According to the approach of the Honorable Justice Grosskopf: "In a private contract, the fulfillment of the will of the parties at the time of the conclusion is the purpose for which it is appropriate to grant the status of primacy, since these are rational parties who are on an equal footing, but their ability to use contractual language is limited due to their partial familiarity with the secrets of contractual interpretation law; In the consumer contract, respect for the values of the system is the central purpose, due to the existing inequality between the parties, which raises concerns about the abuse of the rules of contractual interpretation by the strong party (the dealer) against the weaker party (the private person); In the business contract, the main aspiration of the laws of interpretation should be to improve the contractual engagement, taking into account that the contractors are not only rational parties who are on an equal footing, but are also sophisticated enough to make use of the legal rules for the purpose of designing the contract as they wish."
Justice Grosskopf further added in the Bibi Roads case regarding the distinction between the interpretation of a private contract and the interpretation of a business contract that:
"When we are dealing with an engagement in which the parties do not have control over the secrets of legal wording (a private contract), the benefit that arises from an interpretation attached to the language of the contract is not great (since in any case they are not experts in drafting legal documents), and on the other hand, the cost is high (since the parties are often expected to make mistakes in their use of language for the purpose of conveying the message to the authorized interpreter). ... On the other hand, when we are dealing with a business contract, such as the one we are discussing, granting a decisive status to the language of the contract helps to create stability and contractual certainty, since it allows sophisticated and legally well-represented parties to shape their contractual engagement as they wish, using the language of the agreement wisely and carefully. This is where my friends' paths and paths intersect. According to both their approach and mine, the agreement we are dealing with should be read closely in its language, based on the arrangements that the parties chose to set in it, and refraining from reading into it arrangements that they did not choose to set in it..."
- From the general to the individual – the application of the indications as determined in the case law requires first of all a determination as to the nature of the contract before us. As for this, on the face of it, we are dealing with a business contract – since it is a contract that was drawn up by businessmen. In addition, there is no dispute that the basis for the agreement was a finder agreement that was drawn up by lawyers. However, in practice, the continuation of the contractual process, changes in the agreements and their wording were made by the parties without the assistance of legal assistance. Moreover, there is no dispute that the section that is the subject of the discussion was drafted by Peleg, not only is he not a jurist, but he is not fluent in the English language, in a way that is clearly likely to lead to linguistic errors, which have implications for the manner of wording and should be expressed in the meaning given to the text. In this last context, I will note that Peleg confirmed in his cross-examination that English was not his mother tongue, and moreover, he referred to writing in English in e-mails sent by him as: "broken English" (see his testimony on page 155, line 8 and lines 13-14). In these circumstances, I am of the opinion that in the present case, although it is a business agreement, it is more similar in essence to a private contract, and in accordance with this, consideration must also be given to the language of the agreement, but also to the circumstances of its signing, and in particular to the manner in which Peleg himself (who drafted the clause) interpreted the relevant clause in real time.
- I will begin with the language of the section. The section states:
"The company shall also give the Finder options in the actual investment valuation for a period of 12 months. The amount of options shall be equivalent to investing all Finder's Fee back in the company"