מסוימות וגמירת דעת - הילכו שתיים בנפרד?

Translated title of the contribution: Determination (Gimrat-Da'at) and definiteness (Mesuyamut) - independent requirements?

Research output: Contribution to journalArticlepeer-review

Abstract

Every Israeli lawyer (and law student) knows that under Israeli law an agreement is legally enforceable only if it complies with two cumulative requirements: First, the agreement must be definite, i.e., sufficiently detailed (the mesuyamut requirement);second, it has to reflect the parties’ gmirat da’at (literally:”[de] termination of mind”). Since 1973, when these prerequisites were first incorporated in the Israeli Contract Law, it has become almost an axiom that,notwithstanding some interrelations between them, these are two independent requirements. This article argues that, contrary to this conventional assumption, the two requirements are theoretically inseparable. More conspicuously, it is argued that in Hebrew the term Gmirat Da’at contains, at its very core, an element requiring that a person’s mind be not only determined (i.e., strong and decisive) but sufficiently concrete (i.e., detailed). This creates an inevitable semantic overlap between this particular element of the gmirat da’at requirement and the definiteness requirement (mesuyamut). Thus, as a formal legal requirement,definiteness (mesuyamut) becomes superfluous – as it is already implicit inthe former requirement. A comprehensive empirical study of the case law on contract formation reveals that the actual practice of the courts clearly supports this analytical-interpretive theory. By shedding new light on the complex relationship between these two fundamental legal concepts, the Article hopes to improve our understanding of the basic elements of every contract. While doing so, it highlights the power of language and illustrates the deep (and often hidden and unexplored) links between language, culture, and law.
Translated title of the contributionDetermination (Gimrat-Da'at) and definiteness (Mesuyamut) - independent requirements?
Original languageHebrew
Pages (from-to)5-79
Number of pages75
Journalמשפטים
Volumeנ"א
Issue number1
StatePublished - 2021

IHP Publications

  • ihp
  • Contracts
  • Hebrew language -- Semantics
  • Intention
  • Judgments
  • Law -- Interpretation and construction
  • Law -- Israel
  • Law -- Language
  • Verdicts
  • דיני חוזים
  • חוזים
  • ישראל -- משפט
  • כוונה
  • לשון משפטית
  • סמנטיקה עברית
  • פסיקה (משפט)
  • פסקי דין
  • פרשנות (משפט)

Fingerprint

Dive into the research topics of 'Determination (Gimrat-Da'at) and definiteness (Mesuyamut) - independent requirements?'. Together they form a unique fingerprint.

Cite this