Civil Appeal 1463/22 The Greek Orthodox Patriarchate of Jerusalem v. Himanuta Ltd. - part 43

Finally, the combination of the drafts of the two compromise alternatives to the Detail can be consistent with the perception that this is a memorandum of understanding, in the sense of a partial agreement with respect to the final engagement, especially in light of the clarification with respect to each of them that this is a text that has been fully agreed upon by the parties.  However, unlike the usual situation of a memorandum of understanding, in which the essential details of the transaction were agreed, in the present case, at the present stage, the most essential thing was not agreed upon - which alternative compromise the parties are headed to: payment of compensation by the Patriarchate of Limanuta or an extension of the lease in favor of the JNF.  The only way to overcome this essential difficulty (since it is clear that the alternative to compromise is an essential detail, without which it is impossible to give effect to a memorandum of understanding) is to assume that the intention of the parties was to leave this choice to the absolute discretion of the Patriarchate (as appears to be evident from section 4 of the Particular).  Zero, such an agreement is inconsistent with the manner in which the parties behaved in the continuation of the negotiations, and in particular is inconsistent with the JNF's continued insistence on limiting the ability of the Patriarchate to do with the land as it pleases after the end of the lease period (see paragraph 164 of the trial judgment).  In addition, and I will return to this matter later, a memorandum of understanding is a document in respect of which both parties have the discretion to enter into the main transaction immediately.  This matter is certainly not appropriate for the state of affairs that the Particularist is intended to solve - the inability of the parties and the parties to move forward in the negotiations without receiving a decision from the competent institutions.

25. The difficulty of associating the detail with a clear category of an interim agreement is not coincidental. This stems from the fact that in practice, this is essentially an auxiliary document, intended to advance the negotiations, but not yet to create a binding compromise agreement between the parties.  Thus, given that at this stage the parties (as opposed to Adv. Weinroth) were not interested in committing to the compromise alternative that would be determined, and agreed only to put the two alternatives in writing, together with a proposal to treat them, and at the same time to determine an outline for the progress of the negotiations, by bringing the matter before their authorized institutions.  To be precise, the negotiators and givers on both sides, as well as the Patriarch, were not yet ready at the time to commit to their preferred compromise alternative.  This is partly because at this stage the JNF still hoped that it would be able to bring the Patriarchate to its preferred option, extending the lease period.  Only in retrospect, when the criminal proceedings ended in 2010, and it was clear to the JNF that it was expected to lose in the civil proceeding as well with respect to the enforcement of the fraudulent transaction, did it change its reasoning, and sought to base its claim against the patriarchy in the civil proceeding also, and later mainly, on the claim that the detail is a document that entitles it to payment under the compensation alternative.
26. As stated, the trial court, and apparently my colleagues as well, analyze the legal status of the individual by means of the rulings established regarding the validity of a memorandum of understanding. Despite the difficulty I see in this, and without putting any rivets on the matter, I will also go down this path, which reflects the way in which the case was argued by Himanuta.  At the same time, it should be remembered that certain provisions in the details are clearly instructions regarding the manner in which the negotiations are conducted.  These provisions can sometimes be attributed binding force independently, as an agreement regarding the manner in which the negotiations are conducted, regardless of the question of whether it is a binding memorandum of understanding (see, for example, paragraphs 66-71 below).

The details and tests for identifying a binding memory

27. I will preface with a few clarifications regarding the structure of the particular. As may be recalled, two detailed drafts were attached to the particular, which reflected two alternatives to a possible compromise agreement between the Patriarchate and Himanuta - one, which was anchored in Draft A, included a payment of $13 million by the Patriarchate in exchange for the deletion of the warning notes (which I called the default agreement); The second, which was anchored in Draft B, concerned the extension of the JNF's lease of the land for an additional 150 years in exchange for a payment of $4.5 million (which I called the alternative agreement).  According to what is written in the particular, the obligation of the parties to one of the settlement agreements will begin after they sign it, and this signing will be preceded by a number of events.  Thus, our discussion revolves around two possible contracts: the first is an interim document, the detail itself, which included various stipulations dealing with the period leading up to the conclusion of the final settlement agreement, the conditions for its conclusion and to which the drafts were attached; The second is one of the compromise agreements, the signing of which was supposed to "seal" the contacts between the Patriarchate and Himanuta, and put an end to the affair.  As clarified, at the center of this discussion is the question of the status of the interim document, i.e., of the particular, and the possibility of granting it validity as a binding memorandum of understanding.
28. As I recently had the opportunity to point out on another matter, Israeli case law has often dealt with the question of the status of interim documents, which are claimed to be binding memorandums. Since the Guiding Judgment was given Other Municipality Requests 148/77 Rabinai v.  Mann Shaked Company BTax Appeal (Dismantled), IsrSC 33(2) 283, 285-288 (1979) (hereinafter: The Rabinai case), the approach adopted is "A substantive approach, which seeks to examine whether the interim document meets the essential requirements for concluding a contract - that is, given that the parties intended to establish a legal relationship through negotiations, whether the interim document meets the two additional requirements that are essential for the creation of a contract under Israeli law: discretion and certain" (Civil Appeal 1456/22 Ajami v.  Wahat al-Salem Neve Shalom (Neve Shalom Local Committee), paragraph 24 [Nevo] (February 28, 2024) (hereinafter: The Ajami Matter).  For an overview of the customary halakha regarding memorandum, See also: Civil Appeal 8320/09 Elhaddad v.  Shamir, paragraph 24 [Nevo] (March 29, 2011) (hereinafter: The Elhadad Matter)).  As will also be clarified below, when it comes to a real estate transaction, the prescribed written requirement must also be met In the section 8 30Real Estate Law (See paragraphs 72-78 below).  This approach (the substantive approach) replaced a more formal approach, which assumed as a premise that the parties' agreement on a document in which they recognize it as a document Intermediate does not attest to an intention to create contractual liability between them by means of it (see: Menachem Mautner "Only the professional contract, And not the memory of the words, You need to create rights and obligations in real estate transactions" The Book of Gabriela Shalev - Studies in the Theory of Contracts 303, 304-308 (Yehuda Adar, Aharon Barak & Effi Zemach eds., 2021) (hereinafter: Mautner)).
29. Recognition of the binding validity of a memorandum of understanding, as opposed to recognition of the legal validity of other interim agreements (i.e., an agreement on the conduct of the negotiations or an agreement to conduct negotiations), means that the parties are already bound during the negotiations on the main transaction. Therefore, when arguments regarding the status of a document as a binding memorandum of understanding are on the agenda, it is necessary to examine the final opinion of the parties with respect to the engagement in the main transaction (along with the other required conditions, as stated above), and it is not sufficient to have a final opinion relating to the "local" aspects of the negotiations.  This is because agreements relating to the negotiation process, such as an undertaking to bring a matter to a certain party's approval, or to obtain a permit from a particular authority, may constitute part of an interim agreement relating to the manner in which the negotiations will be conducted, without this indicating that there is any discretion in relation to the final transaction.  Accordingly, given that the focus of our discussion is the identification of the particulars as one in which the parties have reached a final agreement on a binding settlement agreement (the arrangement whereby the Patriarchate will compensate Himanuta with $13 million, which is, as stated, the default agreement), the finalityof opinion must be examined from the perspective of this arrangement, and not in relation to the various "local" arrangements that appear in the particular, and which can be understood, in the context of the manner in which the negotiations are conducted (e.g., The issue of the signature requirement will be examined in paragraphs 66-71 below).  In this context, we mustbe careful not to hold the rope at both ends: on the one hand, to ease the requirements for the recognition of the particulars as a binding agreement because it is a separate and preliminary interim agreement to the final agreement (see, for example, paragraph 64 of my colleague's opinion, in relation to the signature requirement set out in the particular; and see also paragraph 54 of his opinion, in relation to the issue of the approval of the institutions), and on the other hand, to see it as fully embodying the intention of the partiesto enter into a binding settlement agreement that will end the contacts between them.  Such a simultaneous grip on the ends of the rope - the end that is rooted in the middle class of the document and the end that is rooted in its final status - is liable to render meaningless the requirement of discretion, and lead to unwanted recognition of interim documents, which embody understandings regarding the conduct of the negotiations only, without formulating an agreement regarding the engagement in the final deal, as a binding memorandum of understanding.  As will be illustrated below, this point is one of the main reasons that brings me to a different position than that of my colleagues.
30. I will now turn to explain why, in my opinion, the particulars do not meet the basic requirement of the Patriarchate's discretion and reliability to be bound immediately, already at the time of the drafting of the particular, in a binding compromise agreement. In the absence of such a meeting of desires, the particular, even if it reflected the positions of the negotiators and givers (including the Patriarch) in real time, constituted at most an outline for conducting the negotiations, which sought to guide the way for the continuation of contacts between the Patriarchate and Himanuta.

The parties' discretion with respect to all the details

31. As is well known, and as I have already mentioned, the central element necessary for the characterization of an interim document as a binding memorandum of understanding is that it must express a confluence of the parties' desires to be immediately bound in the final transaction (in our case, a settlement agreement), the main terms of which are known and agreed upon according to an objective test. This discretion can be learned from the content of the document in dispute, and as part of it from the language of the formula that defines the relationship between the document and the detailed contract that will be signed - i.e., the 'contract formula', as well as from the circumstances of the matter and the conduct of the parties (see: the Ajami case, at paragraph 27, and the references cited therein).
32. In his opinion, my colleague based his determination that the parties had decided to enter into a binding settlement agreement on two main reasons: one, the details of the meeting that took place on March 12, 2007 in the office of Adv. Weinroth; Second, the content of the detail (see paragraphs 27-28 of his opinion). I am of the opinion that an examination of these two reasons, as well as other considerations, clearly leads to the opposite conclusion, according to which even if the particulars did indeed reflect at the time the positions of the negotiators and grantors on behalf of the Patriarchate and the Trustees with respect to the outline for the continuation of the negotiations (including Patriarch Theopoulos), there was no meeting of desires between the Patriarchate and Himanuta that could establish a determination that a binding compromise agreement had been created.

The "Festive" Meeting of March 12, 2007

33. The event that is at the center of Himanuta's arguments, and to a large extent also at the heart of my colleague's opinion, is the meeting held on March 12, 2007 in the office of Adv. Weinroth (hereinafter: the status of the reading of the particulars or the status). The Patriarch, the Patriarchate's lawyers, representatives of the JNF and Himanuta, Adv. Weinroth, as well as two retired judges (the late Avigdor Mishaali and Dan Arbel (hereinafter: retired Judge Arbel; and together: the retired judges)).  It should be noted that the retired judges were not involved in the previous stages of the negotiations, and were "recruited" to the position by Adv. Weinroth as external witnesses to what was happening in the negotiations (see the affidavit of retired Judge Arbel, at paragraphs 4-8; as well as his testimony, at pp.  71-81 of the transcript of February 15, 2018).  As part of the ceremony, Adv. Elhanani, Himanuta's attorney, read out the main points of the detail, and at the end of this reading, they signed the detail ("for evidence"; See paragraph 10 of the particular) Adv. Weinroth and the two retired judges, and they alone (see paragraph 30 of the trial judgment).
34. The identification of the status of the reading of the particulars as a "ceremonial" and "festive" occasion is a cornerstone of the position according to which the particulars expressed a meeting of the parties' desires to enter into a binding agreement (see paragraphs 27-33 of the opinion of my colleague, President Amit; paragraph 25 of the summaries of Himanuta in the present proceeding; and see also the affidavit of Adv. Weinroth, at paragraph 17). This solemnity, it is argued, testifies to the conclusion of the negotiations (otherwise, "what is the celebration about"?), and it has the power, according to the claim, to overcome signs that make it difficult to recognize the finality of the Patriarchate and the JNF at the stage of reading the particular, such as the absence of a signature on behalf of the parties, and the explicit expression given in the detail of the intention to postpone the engagement in a binding agreement.  However, a number of points lead me not to attach any importance to that "ceremonial" or "solemnity," and perhaps even to draw the opposite conclusion from it from that which my colleague draws.
35. First, in cases where this court in the past attributed importance to the existence of a "festive signing ceremony", it was an event organized by the parties, or took place between them spontaneously, and therefore reflected the intentions of the contractors. On the other hand, as I have already noted, the director and producer of the briefing was Adv. Weinroth, who had a clear interest in ensuring that the negotiations would mature into a binding agreement - and this ostensibly without attributing importance to the alternative that would be chosen (in contrast to the parties themselves, who of course attached critical importance to this matter).  Accordingly, Adv. Weinroth not only conceived the idea of designing a stand that would resonate with the external observer with discretion (and it is difficult to get rid of the impression that this design was done in the spirit of Civil Appeal 692/86 Yaakov Butkovsky & Co.  - Import and Marketing Company in Tax Appeal v.  Gat, IsrSC 44(1) 57 (1989) (hereinafter: the Butkovsky case)), even in the absence of an explicit expression of such an intention on the part of the parties, but also recruited the retired judges as witnesses for this purpose.  Accordingly, Adv. Weinroth was also the one who made sure to brief the retired judges in advance of the event, and to teach them that "this is a formal agreement situation, in which the parties to the negotiations that took place in his involvement are supposed to declare and commit to each other in agreements whose details have been put in writing" (affidavit of retired Judge Arbel, at paragraph 4).  Given the aforesaid, the ability to learn from the festive ceremony, as well as from the testimony of the retired judges, about the intentions of the parties raises considerable difficulty.
36. Second, in my view, the very desperate attempt of the mediator, Adv. Weinroth, to confer the status of a memorandum of understanding on the part of the individual by summoning the retired judges to the event, shows the absurdity of the claim that this event reflects the discretion of the Patriarchate and the JNF. Instead of basing the parties' agreement on what is stated in detail in the usual ways in our places, Adv. Weinroth takes the trouble to direct an unusual play by importing judges-extras who seem to have been taken from another film.  And I will ask myself: why was Adv. Weinroth required this trick in the first place in order to learn about consent, where the parties are before him, and there is no difficulty in asking for their consent in a simple and acceptable way (and precisely, the explanation regarding the Patriarch's unwillingness to sign before the letter of recognition is received is insufficient in this context, if only because there are other ways to express the agreement as requested, such as the signature of the parties' counsel)? Why did he think in advance that two reliable witnesses (retired judges - no less!) would be needed in order to convince him of the matter that there was no difficulty in clarifying and proving him directly? Indeed, it is hidden from my eyes how the presence of the retired judges, or their testimony, advances the conclusion that the parties have decided to bind to the details.  On the contrary, in my understanding, the very artificial need for them indicates that it was clear to all, and above all to Adv. Weinroth, that a willingness to give a legal obligation in relation to the settlement agreement by any of the parties does not yet exist.
37. Thirdly, and further to this, even if we accept that in the framework of the status quo the consent was given by the Patriarch to what is stated in the particulars (as opposed to the version given by the Patriarch, see paragraphs 146-147 of the trial judgment), we must leave this consent in its measure, as it arises from the testimonies heard in the preliminary proceeding, and not exaggerate its intensity. One reason for this is that the detail was not signed by the representatives of the parties; And from the patriarchy's point of view, not by the patriarch, nor even by its representatives, Adv. Mughrabi and Adv. Zoabi, who were present at the event.  As stated, those who nevertheless signed the particular, declaring that the parties "committed to each other to act in accordance with what is stated in [the particular] and to comply with its provisions", are Adv. Weinroth, whose motives in the circumstances of the matter have already been discussed, and the retired judges, who, as we recall, were not involved in the negotiations at all up to this point, and were "instructed" into the event by Adv. Weinroth for the purpose of making this exact statement.  As if that were not enough, the combination of the testimonies of the prosecution witnesses in the preliminary proceeding shows that the patriarch's consent to what was stated in all the details was expressed by a nod or saying "yes" at the end of the reading of the main points by Adv. Elhanani - nothing more than (see mainly Elhanani's testimony, at p.  59 of the transcript of October 31, 2017 ("To the best of my recollection, it is not that he stood up and made a solemn statement")); However, also in the testimonies of Mr. Duvdevani, on page 60 of the minutes of March 4, 2019, and of one of the representatives of the JNF and Himanuta, Adv. Yoeli, on pages 80-81 of the minutes of February 15, 2018; See also paragraph 30 of the trial judgment).  In other words, the "consent of the Patriarch", which according to the claim is sufficient to reflect the decision on the part of the Patriarchate to pay $13 million (!), was not only not given by means of his signature on the particular, or in any other written expression (see paragraphs 66-80 below), but also on the face of it, not in a festive and unique manner that expresses the joy and satisfaction with the completion of the contacts, as the holder of the aforesaid cutting thesis could have expected.  Indeed, if we like it - mountains hanging from her hair.
38. Finally, and in continuation of the above, the testimonies on which the thesis regarding the significance of the status is based include the testimonies of Adv. Weinroth and retired Judge Arbel. Although the trial court found these testimonies credible (paragraph 131 of the trial judgment), it is difficult not to read and evaluate the testimony of Adv. Weinroth against the background of what I have said above in relation to his motives (which included, as will be recalled, a clear interest in the success of the action at the center of the proceeding at hand), and it is doubtful in my view how retired judge Arbel, who is agreed that he did not take any part in the parties' contacts up to this point, can, To confidently declare that "this is not an interim stage in the negotiations, but rather a concluding position in which the parties have expressed their intention to enter into a settlement agreement in accordance with the provisions of the minutes.  The meeting constituted a kind of 'consent ceremony,' in which the parties declare that they have reached the agreements written in the prekotocol and undertake to act in accordance with them" (paragraphs 4-8 of his affidavit).
39. Against the background of these reasons, it seems to me that the ability to conclude from the reading of the detail the intention of the parties to enter into its provisions, and certainly to enter into the settlement agreement in a final and binding manner, is highly doubtful. Indeed, case law has recognized the power of consent in conduct to meet the requirement of finality in certain cases (see, for example, the Butkovsky case).  However, we must remember that an event, no matter how festive it may be, cannot come under the intention of the parties to create a legal relationship immediately - which is the foundation without which a binding contract could not be established (and this will be discussed further in the following paragraphs).  Therefore, the festive manner in which the reading of the details was designed by Adv. Weinroth, and on his own initiative, should not be allowed to obscure the nature and significance of the parties' consent, as it arises from the circumstances of the case.
40. These doubts regarding the significance of the "festive" meeting are only the tip of the iceberg, and the first place I devoted to them stems only from the considerable weight that my colleague attributed to this matter. Even if we ignore them, and assume that the "solemnity of the occasion" is significant with regard to the finality of the parties, still, the determination that on this occasion such discretion was formed to bind to the settlement agreement, raises insurmountable difficulties.  These difficulties will now be detailed.

The Trial Judgment

41. First and foremost, the position of my colleague, President Amit, who identifies at the time of the reading of the particulars any meeting of desires with respect to the substantive terms of the settlement agreement, is contrary to the factual determination of the trial court on this issue. In its judgment, the District Court explicitly noted the missing elements in the parties' final opinion with respect to the engagement in detail as a binding contract, with the lack of approvals of the synod and the authorized body in the JNF for the purpose of concluding such an agreement, and the intention of the parties in relation to these (see paragraphs 126-136 of the trial judgment).  In light of the aforementioned shortcomings, given the "formula of contact" set forth in the particular, and in light of its impression of the testimonies it heard, the court ruled that: "Even if I go a long way toward the plaintiff and place the signature of the detail in the name of the Patriarch at the festive ceremony, still, the validity of the detail is, at most, a preliminary agreement, prior to the conclusion of a settlement agreement, without the intention of the parties, and at least the Patriarchate, to perfect it into a binding agreement" (paragraph 136 of the trial judgment.  emphasis in the original).  It will be said hereafter: On the basis of the totality of the evidence before it, the trial court made a factual finding according to which the parties did not treat the details as a binding memorandum of understanding, i.e., they did not view it as a binding settlement agreement.  My colleague's decision, according to which we are dealing with a binding agreement between the parties to enter into a settlement agreement, reverses this determination, and this raises considerable difficulty in light of the rules of intervention that are accepted in the factual determinations of the trial court (and see in this regard, the Rabinai case, at pp.  288-289, in which it was stated that the test of discretion is "a matter of fact determined by the findings of the trial court"); Similarly, the Elhadad case, at paragraph 29, in which it was written that "the question of the existence or absence of discretion is left to the decision of the trial court, as it is the court that hears the witnesses and clarifies the abandoned factual disputes between the parties").

Detail ContentAll - Context Formula and Other Matters

42. Another matter that makes it very difficult to identify the discretion to enter into a settlement agreement at the time of reading the details relates to the content of this document. Naturally, to the extent that the detail does indeed represent the understandings reached by the representatives of the Patriarchate and the representatives of the JNF at the time of its reading, as Himanuta claims, it is possible to learn from the details that appear in it, as well as from those that are lacking, about the intention of the parties to it "in real time" (see, among many: The Rabinai case, at pp.  285-288; Civil Appeal 9255/11 Daniel v.  Anonymous, para.  22 [Nevo] (August 11, 2013); Shalev and Plant, at p.  173).  In our case, a review of the particulars also strengthens the conclusion that it constituted an auxiliary document in the negotiations and not a binding memorandum of understanding.  I will therefore begin with the details that appear in the details, and then turn to the details that are missing from it.
43. First and foremost - the relationship formula. In the framework of clause 6.1 of the Specifications, the parties expressly agreed that without the "full signature" of the Settlement Agreement - the undertakings detailed in the drafts attached to the ParticularAll will not have legal validity ("What is stated in Drafts A and/or B will not be binding on the Jewish National Fund or the Patriarchate except upon the full signature of any of the aforementioned agreements").  Even if we ignore the significance of this agreement on the level of form (which I will elaborate on in paragraphs 66-71 below), on the level of finality, it seems that there can be no more explicit expression of the desire of the parties, who are indisputably well represented, to "postpone" the date of their entry into the binding settlement agreement, whether according to the alternative to the default agreement or according to the alternative agreement, and not to enter into them at this stage.  Indeed, we are dealing with an explicit formula of connection between the particulars and the final agreement - that is, the settlement agreement - which implies that the former will not drag the charges of the second with it until the signing of a draft that reflects one of the alternatives is signed.  To be precise, there is no dispute that the formula of a connection set forth in an interim document is not the be-all and end-all, and that a conclusion regarding the status of the interim document is subject to the totality of the circumstances of the case at hand (see, for example, the Rabinai case, at p.  288; the Ajami case, at paragraph 27, and the references cited therein).  However, we are dealing with one of the exceptional cases in which the parties adopted "clear and explicit language with regard to the 'formula of the relationship'", in a manner that justifies giving significant weight to the plain meaning of what is stated therein (Rabinai, at p.  287; and compare toCivil Appeal 9247/10 Rosenberg v.  Saban, para.  17 [Nevo] (July 24, 2013)).  In this state of affairs, and in view of the other circumstances presented here, it seems that the particular, the document whose legal significance we are analyzing, "is nothing but an intermediate stage" after which "we must wait for the conclusion of the formal contract" (Rabinai, at p.  286).
44. My colleague is of the opinion that despite the appearance of things, a thorough examination of the context formula leads to a different conclusion. According to him, since clause 6.1 deals only with the validity of the settlement agreements (i.e., the two drafts that were attached to the particular) and not with the validity of the detail itself, it should not be inferred from it about the lack of discretion on the part of the parties to enter into the particulars (paragraph 31 of his opinion).  I myself believe that this distinction cannot stand.  Luz's thesis that the private party expresses discretion to enter into the final transaction, i.e., in the settlement agreement, is that the parties have given their consent to enter into the alternative settlement, i.e., in the default agreement (the Patriarchate will compensate Himanuta for $13 million) or, if the Patriarchate so chooses, in the alternative agreement (extending the lease period).  In fact, without this understanding, it is difficult to see how the particulars can be used as a binding memorandum (see paragraph 24 above).  According to the explicit language of the particular, neither the default agreement nor the alternative agreement binds either of the parties, unless they are signed with a "full signature." How, then, can we separate the two things? How can it be determined that the parties decided to view the details of a binding settlement arrangement, and at the same time agreed that the alternatives to the compromise that he establishes, even though they were finally agreed, have no binding effect? Indeed, literally.  The only analytical remedy, it seems, is to recognize that the explicit lack of validity set out in clause 6.1 of the Particulars relates both to the settlement agreements and to the status of the Particulars as a binding memorandum of understanding.
45. Moreover, alongside the formula of the relationship, the detail also includes provisions indicating that the intention of the parties was to enter into the settlement agreement only after the consent of the competent authorities in the patriarchate on the one hand (the synod) on the one hand, and Himanuta on the other (the agreed institutions of the JNF) on the other. Clause 3 of the ParticularAll relates to the need to obtain these consents, and Section 8 of the Detail includes the obligation to make an effort to obtain them.  These provisions also indicate at the time that the parties did not consider themselves bound by a final settlement agreement.  I will address some of them in more detail later (see paragraphs 53-55 below in relation to section 3).
46. So far we have learned from the content that exists in the details; and now to the content that is absent from it. In short, despite the claim that the details contain all the agreements required for the implementation of the settlement agreement between the parties, it is clear that it lacks agreement on issues of principle on which the parties continued to negotiate.  One such issue is the conditions for the patriarchate's engagement with a third party in relation to the land, which, as you may recall, were "percentages" in the hands of the JNF at the time through the warning notes.  The importance of this issue in the eyes of the parties was reflected retrospectively, in the addition of a clause to the latest version of the settlement agreement (the version of April 15, 2008), according to which "the Patriarchate and the JNF declare aware and agree that the Patriarchate finances the payment of the sum...  by a third party"; On the other hand, in Himanuta's demand that the financier limit the compensation that the Patriarchate is required to pay, as expressed by the "Confirmation of Judaism and Zionism" that was attached as an appendix to the final version of the Settlement Agreement, and which the Patriarch is required to sign (see paragraphs 73 and 78 of my colleague's opinion).  It should be noted that at the time of the reading of the particulars, all the contacts between the Patriarchate and the Sofer Group were already in progress, and even if Himanuta did not know about them at that time (so it can be argued that the lack of reference to this at this time is understandable; and compare, in relation to Himanuta's exposure to the matter, to the testimony of Mr. Sofer, at pp.  246-247 of the minutes of the hearing of November 26, 2019), the Patriarchate certainly recognized the importance of the matter - the same importance that ultimately led it to insist on the addition of such a clause.
47. Another issue that was absent from the details, despite its importance, relates to the relationship between the payment imposed by the agreements between the parties on the patriarchy and the return of funds to the JNF, which may be carried out by third parties connected to the fraud affair, headed by Adv. Weinroth himself. As I noted, the last draft of the settlement agreement was accompanied by a letter of protest, according to which in exchange for receiving payment from the Patriarchate, the JNF would assign it its rights vis-à-vis the Weinroth Group in connection with the fraudulent incident (see paragraph 14 above).  In addition, as my colleague describes in paragraph 95 of his opinion, Himanuta clarified in the framework of the preliminary proceeding that if the Patriarchate had upheld the settlement agreement, it "would not have acted to exhaust its rights in the framework of this proceeding vis-à-vis the Weinroth Group." Given the importance of the matter, both on the part of the Patriarchate and on the part of Adv. Weinroth, and in view of the latter's testimony that this was an issue that arose in the early stages of the negotiations as a "precondition for the Patriarchate for any compromise with the JNF" (paragraph 39.c of Adv. Weinroth's affidavit), her absence from the detail and its appendices at the time of its reading is also added to the totality that attests to the lack of discretion on the part of the parties at this stage.
48. In order that the text will not be missing, I will add two clarifications on this matter: First, the argument presented here is that these are issues that were essential to the parties already at the stage of formulating and reading the particular, and not only after a certain time. Thus, for example, it emerges from the testimonies of Himanuta's witnesses in relation to the contacts that took place between the Patriarchate and the third party, according to which Himanuta perceived this issue as vital and decisive already during the contacts between her and the Patriarch (see, for example, the testimony of Adv. Elhanani, at pp.  146-147 of the transcript of December 14, 2017; the testimony of Mr. Duvdevani, at pp.  126-127 of the transcript of March 4, 2019).  The perception of the deficiencies mentioned as support for the conclusion regarding the lack of finality does not therefore express a "runistic" view of the quality of judgment, which mixes early with late and late with early.  Second, it should be clarified that these words are said on the level of finality, and not on the level of specificity.  In other words, the argument is that the aforesaid deficiencies strengthen a conclusion regarding the absence of a meeting of the parties' desires at the relevant time to enter into a binding settlement agreement, and not because they express a defect in the independent condition that deals with giving expression to "the vital and essential details of the transaction" (Rabinai, at p.  288).

The Judgment of the Patriarchate Given the Patriarch's position that he is not authorized to bind it

49. Another insurmountable obstacle to the argument that the particulars are binding on the Patriarchate is that even if this document does reflect the agreements reached by parties who took part in the negotiations surrounding its formulation (such as the parties' lawyers and the Patriarch), it cannot reflect the valid consent of the Patriarchate itself. This is already the reason that the Patriarch has made it unequivocally clear at this stage that he is not authorized to commit on her behalf.  I will clarify this matter.
50. From the testimonies of the parties on one side and the other, it appears that at the time of the alleged termination of the particular, i.e., at the time of its reading, Patriarch Theopoulos believed that he could not commit on behalf of the Patriarchate in a manner that would be legally valid, and he declared this clearly and explicitly before the representatives of Himanuta (see: the testimony of Adv. Elhanani, at p. 118 of the minutes of the hearing of December 14, 2017; the testimony of Adv. Yoeli (representing the JNF and Himanuta).  on page 111 of the minutes of the hearing of February 15, 2018; and the affidavit of the Patriarch, in paragraph 12).  As may be recalled, the Patriarch not only made such a declaration, but also refused to sign the particulars on this behalf, as all concerned knew.  Indeed, as the trial court held, "the Patriarch insisted on his legal prohibitions from signing the agreement and undertaking on behalf of the Patriarchate as long as the letter of recognition was not given"; And from another angle, "the Patriarchate presented to [Himanuta], in real time, a representation of legal impediment in signing the agreement and arguing that the Patriarch does not have the authority to enter into an agreement with it until the State of Israel recognizes his status as the representative and head of the Patriarchate" (paragraph 141 of the trial judgment).  It should be emphasized: These determinations do not mean that the Patriarch did not take seriously the negotiations that took place between the parties, including the details.  On the contrary, it can be learned from the evidence that the Patriarch saw himself as bound by what was stated in the particular, and intended to act in accordance with it (for example, to raise the issue of the settlement agreement before the Synod; and see the testimony of Adv. Elhanani, at p.  118 of the transcript of December 14, 2017).  This means that the Patriarchate, like the other parties that took part in the formulation of the Detail and at the time of its reading, including the representatives of Himanuta, was clear to the Patriarchate at this stage that the Patriarchate does not have an authorized representative who is entitled to commit on its behalf to a binding settlement agreement.  If so, not only was there no discretion on the part of the Patriarchate to bind a binding memorandum of understanding, but there was also no party present at the "festive" meeting that purported to act as authorized to bind it in the final settlement agreement.

NoteA situation in which there is no party authorized around the negotiating table to bind one of the contractors (or both) to the final agreement is not at all uncommon.  Thus, for example, it occurs in any situation in which negotiations on behalf of a corporation are managed by entities (employees or lawyers) who are authorized to negotiate on its behalf, but not to enter into a binding agreement.  In this situation, any agreement reached during the negotiations will not bind the corporation until it is approved by the competent authorities to bind the corporation to such agreements.

51. The aforesaid position of the Patriarch, according to which he is not authorized to commit on behalf of the Patriarchate, legally precludes the possibility of attributing to the Patriarchate the discretion to enter into a memorandum by virtue of his consent to the particular, even if it was given (as determined by the District Court), and even if it referred to the final settlement agreement (as opposed to what the District Court determined). This is simply the case, since an agent who chooses not to act as an agent (especially because of his belief that there is a defect in his authority to act in this way) does not obligate the sender even if it turns out at the end of the day that he (the agent) erred in the question of the authority given to him.  Without elaborating too much on this issue, I will note that the matter stems from the "principle of representation" underlying the laws of courier, according to which a legal action by the agent will be recognized as valid in relation to the sender only when it was done "in the name or in place" of the sender (section 1 ofthe Courier Law, 5725-1965).  It should be noted that although the requirement regarding the performance of the action "on the behalf" of the sender depends on an objective test, i.e., it is fulfilled only "when the third party knows or should have known that the legal action is being carried out by the agent not only so that he will be a party to the legal relationship, but for the purpose of granting rights and obligations directly to the sender" (Aharon Barak, The Shlichut Law, vol.  1, 375-376 (2nd ed.  1996)), in our case there is no doubt that this is not the case.  For this position of the Patriarch, according to which he is not authorized to commit on behalf of the Patriarchate, was well known to the representatives of Himanuta, as explained above.  Against this background, the Patriarch's unwillingness to commit himself in the name of the Patriarchate at this stage (as expressed from an objective point of view), whatever the reason, negates the possibility of arguing that the Patriarch's actions can be attributed to the patriarch with the discretion to be bound by a binding memorandum.
52. To be precise, the determination that the Patriarch's refusal to commit on behalf of the Patriarchate negates the possibility of seeing him as having committed on its behalf is correct even if we assume that there was no "legal impediment" in practice, and the Patriarch was authorized to bind the Patriarchate and sign the agreement on its behalf at that time (and compare, in this regard, paragraphs 35-38 of my colleague's opinion). Thus, our issue is not a question of authority to represent, but rather a question of intention to represent.  Indeed, the existence of a power to undertake in a different name does not necessarily indicate an intention to exercise it in a given case.  To illustrate, it is possible to imagine a situation in which the CEO of a company, who is authorized to undertake in agreements on its behalf, clarifies to the other party that, despite the authorization given to him, due to the exceptional scope of the transaction at hand, he does not intend to approve the engagement on behalf of the company, but rather he will bring about approval by the company's board of directors.  Is it conceivable to claim that in these circumstances the company would be obligated even without the approval of the board of directors? And if so, when the CEO knows that he is qualified, and refrains from acting by virtue of the authorization, how will the situation be different if the CEO believes (rightly or wrongly) that he is not qualified in the first place? The conclusion is therefore that even in the realm of representation, there is an impediment to viewing the details as an agreement that binds the patriarchy.

The Requirement for the Approval of the Accredited Institutions

53. Section 3 of the Particular, which consists of a number of provisions, includes two stipulations concerning the approval of the authorized organs of both parties - the synod on the one hand and the JNF-authorized institutions on the other - of the provisions of the Settlement Agreement. In its judgment, the trial court ruled that the two aforementioned conditions embody "preliminary conditions" for the perfection of the agreement, i.e., conditions that before they are fulfilled, no binding agreement has been entered into (see paragraphs 126-129 of the trial judgment).  The trial court also added and drew a conclusion from this interpretation of the particular, which it learned "from the language of the agreement and the intention and conduct of the parties", regarding the lack of discretion of the patriarchate to enter into a binding agreement, before the approval of the synod is given (paragraphs 132, 134 of the trial judgment).  My colleague, for his part, is of the opinion that the work of classifying the aforesaid contractual provisions, whether as preliminary conditions (this is how he tends to classify the condition that deals with the approval of the JNF institutions), whether as suspension conditions or as obligations (this is how he tends to classify obtaining the approval of the synod by the Patriarch), is of no relevance, since in any case, in his opinion, the two conditions in question were fulfilled - and therefore, in any event, it cannot be said that these provisions constitute an obstacle to the recognition of the particulars as a binding contract (see paragraphs 48 and 54 of his opinion).
54. Even if I ignore the difficulty that comes with accepting the "confidentiality" of the approval process by the competent bodies in the JNF, in the definition of the term that it was accepted almost without any evidence of this (see paragraph 56 of my colleague's opinion), I am of the opinion that the provisions dealing with the approvals of the institutions indicate a difficulty in formulating a final opinion within the framework of the particular. In the details, it was determined that the compromise agreement - and not the detail itself - would be brought to the approval of the synod and the authorized institutions of the JNF ("The elected patriarch, Theopoulos III, will be responsible for receiving the approval of the Holy Synod for the compromise agreement (Draft A), the compromise agreement (Draft A) will be brought to the approval of the authorized institutions of the Jewish National Fund, and subject to this approval, it will be..").  The simple meaning of this is that the parties intended that their engagement with the undertakings in question would depend on the approvals of the relevant bodies (and according to my colleague's approach, this is only with regard to the approval of the competent bodies in the JNF).  In any case, it is not clear how it is possible to identify the particulars as a binding memorandum of understanding, within the framework of which the parties have already decided to legally enter into a legal engagement with the obligations specified in the drafts, since such identification implies that the parties' obligation in one of the drafts is also without the approval of the competent institutions (which indeed never approved any of the drafts), and this is contrary to the said parties' consent.
55. It should be emphasized that this result, according to which an undertaking was formulated to delete the warning notes against the payment of compensation without the approval of the bodies mentioned in paragraph 3 of the particular, is not possible not only from the perspective of the Patriarchate, but also from the perspective of the JNF. I will clarify this matter.  My colleague also relates to the division between the detail and the settlement agreement in the context of the necessary approval of the JNF officials, but according to him this division, in the definition of the settlement agreement, and not the particular, that requires such approval, leads to the (prima facie) conclusion that the binding validity of the detail would have remained in place even if the approval had not been received (see paragraph 54 of his opinion).  In my opinion, this way of gearing only clarifies how difficult the conclusion that the detail is more than a non-binding reference paper.  This is because it inevitably leads you to the conclusion that the particular, which includes, as you recall, the deletion of warning notes or alternatively the acquisition of rights in the land, reflects the JNF's discretion without any official body on its behalf confirming it.  Such a conclusion cannot be reached.

The Conduct of the Parties After the Reading of the ParticularAll

56. In many judgments in which the validity and status of an interim document were examined, the conduct of the parties after the alleged conclusion of the agreement was established as a significant criterion regarding their intention to enter into a binding agreement. Simply put, the parties' action in accordance with the obligations in question supports the conclusion that their intention was to subject themselves to a binding agreement (see, for example: Civil Appeal 571/79 Maxim Apartments in Tax Appeal v.  Jerbi, IsrSC 37(1) 589, 594-596 (1983); Civil Appeal 1049/94 Dor Energy in Tax Appeal v.  Hamdan, IsrSC 50(5) 820, 831-832 (1997)); Whereas the non-fulfillment of these obligations weakens such a conclusion (see: Civil Appeal 202/67 Blotman v.  Ashkenazi, IsrSC 21(2) 699, 702 (1967); the Elhadad case, para.  32).  In our case, an examination of the actions of the Patriarchate and the JNF after the reading of the particulars raises an additional doubt, if not more, as to their intention to regard the particulars as a valid contract.
57. As may be recalled, according to clause 3 of the Particular, which is to a large extent the heart of the alleged agreement, the receipt of the letter of recognition from the Government of Israel was supposed to trigger a chain of actions, the main of which was the receipt of the approvals of the synod and the authorized institutions in the JNF on the settlement agreement, and the signing of it by the parties "within 7 days of the government's approval." In practice, however, neither its names nor parts of it were granted: on December 24, 2007, the Patriarch was given the letter of recognition, but all that happened afterwards, in the words of the trial court, was that "[...] Apparently, following Himanuta's request, contacts between the parties regarding the signing of the settlement agreement were renewed, and a number of meetings were even held in Tel Aviv and Jerusalem..." (paragraph 32 of the trial judgment). Indeed, the receipt of the letter of recognition did not lead the parties to move forward according to what was stated in the particular, but only to continue discussing various details, to remove and add various conditions, and in short, to continue the negotiations.  Subsequently, an examination of the evidence shows that during this period after the issuance of the letter of recognition, no use was made (even rhetorically) by the parties to the claim that the settlement agreement had long since been concluded, even though in view of the disputes that arose at this stage, this could have been expected.  It should be clarified that the letter of recognition was indeed given late in relation to the date set for it in the particular, but this does not raise or lower the matter in our case, at least given that according to Himanuta's version (which was accepted by the trial court) all the relevant parties expressed their willingness to "continue as usual" despite the delay (see paragraphs 44-45 of my colleague's opinion).
58. Only about two and a half years after the negotiations failed, did Himanuta take any legal action in relation to the particulars (a request dated December 20, 2010 to amend her statement of defense in the Patriarchate lawsuit, which included the addition of grounds related to the alleged binding validity of the particular). Moreover, even when Himanuta had decided to file such a claim, it did not adhere to the original provisions of the Particularist (as they were at the time of the alleged conclusion), but rather based its claim on later stages of the negotiations (such as the last draft of the Settlement Agreement, which was transferred between the parties on April 15, 2008).  Thus, the parties did not act in real time in accordance with the provisions of the Particular, and this fact is well consistent with the conclusion that at most they saw it as a basis for the continuation of the negotiations taking place between them.
59. Summary of this section: In my view, the circumstances of the case indicate that both the Patriarchate and Himanuta did not intend to enter into a binding compromise agreement through the particular. As detailed above, this conclusion is based on a very wide range of reasons, some of which were sufficient to justify it: an examination of the "solemnity" of the occasion of the reading of the detail with a critical eye; the trial court's factual determination in the framework of its judgment; the content of the details, centered on the explicit formula of the relationship established by the parties; the patriarch's apparent refusal to commit himself on behalf of the patriarchate at the relevant point in time; The provisions of the DetailAll relating to the approvals of the accredited institutions; and the conduct of the parties after the date of the reading of the particulars.  Although in my opinion these matters are sufficient to reject Himanuta's position on the issue of the status of the particular, I will now relate to another level that leads to a similar conclusion - the requirement of form.

Shape requirement

60. Section 23 of the Contracts Law, entitled "Form of Contract", provides as follows: "A contract may be made orally, in writing or otherwise, unless there is a certain form that is a condition for its validity by law or agreement between the parties." While the first part of the section expresses the principle of freedom of contract in its positive sense, as it expresses the freedom of the parties to shape their contractual obligation in any way they wish, the second part reflects a limitation of this freedom (Friedman and Cohen, at pp. 462-463; Shalev and Plant, at p.  263).  In this last context, the section specifies two types of qualifications - form limitation by virtue of law; and form limitation by virtue of an agreement.
61. As will be detailed in the following paragraphs, these two types of qualifications must be taken into account in the framework of examining the binding legal validity of the particular: one, which originates from the consent of the parties, in the signature requirement set forth in the particular; and the second, whose force derives from the law, in a written requirement under section 8 ofthe Real Estate Law. In my view, the path to recognizing the details as a binding memoir, even if it were to cross the "hurdle" that concerns the finality of the parties' opinion (and as detailed above, I believe that we are as far from it as a bow of gold), is blocked by the force of the hurdles that stand on the plane of the requirement of form.  Before I explain what leads me to this conclusion, I will briefly discuss three theoretical aspects of the form requirement that will contribute to the continuation of the discussion.
62. One aspect is the purposes of the form requirement in contract law. The two goals that are usually identified as central in our legal system are the deterrent and the evidentiary  The first purpose is essentially concerned with the placement (or validation) of barriers to reckless and frivolous engagement by a party to the contract (see: Friedman and Cohen, at p.  466; Shalev and Maach, at p.  264).  The purpose of deterrence rests on the assumption that limiting the parties' behaviors that create a contractual relationship to those that maintain a defined formal pattern will, as a rule, require additional exercise of discretion before the parties enter the gates of the binding engagement; and also on the assumption that such additional discretion is desirable, at least in relation to certain engagements (in particular, those that are of special importance from the perspective of the contractors).  It should be noted that this purpose of the requirement of form is particularly relevant when it comes to a written requirement, since the assumption is that "written words express more seriousness than oral words" (Friedman and Cohen, at p.  466).  Moreover, it appears that even in the validity that section 23 of the Contracts Law grants to a formal requirement that the parties set for themselves by virtue of an agreement (for example, when they stipulate that any future change of the contract will be made in writing), there is an embodiment of the legislature's recognition of the deterrent value of a formal condition, whatever its source.  The second purpose, the evidentiary one, is concerned with the external-objective anchor that creates, as a rule, the fulfillment of a formal requirement.  Given the strength of this anchor in comparison with the oral evidence, it is of particular value when we come to understand in retrospect what happened between the parties, including the status they sought to confer on the agreements reached between them (see: Friedman and Cohen, at p.  467).

In continuation of the two aforementioned purposes and in connection with them, the importance of the form requirement In the section 23 30The Contracts Law It also stems from being Sorting Mechanism of the conduct of the parties - whether one that amounts to a legal act of creating a contractual obligation or one that does not carry with it the legal significance of the creation of a binding contract (both on this function of the requirement of form and on its connection to the two purposes mentioned above, see: Lon L.  Fuller, Consideration and Form, 41 Colum.  L.  Rev 799 (1941); Additional Civil Hearing 7818/00 Aharon v.  Aharoni, IsrSC 59(6) 653, 669 (2005)).  From the perspective of this purpose, the form requirement creates clear rules for distinguishing between types of obligations and helps the parties (but also parties external to them, especially the court) to understand whether and when they enter the gates of the legal obligation.  In the words of Prof.  Daniel Friedman and Prof.  Nili Cohen: "The formal pattern constitutes a means of distinguishing between a contract and a non-binding promise or agreement, or words and behavior that have not yet been formulated into an agreement and in respect of which it can be said that the parties have not yet decided to commit.  The use of a formal pattern may indicate the formulation and seriousness of the agreement, that the negotiation phase has ended, and that the matter has gone beyond mere talk" (Friedman & Cohen, at p.  390).  In this sense, the form functions as legal language through which the parties clarify their intention.  As will be explained below, the great importance of this element of the requirement of form is also expressed in the present case.

63. The second aspect is the nature of the requirement of form. As a rule, it is customary to distinguish between two types of form requirements: first, a substantive requirement, in which form is perceived as an essential element for the very existence of the contract, according to which the legal validity of the contract depends on compliance with the formal conditions required in the circumstances of the case.  The second is an evidentiary requirement, according to which the contract may be perfected even without meeting the formal conditions, but their absence constitutes an obstacle to proving the existence of the contract (see: Friedman and Cohen, at pp.  478-479; Shalev and Plant, at pp.  263-264).  As will be explained below, the two requirements of form in our case, both the signature requirement and the written requirement, are essential, i.e., they are required for the purpose of establishing the binding legal validity of the (constitutional) settlement agreement.  In any event, their non-fulfillment necessarily leads to a conclusion regarding the non-existence of a binding settlement contract between the parties (subject to what is stated in paragraph 78 below; see and compare: Friedman and Cohen, at pp.  479-481; Shalev and Mamach, at pp.  271-272).
64. The third and final aspect is related to the analytical separation between the element that concerns the parties' discretion and the requirement of form. Although the requirement of form sometimes serves as a tool that assists in assessing the willingness of the parties to enter into a binding agreement, and although it sometimes realizes the principle of freedom of contract (see paragraphs 60-62 above), it is important to avoid blurring the differences between it and the terms of discretion, and from uniting these in the framework of a "general" examination of the validity of the agreement in question.  As it emerges from the purposes of the form requirement, as well as from the legislature's separate reference to it (in section 23 of the Contracts Law, as opposed to sections 2 and 5 of this law, in which the element of discretion is mentioned), these are different doctrines from one another, each with its own theoretical basis, a different living space and distinct foci (see, in this regard: Uriel Reichman, "The Proprietary Consequences of the Rule of Sharing Assets between Spouses After the Beginning of the Beginning The Land Law, 5729-1969" Iyunei Mishpat 6 289, 300 (5738); and compare Friedman and Cohen, at p.  433).  In light of this, it will be clarified at this point that the conclusion that I will reach below with respect to the non-fulfillment of the formal requirements in this case, as well as the result of this conclusion (i.e., the non-binding of Himanuta and the Patriarchate in a binding agreement), is valid in itself, independent of the conclusions with respect to the issue of finality discussed above.
65. As I have already mentioned, in the present case, two instances of the form requirement are relevant to the examination of the binding validity of the particular: one, a signature requirement by virtue of the parties' consent, as it appeared in the particular; The second is the written requirement in relation to a real estate transaction. I will now diagnose these occurrences in this order.

Signature Requirement

66. As described above, Section 23 of the Contracts Law recognizes the ability of the parties to agree on a formal demand, as a condition for the formation of a contract between them, in other words - to tie their hands, so that an engagement will be formed only after the formal requirement is met. In fact, this can be seen as a direct continuation of the realization of the principle of freedom of contract, which in this case is expressed in giving the parties the power to limit the forms of the contract that will establish a legal obligation between them.  Indeed, "the freedom of contract, and the freedom of form that derives from it, also extends to the freedom of the parties to limit themselves.  An agreement in which the parties determine the form of a future contract between them also reflects their freedom of contract and their determination must be respected, the permissive mouth is the mouth that is entitled to prohibit" (Shalev and Zamach, at p.  263; and see specifically regarding the signature: Friedman and Cohen, at pp.  529-530).  It is therefore the "negative freedom" of the parties not to enter through the legal gates of a valid contract, when it is not done in the manner to which they sought to adhere (see also: Civil Appeal 4933/17 Green (Ivgy) v.  Friedman, paragraph 37 [Nevo] (October 11, 2020) (hereinafter: the Friedman case)).  I will further clarify that such an agreement is a contract regarding the manner of conducting the negotiations, which I discussed in paragraph 18 above, and therefore there is no difficulty in concluding that it binds the parties even before a final agreement has been formed with respect to the main engagement.
67. In our case, including the particular, any explicit expression of the intention of the parties to make the conclusion of the settlement agreement conditional on their signing thereof, as if to say: without a signature - there is no final binding agreement. This is the wording of the detail clause in which this condition is stipulated:
68. For the avoidance of doubt:

6.1.  What is stated in Drafts A and/or B will not bind the Jewish National Fund or the Patriarchate, except upon the full signature of any of the aforementioned documents as stated in Section 3 or 4 above (as applicable); and all the rights of the parties towards each other and towards any other party are fully reserved.