In light of these statements, it must be said clearly: the dimension of form is of considerable importance in the fabric of the norms that regulate contractual engagements in our legal system. Beyond respecting the legislative provisions on the matter, and as mentioned above, formal ("formal") requirements were created to a large extent as an instrument for realizing the purposes of contract law, first and foremost the realization of the will of the parties at the time of concluding the contract. We must therefore be careful not to recklessly skip over formal demands, while completely eliminating them in the face of "essential" or "moral" components of one kind or another. Separating the two from the other is not as easy as one might think, and relinquishing formal aspects may entail, as in the present case, damage even to the purpose and substance. In this sense, although sometimes "Truth and Stability - Truth is Better", in many cases, the two are intertwined. Therefore, ignoring the formal requirements, which are intended to ensure certainty and efficiency, may even undermine the aspiration to achieve that elusive "truth" (see and compare: Civil Appeal 579/83 Sonnenstein v. GabsoIsrSC 42(2) 278, 289 (1988); See paragraph 62 above).
Moreover, the importance of formal requirements in contract law is particularly high when, as in our case, we are dealing with a business contract, i.e., an engagement in which all parties are engaged - sophisticated parties who carry out their contractual engagements (or are supposed to perform them) with ongoing legal support. This is because in relation to these parties there is a presumption that they knew how to use the formal legal language correctly, and that they would be able to convey their intentions to each other, and to the authorized legal interpreter (for more on the influence of the type of contractor on the way contracts should be interpreted, in general, and the way in which the laws of contract interpretation should be applied in relation to business contracts, in particular, see: Civil Appeal 7649/18 Bibi Dirt Roads and Development on Appeal Taxes v. Israel Railways Ltd., paragraphs 2-4 of my opinion [Nevo] 0.11.2019); Ofer Grosskopf and Yifat Naftali Ben Zion "Purposes of Contract Interpretation Law: Which path should we take when it matters to us where we will get?" The Book of Gabriela Shalev - Studies in the Theory of Contracts 523 (Yehuda Adar, Aharon Barak and Effi Zemach eds., 2021)).
- Here is the place to mention things that I recently had the opportunity to write in the framework of another affair, which also dealt with the legal status of an interim document:
The truth must be told, if only as a warning note for the future - the pendulum between the formal pole and the substantive pole swings in this matter in our case law in an excessive manner in the direction of the substantive pole. It is very possible that in the future there will be room to significantly reduce the swing of the pendulum, especially with regard to real estate transactions, and to establish stricter rules for recognizing the binding validity of an interim document. Thus, both in order to give the parties to the negotiations more certainty with respect to the point in time at which the threshold of engagement was crossed; They are in order to provide the contractors with proper legal protection against problems that may arise in a transaction that is financially weighty and legally complex. Indeed, there have been calls on this matter, and I will suffice with a reference to Prof. Menachem Mautner's important article "Only the Professional Contract, and not the Memorandum of Understanding, Should Create Rights and Obligations in Real Estate Transactions" (Gabriela Shalev - Studies in Contract Theory 303 (edited by Yehuda Adar, Aharon Barak and Effi Zemach, 2021) (Ajami case, at paragraph 25).