditions and principles that are completely different from the rest of the draft that you have forwarded to us" (Appendix 45 to the Patriarchate's appeal). In this dispute, the trial court ruled in favor of Himanuta, and ruled that the approval of the synod was indeed given. Let us briefly describe the process that led to this determination.
As noted at the beginning (paragraph 8 above), there is a religious custom that prohibits the disclosure of the book of the synod, which establishes religious jurisprudential privilege. However, in the framework of the present proceeding, this Court insisted that this was a matter of relative confidentiality and instructed the Patriarchate to produce a text detailing the contents of the Synod meetings relating to the Settlement Agreement and to deposit in the District Court photocopies of the requested minutes with a notarized translation into Hebrew. Notwithstanding the aforesaid, and despite the extensions given to the Patriarchate for this purpose, it did not invent the requested wording and protocols. In this situation, the trial court used evidentiary presumptions and burdens of proof; ruled that the Patriarchate chose not to present the main and decisive evidence to the court; and that her refusal to bring evidence that was in her unique knowledge, which was supposed to be used in her favor, leads to the conclusion that if she had been brought, she would have acted in fact against her. In the evidentiary fabric, when on the one hand it was found that the testimonies on behalf of Himanuta were reliable and supported by the written evidence material, and on the other hand, the Patriarchate refrained from testifying its counsel and violated the order to disclose the protocols, it was determined that Himanuta had lifted the burden of proof and proved that the Holy Synod had been approved.
- After examining the matter and giving my opinion on the arguments of the parties, I am not persuaded that there is room to intervene in this factual determination of the District Court, which is rooted in the heart of the rules of evidence and in the impression and reliability of the witnesses. In this context, I do not see fit to accept the Patriarchate's argument that the approval of the synod is given subject to the realization of the Patriarchate's parallel transaction with the third party (the Sofer Group). With regard to this argument, the District Court ruled that the confirmation of the Secretary of the Church dated April 23, 2008 submitted by the Patriarchate at the beginning of the proceeding (a document in which the transaction with the third party was mentioned) was not the document whose submission was required by the decision of this Court; and that the notice given by the representatives of the Patriarchate to the JNF in real time regarding the receipt of the approval of the synod did not bind the approval to the establishment of another transaction.
I will add that a review of the confirmation in question by the Secretary of the Church (Appendix 44 to the Patriarchate's appeal) shows that this is a laconic approval, which indeed mentions both the transaction with the JNF and the transaction with the "third party" ("the Third Party"), but does not include any condition, and it is highly doubtful whether it is possible to conclude from it the existence of a condition that conditioned the approval of the transaction with the JNF on the completion of the transaction with the third party (and I have not lost sight of what is stated in paragraph 22 of Duvdevani's affidavit, which includes a reference to the aforesaid approval of the Secretary of the Church). In order to substantiate this argument, according to which the Holy Synod conditioned the approval of the transaction with the JNF on the completion of the transaction with the third party, the Patriarchate should have followed the court's decision and discovered the relevant documents, perhaps what was stated in them would have shed light on this point - but it did not do so. What happened in the Holy Synod and how the transaction was presented by the Patriarch we do not know, and as I mentioned on the matter Religious Confidentiality, in paragraph 36: