Civil Appeal 1463/22 The Greek Orthodox Patriarchate of Jerusalem v. Himanuta Ltd. - part 47

The case before us clearly illustrates the dangers of which I have warned in these words.  In our case, the parties, who are businessmen who were well represented, expressly expressed their intention not to engage in a binding manner within the framework of the particular; The formal condition they determined, according to which without a "full signature" the drafts would not be valid, was not met; Even the requirement of writing by virtue of Section 8 30Real Estate Law, which took place in the circumstances of the case - was not filled.  In addition, the Patriarch has made it clear that he does not consider himself competent to bind the Patriarchate to the engagement at this stage, when this was known to both parties.  In my opinion, these many "formal" elements are sufficient to show that the detail cannot constitute a binding settlement agreement, and therefore justify the dismissal of the claim, without the need to require a substantive examination of the intention of the parties at all.  Indeed, in my view, even a substantive examination of the element of finality leads to the same conclusion.  However, the advantage of the "formal" requirements lies in the tools they provide to the parties to regulate their contractual relations as they wish, in a manner that will be clear to them and to the courts.  As mentioned, these tools are especially effective and useful when it comes to conduct between well-represented businessmen, such as the case in question.  Indeed, only ignoring the "formal" analysis, while focusing on the element of finality alone, is liable to lead to disagreements in a case of this type.  These disagreements imply uncertainty, which invites unnecessary litigation.  Indeed, the pendulum in our case law in the field of contract law moves excessively in the direction of the substantive pole.  We would do well to shift the direction of its movement, and return to Israeli contract law, all the more so when it comes to the business contract, a certain degree of formalism, which will moderate the uncertainty and contribute to the efficient and informed use of the contractual instrument.