(emphasis added)
A reading of the details in its entirety reveals that clause 6, including clause 6.1, is placed as a general provision, a "shell provision", if we wish, separate from the details of the obligations attributed to the parties (which are mainly detailed in clauses 2-5 of the particular). This is what is implied by the location of this section - after detailing the aforementioned undertakings and in conjunction with other sections dealing with the right to renounce the obligations (section 7), the obligation of mutual effort (section 8) and signature (sections 9-10); This is what is implied by the phrase "for the avoidance of doubt", which refers to the preceding provisions of the Particulars; This is what is implied by the content of the section, which includes two separate provisions (within the framework of clause 6.1 and clause 6.2) that deal with the validity of the parties' obligations (as opposed to their details). As part of these envelope provisions, it was therefore clarified, in an unambiguous manner, that the obligation of the parties to the stipulations set forth in the default agreement or in the alternative agreement is conditional on "Full Signature" of the parties on one of these drafts. The wording of this provision in the negative ("The aforesaid... It will not be obligatory... but with...") can be seen as reinforcement of the constitutive status of the signature requirement under this section. In my opinion, the simple meaning of this is that the requirement of signing agreed upon by the Patriarchate and Reliability is a substantive (and not evidentiary) requirement, i.e., a condition without which there is no fulfillment of a future contract (see: Friedman & Cohen, at p. 492; and that this conclusion must be reached by means of interpretation, Peaceful and Plant, at pp. 270-271).
- As stated, neither the Patriarchate nor Himanuta signed the undertakings set forth in the default agreement or in the alternative agreement - not directly, by signing the drafts attached to the detail (or later versions thereof), and not by indirect way of signing the detail itself (without addressing the question of whether such a signature would have met the signature requirement set out in clause 6.1 of the particular). The direct result of this fact, in light of what I said above with regard to the status of the signature requirement in the circumstances at hand, is that "what is stated in Drafts A and/or B will not obligate the Jewish National Fund or the Patriarchate" (in the words of section 6.1).
- It should be clarified: as has been stated more than once in our case law, "there is no sanctity in signing", in the sense that from the perspective of general law, a contract can be valid against the parties even without their signature on it, and in this sense that not in every case in which a document is signed by the parties is a binding contract (see: paragraph 30 of my colleague's opinion; Civil Appeal 5511/06 Aminoff v. Levy Investments and Construction Ltd., paragraph 12 [Nevo] (December 10, 2008); the Ajami case, at paragraph 30 and the references cited therein). However, we are dealing with a different "sanctity" - the sanctity of the form of the contract within its boundaries, and only in them, did the parties before us agree to conduct themselves in their legal relations. It should be said from now on: In the contractual context, the signature is not sanctity in the eyes of the general law designed by the legislature and the courts, but it may have sanctity in the eyes of the private law that the parties have designed for themselves. As detailed above, the importance of the form requirement derives from a number of essential purposes that underlie it, and the present case illustrates these purposes, and sharpens the need to respect the formal requirement that the parties set for themselves. First, the signature requirement, which was agreed upon by the negotiators and the grantors, is intended to narrow the opening leading to its engagement in the default agreement (or in the alternative agreement), or if we wish, to create a hurdle between the point on the timeline at which the detail was made, and the future (and possible) point on this axis at which the engagement will be made in a binding settlement agreement. In this sense, respecting the requirement of form in our case fulfills its purpose as a "deterrent" factor against reckless engagement, in the form of the parties' self-restraint to this formal mechanism (see paragraph 62 above). Further to this, read section 6.1. In detail, in which it was determined ("for the avoidance of doubt") that only a "full signature" would bind the parties to the provisions of the drafts, indicates in my opinion that the parties' agreement to create a formal device for sorting out the significance of continuing the contacts between them in relation to the validity of the settlement agreement. In this sense, the fact that the parties did not sign the drafts attached to the details is not only consistent with the conclusion, which is supported by the circumstances of the case, that they did not intend to enter into the settlement agreement, but also significantly strengthens this conclusion (for the connection between the level of form and the level of finality in connection with a signature requirement created by virtue of the parties' consent, cf. Friedman and Cohen, at pp. 529-530).
- The answer given by my colleague to these arguments, it seems, is that according to clause 6.1. The detail does indeed require a signature by virtue of the consent of the parties, but it relates to the drafts accompanying the detail, and not to the detail itself - the document whose validity is the focus of the discussion (see paragraph 31 of my colleague's opinion). However, in continuation of what I have already written (paragraph 44 above), I am of the opinion that this position seeks to separate the inseparable. Given that we are dealing with the question of whether patriarchy and reliability are responsible to each other in the terms of the default agreement (which were detailed in Draft A that was attached to the particular), the focus of our discussion is not on the validity of the particular, as a document regulating the continuation of the negotiations, but rather in its power to formulate a binding settlement agreement, i.e., as one that becomes binding on the provisions detailed in the drafts. Against this background, the "full signature" requirement that was set as a condition for the entry into force of these undertakings ("what is stated in Drafts A and/or B"), is certainly relevant to our decision on the validity of the particulars as a binding memorandum of understanding.
- The conclusion of this point, even if I assume that the totality of the circumstances of the case attests to the finality of the Patriarchate's mind with respect to the engagement in detail (and as stated, I do not believe so), it is not possible to derive from this an undertaking by the Patriarchate in the provisions of the Settlement Agreement. Thus, because by virtue of the explicit consent of the parties within the framework of the Settlement Agreement itself, the engagement in the Settlement Agreement requires a signature, and without such a signature - what is stated in the Default Agreement and the Alternative Agreement is not binding on the parties.
Writing Requirement
- And now to the requirement of the writer by virtue of the law. Section 8 ofthe Real Estate Law instructs that "an undertaking to make a real estate transaction requires a written document", while "a real estate transaction" is defined as "the acquisition of ownership or other right in real estate according to the will of the grantor, except for inheritance by will" (section 6 of the Real Estate Law). As is well known, this requirement has been recognized in our case law as a substantive requirement, which means that the binding legal validity of a real estate transaction is conditioned on the existence of a written document anchoring the parties' undertaking (see, among many: Civil Appeal 986/93 Kalmar v. Guy, IsrSC 50(1) 185, 190-191 (1996) (hereinafter: the Kalmar case); Civil Appeal 8234/09 Shem Tov v. Peretz, IsrSC 66(3) 60 (2011) (hereinafter: the Shem Tov case); In Tax Appeal 1270/23 Anonymous v. Anonymous, paragraph 12 [Nevo] (September 6, 2023)). The case before us raises two questions in this context: first, do the elements of the transaction that are the focus of our discussion, i.e., the settlement agreement claimed by Himanuta, include an "undertaking to make a transaction in real estate" - that is, did a written requirement arise in our case under section 8 ofthe Real Estate Law? Second, to the extent that the answer to the first question is in the affirmative, is it possible to view the particulars as a written document that expresses the same "undertaking to make a transaction in real estate" - i.e., does the particulars fulfill the written requirement? I will now address these questions, in their order.
Did a written requirement arise in our case under section 8 of the Real Estate Law?
- The particular, as may be recalled, includes a choice between two possible agreements for the engagement of the Patriarchate and Himanuta: one (which I called the "default agreement"), the payment of compensation in the amount of $13 million by the Patriarchate in exchange for the deletion of the warning notes; and the second (called, as you recall, the "alternative agreement"), the extension of the lease in the land in favor of the JNF for about 150 years in exchange for a payment of $4.5 million by the JNF. From paragraphs 2-3 of the Particular, it appears that the first alternative was set in such a way that it would exist in the absence of any other positive choice, while section 4 establishes the Patriarchate with an option to choose the second alternative, i.e., the alternative agreement, if it notifies the JNF in writing within the period of time defined in the section (see, with regard to the mechanism of choice between the two alternatives, paragraph 59 of my colleague's opinion). Ostensibly, the mechanism described does not obligate the Patriarchate to execute a real estate transaction, but only grants it a "right of choice" between payment of compensation and a real estate transaction. The question is whether an agreement that obligates a landowner to choose between these two alternatives is an "undertaking to deal in real estate". I would like to leave this question to be examined, given the legal difficulties it raises (the case law that dealt with the status of an option contract in the context of the written requirement did indeed determine that "an 'undertaking to make a real estate transaction' is also an option to purchase a real estate property in the sense of" (Civil Appeal 270/74 Barzilai v. Heirs of the Late Gershon Greenbaum, IsrSC 29(1) 658, 661-662 (1974); See also: Civil Appeal 273/78 Grossman v. Caspi, IsrSC 33(3) 300, 303 (1979); Civil Appeal 3931/16 Mor v. Nachmani, para. 11 [Nevo] (September 5, 2018) (hereinafter: the Mor case); Friedman and Cohen, at p. 496). However, the aforementioned judgments dealt with cases in which the right of exercise anchored in the agreement in question is given to the purchaser (a call option), and therefore he can force the landowner to part with the rights therein. The situation may be different when the right of choice is given to the landowner ( the put option), so that the agreement leaves him with the choice of whether to transfer the rights in the land or pay a sum of money). However, in our case, there is an additional element in the mechanism set forth by the parties in the settlement agreement, which in my understanding becomes an engagement to commit to a real estate transaction from the perspective of the patriarchy. I will clarify this matter.
- The transaction that the parties are supposed to make according to the default agreement (the default agreement) is the deletion of the warning notes that were registered in favor of Himanuta against the payment of compensation by the Patriarchate. There is no doubt that, as a rule, an undertaking to delete a warning note, with or without consideration, does not amount to an "undertaking to execute a real estate transaction" that establishes a requirement to anchor it in a written document (see, for example: Civil Appeal 472/86 Ezer v. Azariahu, IsrSC 42(3) 236, 241 (1988); Friedman and Cohen, at p. 501). In any event, insofar as we were dealing only with such an undertaking by the JNF against an obligation to pay on the part of the Patriarchate, the provision of section 8 of the Land Law would not apply. However, an examination of the text of the default agreement, which was attached to the details at the time it was read, reveals that it included a stipulation according to which the failure of the Patriarchate to pay on the set date would lead to the automatic "activation" of the alternative agreement, i.e., the Patriarchate's undertaking that the period of the land lease by the JNF would be extended by an additional 150 years. In the language of the section:
7.3 It is agreed that if, for any reason, the Patriarchate does not pay the JNF the sum stated in section 3 above in full and on time, without derogating from the right of the JNF to any other or additional remedy, the matter will be deemed, in itself (sic) as if the Patriarchate has chosen to enter into a settlement agreement with the JNF in accordance with Draft B attached to the details of all mentioned in section 11 below. and as if an agreement as stated in Draft B was signed on the date on which the payment should have been made, as stated in section 3 above...