Civil Case (Be’er Sheva) 23052-01-25 Ella Padwa v. Daniel Moshe Kirschenbaum - part 44

Moreover.  Other Municipality Applications 10859/07 Chevra Kadisha Gehsha by the Chief Rabbinate and the Religious Council of Tel Aviv-Jaffa and District (R.A.) v. David Levy [Nevo] (January 22,2012) (hereinafter: "the Chevra Kadisha case"), the Honorable Justice A. Grunis expressed his position, according to which "...  There is a certain difficulty in completing a deficiency in the contract relating to the payment date by means of the default clauses described above...  This is because the completion of the contract is carried out by the use of relatively vague standards, such as a reasonable time in this case...  This, in contrast to the provisions of the law that establish default rules that impose a relatively clear burden on one of the parties to the contract....  Filling in a deficiency in the contract by means of "default" clauses that make use of a vague standard (whether in the framework of completing details for the purpose of requiring specificity in the conclusion, or in the framework of the interpretation of the contract) raises a number of difficulties, in my opinion.  First, completing the contract by means of a vague standard such as "reasonable time" invites a dispute between the parties as to its interpretation.  Even if it is determined that a contract was entered into between the parties according to which the consideration will be paid after a reasonable time, there may be a dispute as to the interpretation of this concept.  In contrast, when the deficiency in the contract is completed by a provision of law that imposes a relatively clear burden on one of the parties to the contract, the chances of a future dispute are smaller.  Beyond that, there may be cases in which there is not enough evidence to be brought before the court in order to interpret what is a reasonable time in the circumstances of the case.  In such a case, additional proceedings may be necessary in order to complete the contract in full.  Second, taking a lenient approach with respect to the requirement of specificity and completing clauses in the contract by means of vague standards may cause uncertainty among those who enter into the contract.  This is both with regard to the question of whether a binding contract was entered into between them, and with respect to the terms of that contract (Friedman and Cohen, at p. 65)...  In a transaction for the sale of real estate, there is a difficulty in determining what is a reasonable time for the payment of the obligation after the conclusion.  This is because in most cases it is customary to pay the consideration at their rates.  This is also the case in transactions for the sale of real estate, where the sale also includes a building that must be built in the future (Friedman and Cohen, at pp.  286-287; see also Civil Appeal 608/83 Sternfeld v. Estate of the late Stroxer Morris, IsrSC 41(3) 361,366-367 (1987); Civil Appeal 579/83 Sonnenstein v. Gabso Brothers Ltd., Building Contractors, IsrSC 42(2) 278,284-285 (1988)).  In this regard, the words of Justice M. Beisky in Other Municipality Applications 825/79 Sharbat Brothers Building Company Ltd.  v. Schwarzbord, IsrSC 36(4) 197,212 (1982) are appropriate: "This [the date of payment - A.G.) is not an element, for our purposes we can refer to section 41 of the Contracts (General Part) Law.  First, because the memorandum implies a different intention, namely "an arrangement between us" and not a normative complement by means of supplementary provisions of the law; and perhaps mainly because of the lack of any possibility of determining what is a reasonable time for the fulfillment of such an obligation in a real estate transaction, in which there are no customary customs, and everything, really, depends on the mutual agreement of the contractors...  and this is not a matter of superstition, about which it can be assumed that the parties did not care what was determined, so that the court would determine it for them"...  (paragraphs 15-16 of the judgment) (emphases are not in the original).