In the first case, the requirement of the law is substantive. And if a document is not made, the parties have done nothing and nothing. In the second case, an oral obligation may arise, and the question will be only whether it can be proved as other means of evidence, in respect of the defendant's confession, or the first written evidence together with witnesses.
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I think there can be no doubt that the written requirement comes because of the importance of the transaction, and therefore it is a condition for the fulfillment of the obligation" (ibid., v. 8).
- At the basis of this "deterrence" purpose, which leads to the classification of the written requirement as essential, lies the view that "human experience teaches that written words express more seriousness than oral words. The written requirement guarantees the caller against the frivolity and recklessness that may involve oral promises. The writing creates a presumption of will and consent to a legal obligation."Friedman & Cohen, at p. 466; See and compare: Civil Appeal 811/23 Ben Haim v. Tishrei Furniture Ltd., verse 20 [Nevo] (17.3.2025)).
In this regard, it should be emphasized that in light of section 6 of the Real Estate Law, according to which "a real estate transaction is the acquisition of ownership or other right in the land according to the will of the grantor, except for inheritance by will", we agreed that the written requirement relates to the undertaking of the owner of the right in the land to grant it to another, as opposed to the buyer's undertaking to purchase the right (see, for example: Civil Appeal 158/77 Rabinai v. Man Shaked Company in Tax Appeal (in liquidation), Verse 9 [Nevo] (April 8, 1979); Al-Nashshibi, para. 10).
- Admittedly, one can find in the case law an echo of the approach according to which regarding the written requirement, "The document does not have to embody the undertaking itself, but it is sufficient that it clearly attests to its existence." (עניין Alnashashibi, paragraph 9 of the judge's judgment Bach). However, it should be emphasized that even in cases where the case law was correct to recognize the validity of a document, which does not include the very undertaking of the owner of the right in the land to grant it to another, it was essentially documents written by the owner of the right himself, in which he clearly testified to the existence of a transaction in the land, in a manner that in any case attests to his commitment to carry it out (thus, in the case of Alnashashibi, this was a power of attorney signed by the seller, in which she explicitly stated that she had sold her rights to the buyer, and that she wished to give effect to the aforementioned sale; OnCivil Appeal 235/75 Kadri v. Order of the Sisters of St. Charles, IsrSC 30(1) 800 (1976), this was a receipt issued by the seller, in which it approved the payment of a sum received from the purchaser for the sale of real estate whose details were specified in the receipt, and the price of the transaction was also specified; Also See: Gabriela Shalev and Effi Zemach Contract Law 266-267 (4th ed., 2019) (hereinafter: Peaceful and Plant)).
- To summarize what has been said so far; The Fixed Written Requirement In the section 8 Law The Real Estate It is substantive-constitutional, so that its fulfillment is a condition for the validity of an undertaking to make a real estate transaction. This derives from the purpose of this requirement, to ensure that the owner of a right in the land will not be obligated to grant it to another, but only with the seriousness that characterizes the work of writing. As a rule, the written requirement relates to the very obligation of the owner of the right. Admittedly, in the context under discussion, the case law recognized the validity of documents that did not explicitly embody the undertaking itself, but these were documents written by the owner of the right himself, in which he clearly testified to the existence of the transaction, in a manner that in any case testifies to his commitment to carry it out.
- I am of the opinion that the application of these rulings to our case leads, as stated, to the conclusion that the detail does not meet the written requirement. Thus, In the absence of a written undertaking, there is no fulfillment of the details. I will clarify things.
- The detail does not contain all Written undertaking of the Patriarchate to make a transaction in real estate, since the particulars are not a document written by an entity on behalf of the Patriarchate, and was not even signed by such a party. A detail is - by definition - a document that documents things that have been said Oral at the meeting in question, and signed by three parties who do not belong to the patriarchy (Adv. Yaakov Weinroth, retired Justice Avigdor Mashali and retired Justice Dan Arbel); These factors are intended to be used but are witnesses to what was said Oral in the meeting, and the purpose of their signature on the detail is to verify its contents.
- Thus, in practice, granting binding legal validity to the individual means enforcing an undertaking that was given Oral or in the conduct of the patriarchate in making a real estate transaction; This also arises explicitly from the District Court's rulings, according to which, inter alia, "the core and essence of the matter lies in the representation made by the Patriarch to the entire world - the representatives of the plaintiff [Himanuta - 16] and the judges who were called to serve as witnesses toThe parties' oral consent and conduct" (para. 146 of his judgment); and that the fact that the Patriarch "did not understand the legal significance of the Oral Commitment in the legal system in Israel" (p. 138, emphasis added; I will note that my colleague, the President, Associate, emphasizes that "the patriarch's implicit claim that he did not understand the legal significance of Oral Commitment In Israeli law, it does not have the power to negate finality and nullify the validity of the contract" (para. 29 of his opinion, emphasis added)). The District Court further emphasized in this regard that "Judge Arbel testified that according to his understanding and as he perceived it, this is a festive occasion whose purpose Orally anchor the parties' agreements and undertakings to act according to the details" (para. 144 of his judgment; emphases added).
- There is therefore no escaping the conclusion that the particulars are, at most, Vision that the Patriarchate has committed Oral or in the conduct of making a real estate transaction; The detail does not include a written undertaking by the Patriarchate to make such a transaction, nor even a document in which the Patriarchate itself testified to the existence of a transaction.
However, as explained above, the written requirement is not based on evidentiary reasons, but rather is a constitutional requirement intended to ensure that an undertaking to grant a right in the land is done seriously, and not out of haste or frivolity, taking into account the characteristics of the work of writing, as opposed to an oral undertaking. This purpose does not exist in detail, and in any case it does not fulfill the requirement of the writing.
- I will note that the above is reinforced, given that the idea of creating the individual was born precisely because of the fact that the Patriarchate was not interested in committing Written Make such a transaction.
Thus, in the District Court's ruling, it was held that "the Patriarchate presented to the plaintiff [Himanuta - Y.V.], in real time, a representation of legal impediments in signing the agreement and arguing that the Patriarch does not have the authority to engage with it until the State of Israel recognizes his status as the representative and head of the Patriarchate" (para. 141 of the judgment; emphasis added); and that following this representation, the JNF and Himanuta sought "in a creative way to bring about the signing of the agreement in a way that bypasses obstacles", In a manner that led to "the idea, the exception, to convene a festive ceremony in order to express the determination [of the parties] to commit themselves to the agreement and to perfect it through the signature of two retired judges, who will witness the binding of the parties in the settlement agreement even without its signature" (ibid., para. 142). In this context, the District Court accepted the testimony of Adv. Hanani, who represented Himanuta at the meeting and even read out the details to those present: "In the end, it was agreed, according to Adv. Weinroth's proposal, to hold a festive meeting to summarize everything, to read aloud, to summon two witnesses [...] to give it a festive and unusual touch [...] The ceremonial nature will give expression to the binding, concluding and finalized nature of the matter. The judges signed as witnesses" (ibid.).