Thus, the idea proposed by Adv. Weinroth - to hold a festive ceremony, to read the detail and to have witnesses sign it - is the result of the unwillingness on the part of the Patriarchate to undertake in writing to make a real estate transaction with the JNF; the said idea is intended to "circumvent" this unwillingness on the part of the Patriarchate, by means of an impressive ceremony and documentation of the words that were said orally. However, as explained above, the written requirement in question is substantive, so that "in the absence of a document, there is no fulfillment of the transaction" (Grossman, ibid.); It is therefore difficult to accept in our case the attempt to deliberately circumvent this requirement by means of a ceremony, no matter how festive it may be (and it should be emphasized that our case is substantially different from the case at hand in the Butkovsky case). There, the fact that the parties "watered glasses and shook hands" served as one of the considerations for recognizing the existence of a final decision on the part of the seller to make a real estate transaction, despite the absence of a signature on her behalf to the agreement written by her; On the other hand, the aforementioned ceremonial fact was not used there to circumvent the written requirement).
- In light of all of the above, the particulars do not meet the written requirement; In any case, it does not serve as a basis for enforcing an undertaking on the part of the Patriarchate to enter into a real estate transaction with the JNF.
- Admittedly, The case law recognized that in "special and exceptional" cases, in which compliance with the written requirement raises a "cry of fairness", a real estate transaction may be validated even without fulfilling this requirement, by virtue of the principle of good faith (Civil Appeal 986/93 Kalmar v. Guy, IsrSC 50(1) 185 (1996)). However, as I have already noted in one of the cases, "in light of the explicit instruction of the Section 8 Law The Real Estate, The existence of such a 'cry of fairness' should not be recognized except in the rarest cases, in which there is a very significant reliance on oral consent; and the party that disavows it acts in extreme bad faith; So the principles of fairness and justice 'cry out' that it is impossible to accept the result of renunciation of the deal."In Tax Appeal 1270/23 Anonymous vs. Anonymous, verse 27 [Nevo] (September 6, 2023)). Indeed, this Court did not recognize the existence of such a "cry of fairness" except in a few cases, in which there is an extreme lack of good faith on the part of the party who renounces the transaction, along with a very significant reliance on the other party (ibid., para. 28; for more on the circumstances of those cases, see ibid.).
In our case, as stated above and as will be explained below, I do not believe that the withdrawal of the Patriarchate from the negotiations amounts to bad faith within the meaning of section 12 of the Contracts Law; in any event, the circumstances of the case before us do not come close to those rare cases that raise a "cry of fairness".
- To conclude this part, and more than necessary, I will note that despite the analytical difference between the requirements of form and the element of determination, there is a difference that my colleague, the judge, insists on Grosskopf (paragraph 64 of his opinion) - there is a connection in principle between the written requirement and the requirement of finality, which is necessary for the perfection of a contract. As explained above, the written requirement is intended to ensure that an undertaking to make a real estate transaction is given out of seriousness, so that in a certain sense, "it itself ensures the seriousness of the contractor and his discretion" (Peaceful and Plant, at p. 266). In our case, the Patriarchate insisted, as aforesaid, not to undertake in writing to enter into a real estate transaction with the JNF, due to its position that the Patriarch is not entitled to enter into such a transaction before the State of Israel has officially recognized it; As stated above, the Patriarchate explicitly reflected this position to the JNF and Adv. Weinroth, in a way that led to the birth of the idea of creating the detail and reading it in a festive ceremony. In these circumstances, I am of the opinion that a determination that at the time of the said ceremony the Patriarchate concluded its intention to engage with the JNF in the transaction in question (subject to the receipt of a "letter of recognition" by the Patriarch and the approval of the Holy Synod for the transaction), is not without difficulties.
The Patriarchate's Withdrawal from Negotiations and the Duty of Good Faith
- As stated above, I am of the opinion that the withdrawal of the Patriarchate from the negotiations to conclude a compromise agreement does not amount to bad faith in its meaning In the section 12 Law The Contracts; All the more so - a lack of good faith that justifies a "subsistence compensation" ruling.
- Essentially, the question of whether a party's withdrawal from negotiations prior to the conclusion of a contract amounts to a breach of the duty of good faith on its part, is decided in accordance with the totality of the circumstances of the case, with an emphasis on the reason for the withdrawal and the stage reached by the negotiations (see, for example: Civil Appeal 8143/14 Halfon v. Discount Mortgage Bank Ltd., verses 10-14 [Nevo] (29.1.2017); Peaceful and Plant, at p. 119).
- In our case, it should be noted at the outset that in practice, the District Court's determination that the Patriarchate acted in bad faith when it withdrew from the negotiations, is based on the assumption that once the Patriarch is given an official "letter of recognition" and assumes that the Holy Synod for the Settlement Agreement is approved, the Private obligated the Patriarchate to sign the Settlement Agreement (see, for example, paragraphs 147 and 162 of its judgment). However, as explained above, the particulars cannot serve as a basis for obligating the Patriarchate to enter into a settlement agreement - which is a real estate transaction - since the particulars do not meet the written requirement.
- Moreover, the Patriarchate did indeed withdraw from the negotiations at a relatively advanced stage, in a manner that was credited to its duty. However, it appears that in our case, the claim of the Patriarchate, according to which its withdrawal from the negotiations stemmed from practical considerations, relating to the withdrawal of the the entity it relied on to finance the settlement agreement; As my colleague points out, the judge Grosskopf, this argument was not rejected by the District Court. Admittedly, the District Court held that the Patriarchate is not permitted to be built in the context at hand from the aforesaid argument, since "the financing of the settlement payment by a third party was not made a condition for entering into the settlement agreement" (para. 167 of its judgment). However, it seems that this determination of the District Court is also based on the assumption that the Patriarchate was obligated to enter into the settlement agreement, in view of the particular; As explained above, there is no room for such an assumption.
- In addition, I am of the opinion that a comprehensive review of the circumstances of our case also makes it difficult to award compensation due to the lack of good faith on the part of the Patriarchate due to its withdrawal from the negotiations.
The obligation to act in good faith in such negotiations is fixed In the section 12 Law The Contracts, which further states that the breach of this duty entitles the other party to "compensation for the damage caused to it as a result of the negotiations [...]". As is well known, this section is intended to compensate, in essence, for the harm to the reliance interest ("negative damages"; see, for example: Civil Appeal 2720/08 Jean N. Liebmann, verse 26 [Nevo] (23.8.2012); Peaceful and Plant, at p. 127). At the same time, the case law recognized the possibility of awarding damages by virtue of this section for a violation of the expectation interest ("subsistence compensation" or "positive compensation"), but only in exceptional cases (Civil Appeal 6370/00 Easy Building on Appeal Taxes v. A.R.M. Ra'anana Construction & Rental Ltd., paragraph 18 of the President's judgment A. Barak [Nevo] (17.2.2002)).