Ofer Grosskopf
Judge
Judge Yael Willner:
- In the controversy that arose between my friends, the President Y. Amit And the Judge A. Grosskopf, I agree with the result reached by my colleague, the judge Grosskopf.
- The core of the dispute between my colleagues lies in the question that is at the center of the proceeding before us - whether the minutes of the meeting that took place on March 12, 2007 between the appellant Other Municipality Requests 1463/22 (Hereinafter: The Patriarchate) and the Appellant Other Municipality Requests 1467/22 (Hereinafter: Himanuta) and Respondent 25 in the aforementioned appeals (hereinafter: KKL-JNF), is a binding contract between the parties (hereinafter: DetailsAll). Like my friend, the judge Grosskopf, I am of the opinion that this question should be answered in the negative, since the detail does not meet the fixed written requirement In the section 8 Law The Real Estate, 5729-1969 (hereinafter also: Writing Requirement). Also, In my opinion, too, the withdrawal of the Patriarchate from the negotiations in our case does not amount to bad faith, as it means In the section 12 Law The Contracts (General Part), 5733-1973 (Hereinafter: The Contracts Law).
Below, I will briefly clarify my position on these issues.
The Detail and the Requirement of the Writer
- As detailed in the opinion of my colleagues, the Detail documents an undertaking by the parties to enter into one of two versions of a settlement agreement - which were attached as appendices to the Detail and are referred to as "Draft A" and "Draft B" (hereinafter together): The two drafts) - when this undertaking is subject to the fulfillment of a number of conditions specified in the details. As my colleague, the judge, shows Grosskopf, the two drafts actually include an arrangement of a real estate transaction, in which the private history will lease to the JNF and trust the land in question for a sum of money (paragraph 74 of his opinion).
- If so, the detail documents an undertaking by the Patriarchate to make a real estate transaction; And as we know, In the section 8 Law The Real Estate It was held that "an undertaking to make a real estate transaction requires a written document". Therefore, in order to enforce the said undertaking of the Patriarchate on the basis of the particular, it must comply with the written requirement. As stated above, I am of the opinion that the detail does not meet this requirement.
- As is well known, the written requirement In the section 8 Law The Real Estate It was interpreted in case law as a substantive ("constitutional") requirement, which means that "without a document, there is no fulfillment of the transaction" (Civil Appeal 726/71 Grossman and KBK Registered Partnership vs. Executors of the Estate of Yehoshua Biderman, verse 1 [Nevo] (28.11.1972) (hereinafter: the matter Grossman); See, for example: Civil Appeal Civil Appeal 380/88 Toukan v. Alnashashibi, Verse 9 [Nevo] (17.10.1991) (hereinafter: Matter Alnashashibi); Civil Appeal 692/86 Yaakov Butkovsky & Co. - Import & Marketing Company inTax Appeal v. Gat, verse 10 [Nevo] (10.12.1989) (hereinafter: the case Botkowski); Daniel Friedman and Nili Cohen Contracts Volume 1 479 (2nd ed., 2018) (Hereinafter: Friedman & Cohen)). This interpretation of the written requirement was determined in accordance with its purpose - to ensure that the undertaking of a holder of a right in real estate to grant it after another is done seriously, taking into account the importance of real estate transactions and that "an undertaking to make a transaction in real estate is a serious undertaking" (Matter Grossman, verse 9; See, for example: Matter Alnashashibi, verse 9; Civil Appeal 649/73 Kapolsky v. Ganei Golan Ltd., IsrSC 28(2) 291, 294 (1974) (hereinafter: the Kapolsky)); As explained in the matter Grossman:
"THERE ARE TIMES WHEN LEGISLATION REQUIRES THE MAKING OF A WRITTEN DOCUMENT IN ORDER TO DETER A PERSON FROM UNDERTAKING IN HASTE AND FRIVOLITY, BECAUSE OF THE IMPORTANCE OF THE TRANSACTION (AD SOLEMNITATEM). The written requirement may impress the obligee with the seriousness of his action, and protect him from haste. SOMETIMES THE WRITING IS NEEDED FOR EVIDENCE ONLY (AD PROBATIONEM), SO AS NOT TO EXPOSE A PERSON TO THE WEAKNESS OF THE MEMORY OF THE WITNESSES AND TO THE DANGER OF FALSE TESTIMONY.