On this factual and legal basis, we will continue on our way to trace the nature of the detail and what happened after it was cut off.
The Detail - A Contract for Conclusion of a Contract
- At the outset, we noted that in accordance with the provisions of the Particular, two appendices were attached to it. These appendices were alternative drafts to the settlement agreement that the parties would sign when the conditions were fulfilled and the necessary approvals set out in the details were obtained: according to "Draft A", the Patriarchate would compensate Himanuta in the sum of $13 million in exchange for Himanuta's waiver of its claims regarding the validity of the real estate transaction and the removal of the warning note that had been registered in its favor; While according to "Draft B," the Patriarchate will extend the state's lease rights in the land for an additional period of about 150 years in exchange for a payment of $4.5 million.
A perusal of the details shows that the parties have established a default mechanism regarding the manner in which the binding alternative is chosen. Thus, in section 2 of the Particular, it is stated that "The parties undertake to settle the disputes between them as aforesaid in accordance with the text of the Settlement Agreement "Draft A" attached as Appendix A to this Particular, the wording of which was finally agreed upon and approved by the Parties". Subsequently, in paragraph 3 of the Particular, it was determined that after the issuance of the letter of recognition by the Government of Israel, following the receipt of the approval of the Holy Synod and subject to the approval of the JNF institutions, then "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".
In addition to the aforesaid, according to Article 4 of the Particular, all was kept by the Patriarchate The possibility of choosing Draft B: "The Patriarchate reserves the right to settle disputes with the JNF in accordance with the wording of the agreement 'Draft B' [...] if it notifies the Jewish National Fund in writing of its choice of this alternative no later than August 15, 2007 or within 3 days of receiving the government's approval, whichever is earlier" (to this was added an option to extend the deadline by agreement - clause 6.2). In other words, the right of the Patriarchate to deviate from the default (Draft A) and to sign Draft B in its place, was subject to giving written notice to the JNF within a certain period of time. Accordingly, if the Patriarchate had chosen Alternative B, the provisions set out in Clause 3 of the Detail regarding the timetables would have applied (clause 6.2 clause).
- Thus, the parties bound themselves within the framework of the particulars with an undertaking to conclude another contract, which is one of two alternatives, both of which are finalized and agreed upon in advance, and the power to decide between them is in the hands of the Patriarchate. If the required conditions are fulfilled and the Patriarchate sits idly by, the parties will sign Draft A; And if the Patriarchate wishes to draft B, it will notify the JNF within the stipulated time period, and the parties will sign this draft. This is the place to clarify that the Patriarchate has never announced its desire to vote in Draft B, and the parties have no argument in this regard. It is therefore clear that the only relevant draft that remains on the agenda is Draft A - that is, a payment of $13 million in exchange for waiving claims and deleting the warning note.
- The Scholars Friedman & Cohen A distinction is made between two types of contracts, in which the obligation is for the continuation of the engagement between the parties: "One is an undertaking to enter into a contract, the terms of which are, more or less, defined; The second is when the terms of the contract for which there is an obligation to enter are not yet defined and agreed" (ibid., vol. 1, 360-361). It was further stated that "there are quite a few intermediate situations in the range between a contract to conclude a contract in the first sense discussed above, such as an option contract, and a contract for negotiation" (ibid., at p. 362). Thus, when it comes to contracts that obligate the parties to enter into a consecutive agreement, there is a spectrum: on one side is the contract to conclude a contract in which the parties bind themselves in a rigid agreement to continue the engagement between them; On the other side is the contract for conducting negotiations, a softer obligation that leaves the parties with discretion as to their continued engagement.
On the theoretical level, if we return for a moment to the question of the validity of the first of the two contracts (in which the parties undertake to conclude another contract), then as we make clear Friedman & Cohen, If, in the framework of the first contract, the parties determined that they would still be required to reach a future agreement regarding Key Detail, then "the assumption is that a contract was not concluded, since the absence of the main detail and the disclosure of a desire to reach a concrete agreement about it, prevent the inclusion of a contract." On the other hand, "if the parties have reached an agreement on the main details, and they leave marginal details for a later agreement without determining that reaching such an agreement is a condition for the validity of the first agreement, the opposite assumption is applied, according to which the binding validity of the first agreement must be recognized" (ibid., pp. 348-349). These words reflect a deep-rooted precedent that discusses the legal status of a prior agreement and a memorandum of understanding, according to which "where the parties determined the main foundations of the transaction between them in the memorandum itself, it can be assumed that their intention was to reach a binding legal relationship, and it cannot be assumed that they intended only an interim stage in the negotiations between them" (Judge's Words A. Barak Other Municipality Requests 158/77 Rabinai v. Mann Shaked Company BTax Appeal (Dismantled), IsrSC 33(2) 283, 287 (1979), also cited in the Botkowski at p. 65).
- As detailed, in the case before us, all the terms of the settlement agreement (with its two alternatives) were determined by the parties in advance of the conclusion of the particular, and were attached to it as an appendix; It was explicitly clarified in the framework of the Detail that the text of the Settlement Agreement "Agreed and finally approved by the parties and their attorneys" (Sections 2, 4 of the Particular); The parties determined a default that dictated to the parties which of the two settlement agreements they must sign (insofar as the Patriarchate does not notify otherwise); Specific timetables have been set for the signing of the Settlement Agreement; and the parties refrained from determining that reaching an agreement on any issue is a condition for the validity of the particular.
When we come to place the case at hand along the spectrum under which different types of contracts are clustered for the conclusion of contracts, it is therefore clear that we They are at the most rigid end - a contract to make a contract whose terms are known and agreed upon in advance, and that the date of its signature was determined in advance. The first (the particular) contract is therefore a valid contract, which meets all the conditions required by virtue of contract law in order to be a binding contract (and we discussed at length the other conditions of the particulars in the above chapter). On the basis of this conclusion, we must now address its issuances: What are the obligations that the particularist expressed in relation to the conclusion of the second contract? Were the charges complied with or violated? Were there any later developments that prevented their existence? We will now turn to these questions.