[...]
Retroactive approval may also be in the absence of action, provided that the failure to do the act indicates the sender's intention to legitimize the action retroactively. The answer to the question of when the sender's inaction will indicate his intention to give retroactive approval will be given after the court examines 'whether, according to ordinary life experience, a reasonable person acting in good faith would expect the sender, who is also acting in good faith, to take an action if he does not approve retroactively'
[...]
Another possibility is that the sender's silence will be interpreted as granting permission in the first place to perform the action. This is where the silence or omission persists for so long that the reasonable interpretation that the sender's behavior and silence should be given is the granting of permission to the sender to perform the action on his behalf in the first place [...] The element of duration is a factor in deciding between the possibility of retroactive approval and the possibility of authorization in the first place. The assumption is that the longer the silence or omission lasts over a period of time, the more time passes that allows the sender to clarify the circumstances of the silence. And if these have not been clarified, then this should indicate that the sender granted permission to carry out the action in the first place." (emphases added).
- Other Municipality Applications 1808/11 Ohana v. Brimmett, para. 46 of the judgment of the Honorable Justice Zilbertal (Nevo, January 20, 2015) (hereinafter: "the Ohana case"), it was noted that:
"The case law found that the division of risks between the sender, the shipper and the third party depends on the responsibility of each of them for creating the 'legal accident'. In other words, when a sender makes a representation to a third party as if he is authorizing his sender to perform a legal action on his behalf, but in fact there is no such authorization, the sender will also be forced to bear this risk, and the third party will be entitled to view the action as valid against the sender as well.