It should be noted that the patriarchate's consent to the settlement agreement, which is based on the two draft appendices that accompanied the particular, includes in any case an agreement, even if one that is subject to the existence of certain circumstances, to carry out a real estate transaction (see also the testimony of Adv. Elhanani in his cross-examination, in the transcript of the hearing of December 14, 2017, at p. 74). If so, this transaction requires a letter according to Section 8 30Real Estate Law.
- The conclusion that arises from these words, therefore, is that the binding validity of the particulars vis-à-vis the parties depends not only on compliance with the signature requirement agreed upon by the parties, but also on compliance with the written requirement by virtue of the law. Thus, since we are dealing with an agreement that includes, for certain reasons, an agreement by the Patriarchate to transfer lease rights for generations to the JNF. It is precise, even if we look beyond the details of the settlement agreement, with its two alternatives, to the totality of the circumstances of the case, we find that this is the proper conclusion, since we are undoubtedly dealing with a transaction of considerable economic significance, both according to the default agreement (which deals with the deletion of cautionary notes against payment of $13 million) and according to the alternative agreement (which deals with the granting of lease rights for a period of about 150 additional years in exchange for payment of $4.5 million). In these circumstances, and against the background of what I have said above regarding the purposes underlying the requirements of form, it seems to me that this is a case in which the elements that justify a written requirement are met (see: Shem Tov, at pp. 84-85; Avi Weinroth, Property Law - Basic Chapters 260-261 and the References Cited there (2nd edition 2020); Friedman and Cohen, at p. 470).
Is the written requirement fulfilled inPartikal?
- In the circumstances of the case at hand, was the written requirement fulfilled at the time the details were read? As will be explained now, despite the fact that the detail is a written document, the answer to this is no.
According to the plain meaning of the word, the fixed requirement In the section 8 30Real Estate Law is that The Commitment The transaction will be done in writing. Although in the spirit of softening the demand that occurred over the years, there were those who believed that it was sufficient that the document clearly "testified" to the existence of the undertaking (see: Civil Appeal 380/88 Toucan v. Alnashishibi, IsrSC 45(5) 410, 423 (1991)), it seems that the prevailing approach in our legal system still requires that the document express (i.e., embody, and at the very least, ratify) the undertaking of the owner of the rights in the land (see: Civil Appeal 3205/00 Natour v. Yassin IsrSC 55(4) 145 (2001); Ofer Grosskopf "Proposed Property Law Law: Great Hopes - Modest Fulfillment" Law 36 413, 447 (5767); Friedman & Cohen, at p. 434; Peaceful and Plant, at pp. 266-267; Yoram Cohen "Section 8 30Real Estate Law, 5729-1969 - The Content of a Written Document and the Status of Oral Agreements" Law 11 311, 318 (5741)). The logic for this requirement is rooted, in essence, in the essential nature of the fixed written requirement In the section 8 30Real Estate Law, which means that "[if] No document was made, the parties did not do anythingand its purposes described above, which are at the center of "Deterring a person from making a hasty and frivolous commitment" (Civil Appeal 726/71 Grossman and KBK Registered Partnership v. Biderman EstateIsrSC 26(2) 781, 789 (1972); Friedman & Cohen, at pp. 479-480; Peaceful and Plant, at p. 266).
- In our case, it cannot be said that the particulars constitute a written expression of the Patriarchate's commitment to the Settlement Agreement. Precisely, there is no dispute that the particulars are a written document, but, as stated, it is not enough that there is a written document in relation to the transaction, but it is required that this document express the consent of the owner of the rights in the land - i.e., the patriarchy - to enter into the settlement agreement. In our case, the patriarch's consent to the details was determined, as will be recalled, from external testimonies regarding his conduct at the time of signing. In other words, this is a claim of oral consent by a landowner to a written document, and not a claim of a written document that expresses the landowner's obligations. Therefore, even if I accept that these testimonies do indeed indicate consent in conduct on the part of the Patriarch, and despite the fact that these testimonies are given written expression in the particulars (in paragraph 10 of the particulars - "this detail was signed for evidence by...") - then we are not dealing with written consent on the part of the Patriarch, and certainly not on the part of the Patriarchate (and this is even detached from the question of the representation of the Patriarchate, which I discussed in paragraphs 49-52 above). Moreover, as has already been shown, the failure to put the undertaking itself in writing was deliberately on the part of the Patriarch, and with the knowledge of all the participants in the meeting (see: testimony of retired Justice Arbel, transcript of the hearing of February 15, 2018, at p. 71: "I understood from him [Adv. Weinroth]... That since it was impossible for reasons I don't know, to make a written consent and sign the parties, so he intended that there would be some kind of ceremony... in which the consent of the parties is demanded"). Subsequently, the signature of Adv. Weinroth and the retired justices on the particulars cannot constitute a written undertaking by the Patriarchate, for the simple reason that they did not represent it, and their signature cannot constitute a written expression of an undertaking on its part. Finally, although the attorneys on behalf of the Patriarchate were familiar with the detail before it was read, and also took a certain part in the process of formulating it, there is no doubt that the JNF (together with Adv. Weinroth, whose status I have discussed in the circumstances above) led its composition and formulation. Hence, from this perspective as well, it is not possible to see in every detail a written document that expresses the will of the Patriarchate.
The sum of these factors is sufficient to distinguish our case from judgments in which the written requirement was softened in various ways, and in particular from the circumstances in respect of which the judgment was given in the matter Botkowski - In its context, the court justified its sufficiency with the document presented in that matter (a record at the end of the negotiation meeting) on the fact that the document in question was written by the manager of the seller in his own handwriting, and "Drafted as a binding agreement, without any indication that it was written in order not to create a legal obligation" (עניין Botkowski, at p. 70). In any case, this document could be seen as expressing the seller's undertaking, undertaking to carry out a transaction in the real estate (even if not those of the purchasers - who Section 8 30Real Estate Law In any case, it does not apply to their obligation). Indeed, our matter is completely different, since, as it is clarified, it is not possible to consider in any detail any document prepared by the Patriarchate, the Patriarch or anyone on their behalf. In these circumstances, it is clear to me that to the extent that there is a requirement that the Patriarchate's undertaking be made in writing, this requirement has not been fulfilled - neither in the details itself nor in any other document (see and compare: Friedman & Cohen, p. 533).
- And it should be clarified: Even if I accept the position that the principle of good faith can sometimes allow for overcoming the requirement of form, in the sense that the binding validity of a contract will be recognized even if the written requirement in section 8 of the Real Estate Law has not been fulfilled (see: Friedman and Cohen, at pp. 535-537; Shalev and Maach, at pp. 272-276), this does not change my conclusion in our case. The main reason for this is that the case law that recognized the aforementioned possibility also limited the exception to "special and exceptional" cases (Kalmer, at p. 197) in which insistence on the written requirement constitutes "an instrument for severe and unjustified harm to others" (Friedman and Cohen, at p. 537; See also the Shem Tov case, in paragraphs 21-24 of the judgment of Justice Esther Hayut). As will be presented later in my opinion, in my opinion, the conduct of the Patriarchate was not tainted by bad faith, and all the more so by a lack of good faith that gives rise to a "cry of fairness" (see paragraphs 83-91 below). In any case, the case before us is certainly not one of the exceptional cases in which the principle of good faith allows the written requirement to be overcome.
On the Place of the Requirement of Formality in Contract Law
- Before concluding this chapter, I would like to add a few sentences about the place of the form requirement in particular, and formal requirements in general, in the field of contract law.
In a number of contexts in the framework of the preliminary proceeding, the proponents of the thesis that a binding settlement agreement was entered into between the parties sought to reduce the significance of the absence of a signature, while referring to its absence as a "formal" matter (as they say: "Nothing but that; see, for example, "Adv. Weinroth added that he accompanied the negotiations in an unmediated manner from beginning to end, and that theThe Patriarchate and the Patriarchate have absolutely committed themselves to the agreements enshrined in the Settlement Documents, which amount to a final and binding contract, and that the signature is intended for formal purposes only" (paragraph 57 of the trial judgment; See similarly in paragraph 58 of the judgment)).