A person purchased a specific plot within a parcel that was held in joint ownership (Musha), without a partition process having been conducted therein. As the seller was not entitled to sell a specific portion of the parcel, it was impossible to enforce the agreement literally and record the particular plot in the purchaser's name.
The Court ordered the enforcement of the agreement by approximation, whereby instead of the specific plot, rights in the joint parcel would be recorded in the purchaser's name in a scope identical to that which he purchased. When a contract cannot be performed exactly as written, the Court has the authority to order its performance by approximation (Cy Pres) in a manner that fulfills its primary purpose. Granting a real estate purchaser rights in undivided shares instead of in a specific part can constitute performance by approximation. Here, the conversion of the proprietary right from a particular plot to rights in undivided shares does not constitute the creation of a "new contract" or a material deviation from the parties' intent, but rather a necessary intermediate step toward a future partition of shared ownership. Therefore, the purchaser's rights are to be registered as part of the joint ownership.