ADVOCATE ISRAEL

.1 Fnidr, open Construction Investment Co. Ltd.
.2 Joseph Pearls
Against
David Castro

This document was translated by computer software without human contact, so there may be significant errors in translation: please do not rely on the translation without obtaining appropriate advice with a certified Israeli advocate / lawyer

Supreme Court sitting as - civil appeals court
[14.12.83]
Before former President J. Cohen, President M. Shamgar Judges A. Barak, M. Maisky, S. Levin


Contracts Law (General Part), 1973, Book of Laws 118, Sections 12, 12 (a), 12 (b), 15, 30, 39, Chapter A - of the Sale, Tsc"h - .1968 S "H. 98, Sections 6, 18 (b) - Companies Ordinance, Ha"i Volume I, (H) 155, (a) 161, Sections 117, 234 - Civil Wrongs Ordinance [New Version], NK 266, Sections 35 , 36 - commentary Ordinance [New Version], NK 2 - Contracts Law (General Part), Ts"l 1970, Arrow 129 - Law mission, Tsc"h 1965, Book of Laws 220, Sections 1 , 8, 8 (5) .12

Mini - Ratio:
* Companies - Managers - Liability to Third Parties
* Companies - Managers - status
* Contracts - Negotiation cutting contract - a common way at the end - heart
* Contracts - compensation - compensation negative
* Commentary - Dean - Contracts Law (General Part)
* Commentary - Dean - General interpretation
* Commentary - terms - side
* Mission - sending Relations - Calendar - liability to the sender


Petitioner 2, engineer contractor, assured respondent, a resident foreign citizen of Israel, to obtain a residential apartment for his return to Israel. 2 petitioner directed the building in his contracting business with petitioner 1st - A private company, 1 petitioner and his wife were shareholders. B - 1974 signed by respondent on the petitioner 2 printed form of memory of things petitioner 1, when it appeared the respondent clerk as a buyer. According to this memory petitioner undertook to sell respondent Apartment 1, the respondent paid all payments charged in the memory of things and 1 transaction payable to the petitioner failed because the plot was not at all belong to the petitioners, and they found that respondent. 1 petitioner entered dissolution proceedings, during which approved a settlement, which creditors will receive non-insured claims to remove 15% of their claims amount only. Respondent's claim that the arrangement does not apply to his claim, accepted the district court, respondent stopped the Sabbath with money compensation for the damages. Charge imposed on petitioners jointly and severally. Petitioners' appeal was rejected - by the Supreme Court, where determined, inter alia, that the 2nd petitioner owed respondent compensation under section 12 of the Law of Contracts (General Part), 1973, even - though he was not party to the contract finally held between the petitioner and respondent .1 on this point has concerned for further discussion.

The Supreme Court ruled: N.
A.. (1) the beginning of each review is to resort to interpretive Lnoshm of things, since, laws should be interpreted - if possible - their bodies.

(2) Place tongue law creates a number of interpretive options, dogmatic arguments are not decisive, should give weight to considerations of proper legal policy.
At. (1) must be acceptable at the end of the road - note the negotiations of a contract prior hysterectomy, permanent section 12 (a) Contracts Law (General Part), applies to any person, who takes part in the negotiations in question, whether he manages to conclude negotiations the contract under his own name or not, we were even when he is nothing but a warrior of others. There is also immaterial, if the person, who takes part in the negotiations, working alone, or if is part of a group of people, working together Cslohto negotiation of another.
(2) participation in negotiations and the status of a person as a party to a future contract is standard, the - mouth examined Applicability of Article 12 (a) Contracts Law (General Part). Hysterectomy at the end of the contract negotiations is not mandatory application of conditions created by the above paragraph .12 This duty stood independently for the management of the negotiations, even if not linked to contract or discovered flaw in the contract after hysterectomy, which takes Lbtloto or allows termination.
C. (1) two parts of Article 12 of the Law of Contracts (General Part) are intertwined and complement each other. Therefore the authority to require compensation fixed in Article 12 (a) The following non - existence of duty fixed in section 12 (a) the law will apply to all those who committed the duty to act in the usual way at the end - heart.
(2) whether negotiations matures into a contract or not, got right to compensation for those who damaged the negotiation stage because of this that the other side had not been an acceptable way at the end - heart.
(3) Section 12 (b) Contracts Law (General Part) puts the term "party" with two alternatives, which got an excuse to compensation, the term creates a link to both: In "Party" is a party to negotiations or side cutting contract.
(4) there is no contradiction between the demand compensation - according to Article 12 standard contractual compensation claim. A situation, which will be overlap between the grounds under section 12 to one of the other contractual grounds, and by the injured party the choice to which one to turn to - to get the restaurants.
D.. (1) responsibility defined in Article 12 of the Law of Contracts (General Part) has elements Kognteim. Different factual circumstances and change affect the tangible form, it must wear an acceptable way to end - a heart, and how implementation of legal standards, the circumstances in question, but the obligation itself will never die, and her condition. All holds that such obligation is not got given circumstances and that it was exempt, it must evidence.
(2) the negotiations must be faith in the fulfillment of the trust, which gives the other side. Good faith tested by the test of "objective" in the sense that interest in the form of behavior is determined by general standards, the - the basis of which conclude, what should be expected given circumstances the principal negotiations. System is always special circumstances, the basic emotional and behavior of the parties to negotiations are subjective elements.
(3) breach of duty to be an acceptable way at the end - can take heart form of default or non - disclosure of facts, when the - the circumstances could be expected that man, director of negotiations, will reveal them to the other side. Disclosure required by section 12 of the Law of Contracts (General Part) is not necessarily due to discovery
Wishes of the other side, but there are circumstances in which guarantee delivery of information initiated by information, which is essential to those in the negotiations for concluding a contract.
(4) active duty of acting especially when disclosure is clearly the owner of the information between the negotiators, there is a substantial gap between the intention of the other side and what he Bar - objections to - the legal situation the real facts.
(5) the principle of good faith is broad, and the same time to get up prevention alongside another victim cause of action based on more limited foundations. The choice between the various grounds is by his attorney at will.
(6) When a buyer negotiating with a salesman who presents himself, he may assume that the seller has the authority to give ownership of the property, and Yair eyes, if there is any reservation completely controlled the property.
The. (1) Section 12 (b) Contracts Law (General Part) applies to the manager, acting on behalf of the corporation who violated the duty of honesty and decency.
(2) negotiations between the send and third parties not directly controlled by the said law ¬ mission, Tsc"h -. 1965
(3) status of a person as an extension of another does not exempt him fulfilling the obligation arising from provisions of Article 12 (a) Contracts Law (General Part). Duty to question the mission does not result from sexual or alleged contractual relationship with the other side to negotiate, but the instruction of the law norm regarding negotiations for concluding a contract.
(4) stated in Section 12 (b) is that to "not out of the picture" with the end of his mission, that Article 12 creates no obligation to conduct only when the existence of mission but also responsibility, consequences can come to Litvin after negotiations ended, he is exempt from Therefore it only cut the meantime, a contract between the shipper or third party - the contrary - because it failed negotiations.
(5) provisions of the Law of Contracts (General Part) Law on the one hand and on the other mission should be tested in that it possible to give them having effect within a trend to resolve them.
And. (1) duty of loyalty to the mission is subject under the laws formulated by Slhok mission to qualify, can arise from the duties associated with the mission, which is unique in nature.
(2) the obligation to refrain from any action that has hit the sender's interest, she dictated restraint or refraining from action, depending on the nature of matter. But she should withdraw - light of the above Brisha Article 8 of the law mission in light of the nature - from the said duty of conduct Article 12 of the Law of Contracts (General Part), we are an acceptable way and at the end - heart, Cshbitoi "acceptable way" is in this context refers to the position of Director of Negotiations as an extension of another accepted way relationship between sender to send only the nature of negotiations with the other party accepted it published its kind in the circumstances, including the discovery of facts.
(3) closed agreement between the sender and to send about hiding certain facts in certain circumstances can reject the validity of the contract mission, in whole or in part, due to Article 30 Contracts Law (General Part).

(4) board might commit to compensation under section 12 (b) Contracts Law (General Part), as was also due to have a mission he undertakes damages against third party tort action because it did because of his mission.
(5) also may be imposed on the sender's responsibility based on the laws of the mission to which the action ( "legal" scope for the
"Hmtrielit") requires the sender, and based on the approach that the obligation to negotiate an acceptable way to end - heart is not only a duty but also to the sender's personal duty, which is conducted in the name sake of negotiations. Behavior of sending - whether it imposes personal liability on him or not - has, under suitable conditions, to violate this personal obligation of the sender, usually non-transferable.
M. (1) whether the use of certain news or documents who's next mission is due to the detriment of the sender within the meaning of this Section 8 (5) of the Law of mission, be decided by the nature of the use of user intention and by rising from the consequences of use only. On - so do not see any disclosure of facts to the other side to negotiate "abuse", but only because the sender is not satisfied with it after the fact.
(2) should be seen taking a tongue "abuse" in Article 8 (5) Law mission for reference actually aware, we were aware of circumstances which result to act.
(3) determining the general question last part of Article 8 (5) law mission that avoid anything that has a conflict of interest, beyond the plane of the acts of malice and compulsory general, presented the corresponding provision of Article 8 of the law Brisha completing it, so there was room for inclusion in Paragraph (5) precisely.
(4) teaching last part of Article 8 (5) law does not dictate behavior and mission, contrary to Section 12 of the Law of Contracts (General Part), does not allow it, but but the designer standard applied to those who undertook a mission.
(5) If by the nature of the mission and circumstances of the case is not possible to reconcile the debts and maintain the mission debts are derived, as stated in paragraph 8 (5) law mission and the criteria defined in Article 12 of the Law of Contracts (General Part), did not die due to liability the sender responsibility under section 12 above, that at the same time there is no choice about the way his hands in negotiating behavior, whose management has undertaken, he has no choice when in fact taking on the mission itself.
(6) If Danan, discovery material Okardineli deal except that the land, which turned the deal, all is not owned by the seller, not only we do not misuse "news or documents", who came over to send due to mission, but its disclosure obligation to the other side clearly implied duty of good faith imposed on the party to negotiations.
H.. (1) common view now sees Corporate Director of the organ of society not only board.
(2) vision of an organized company manager came both in the field of criminal and tort law to expand the company's obligations and to reduce the scope of the manager's responsibility for an act committed by themselves or who was involved in a typically engenders personal liability. Directorate has no pretense to be used for granting exemption from responsibility, which was applied to perform the act under normal circumstances.

(3) whenever the manager did or refrained from doing an act that has to cast blame or liability for personal compensation, remains his personal responsibility, and status of a corporation does not afford them any immunity.
(4) There is no place to create a distinction between the responsibility of the Director of tort liability and compensation for breach of statutory duty in the pre - contracts, as defined in Section 12 (b) Contracts Law (General Part).
(5) developing the modern trend is that the company and directors working for her to consider not only the best interests of shareholders but also the good of the company's employees, the consumer and the general public as a whole. Imposition of the duty of good faith on company directors, managers named company negotiated with a third party, is another expression of concepts tend to just trust and caution regarding the obligation imposed on directors also to third parties outside the company.

Rulings - Dean of the Supreme Court mentioned: and
[1] AE 338/73 smooth Company Ltd 677 block 6133 v. Cohen et al, PD Dutt (1) .365
[2] AE 148/77 S. Roth v. Bishop Construction Ltd, to PD (1) 617.
[3] AE 838/75 Spector v. French, PD Heart (1) .231
[4] AE 166/77 Dadon N. Abraham, PD to (3) .365
[5] HCJ 59/80 public transport services and Beer - Sheva, Ltd. v. National Labor Court in Jerusalem et al, PD her (1) .828
[6] AE 793/76 (um, 506/78) Lockman v. Schiff, PD to (2) .533
[7] AE 84/80, 89 As Kassem N. N. Kassem et al; Zvi Sndrob and Shaw, Ltd. v. Kassem et al, PD Les (3) .60
[8] AE Childress 725/78 British Canadian Ltd. v. Pine et al PD her (4) .253
[9] AE 494/74 Hasmonean House Company No. 97-96 Ltd. v. Aharoni et al, PD and (2) .141
[10] AE 349/74 Bonkers End Triidrs Ltd. v. bequest Abdel Rahman Mahmoud Khadr, PD Dutt (1) .827
[11] AE 323/80 salmon Ltd. v. Bank Leumi Le-Israel BM, PD Les (2) .673
[12] HCJ 376/81 Lugassy v. Minister of Communications, et al, PD him (2) .449

Rulings - English law mentioned: N.
. . 77Ch. App 2 (1866) Ferguson v. Wilson [13]

Rulings - American lawyer mentioned: in
. A. 248Itek corporation v. Chicago aerial industries, inc [14]

. (1968) 625D2

Notes: and
1 out of law interpretation, see: N. AE 680/80 bequest late late Tzvi Freeman v. Line Company Eilat-Ashkelon Pipeline Ltd. et al had PD (2) 578

.2 Section 12 of the Law of Contracts (General Part), 1973, see: In Urn '374/81
Tnuva Ltd. v. Attar et al, PD her (3) 763; AE 474/80 Gruber N. Tel Yosef Cooperative Group Ltd. are working to settle her PD (4) 45; by A. 207/79 Moshe Raviv & Co. Ltd. v. Jules House Ltd et al Appeal counter, PD Legendre (1) 533; AE 829/80 estate workers Ltd. v. S. Zfnik et al, PD Legendre (1) .579
Further discussion on the matter, ruled in the Supreme Court three (Acting President H. Cohen judges Y. Cohen, E. Burke) On 9.3.81 AE 230/80 *. The petition was rejected.

Jean Greenberg - as the petitioners;
M. Levinson - named respondent.


Stopped - Dean


President M. Shamgar: and previous legal proceedings
1. Further discussion on the ruling - Dino's house - this sentence * AE 230/80, which revolved around the question of whether compensation liability may be imposed under section 12 (b) Contracts Law (General Part). 1973, who is not a party to the contract.
2. The main factual data should It's settled in - this sentence AE 230/80 ** above these words: N
"Respondent (who is also respondent's debate - from 'h') is a foreign resident citizen of Israel, determined to acquire a residential apartment for his return to Israel. With his friends among youth appellant 2 (hereinafter in appellant), he was an engineer building contractor, who promised him to get him what he wants. appellant ran his own building contracting business through a private company, it undermines 1 (hereinafter, and the company), he and his wife were shareholders. The company dealt with the sale of apartments in buildings, it has established, and this was using the printed forms, record . on such a form signed on 8.9.74 respondent appellant away from here, When the company performed a clerk, the respondent appeared as a buyer. The company pledged to sell things respondent memory a three-room apartment on Herzl Street in Kiryat Ata, 11010 block part 106, a price of 000, 160 pounds, payments were set name

------------------

* PD her (2) .713
** Name, p. 716-.717

The expense of this price. There Holkin, Respondent paid all the payments, he should be paid, a total of 500, 133 pounds, until the deal failed. These payments were made payable to the company and the company has confirmed his acceptance.
Was filed in 1975 in Haifa District Court on a request to dismantle the company. In February 1976 the court appointed attorney Yehuda Bressler, a trustee by the court to find a solution to economic difficulties in a given society. The current claim was filed with the Haifa District Court on .17.3.76 Rosler lawyer representing the company and the appellant gave written ¬ protection on their behalf, but not found in the defense (or any) which the company will dissolution proceedings or nothing of his appointment as trustee; not to mention, not filed a request under Section 155 Companies Ordinance to delay the proceedings in this action.
On 21.6.77 the Court has given approval for an agreement to dismantle the company, under section 117 of the Ordinance in question: N in order that non-guaranteed creditors will remove 15% of their claims only amount of their claims. Custodian suggested but - force to remove respondent Tovanto 15% of the current fiscal, the company paid as stated, apparently as an admission of liability to return these funds; but came - power Respondent refused, she thought, 'This, he declares, the arrangement does not require the respondent does not apply to his claim, received the approval of the learned judge District Court. "
The District Court ruled on Saturday respondent's money and compensation amount 000, 70 pounds at the rate of difference between the price of another apartment, it would have to purchase, and the price he had agreed with the things undermines memory first. Billing amount verse are imposed on society and on The second appellant, together and separately, as charged in the second appellant's docked next taste: in
... Is motivated to do the deal without informing him that the plot belonged to the defendants while the defendant knew that the prosecutor based on his eyes closed. "
This point, dealing with the lack of any right to undermine the ground of her apartment house was built, founded on the District Court's orders section 18 (b) of the Sale, 1968, issue that we need to resort to this body.

That submitted an appeal to - this phrase.
3. Stage appeal: and House - This sentence from the then Acting President, Justice H. Cohen, noted that there is no basis Respondent contends that the arrangement held by the Section 117 provisions of Ordinance
Membership does not require it, and he also rejected claim undermine that arrangement to influence the action was on appeal: N. This action was filed to decide on the question of Hbotm undermine matter rate, this question can be decided regardless of the separate question, What is the actual payment, which had Respondent followed the arrangement will, as long as it is in the eye.
Discuss the reasons, Batein formed liability of the second appellant, turned a ¬ sentence is the question whether it was created circumstances of the appellant's personal responsibility. That it supported the respondent's claim on the fact that the appellant signed a Memorandum of Understanding without indicating that he signs the name of the company or director; not sunk the company stamp. Says Acting President about it: on *
"Ostensibly, there is no signing of the Memorandum of Understanding but personal signature of the appellant; If you want the appellant to prove, the signature of the company is trained by regulations, to the evidence. Not only that regulations are first of all the knowledge society itself knowledge of administration and its shareholders, and they can load Nablus Huchtn obligation on others. When proved undermine, the signature on the Memorandum of Understanding signing company is training that requires regulations, we have the memory of things but what our eyes see, and personal signature of the appellant only. "
According to the Acting President, the company sought to shake off charges against respondent, asserts even saw things as memory requires, on the other *: and
"The learned judge ruled, in effect that no Holkin, appellant personally. Respondent's friend and adviser, assured him get an apartment - and for having brought him promise to the memory of signing things. Was this commitment, appellant also received a garden transformation value, as was had great interest from the interest money to get rich private company under his control and welfare. if, in fact, respondent had not obtained but a piece of paper, the company is entitled to cancel Cafra Daraa whenever you want, and in fact did you cancel, the commitment does not exist at all. Respondent received the Memorandum of Understanding signed he relied on appellant's personal promise, doing so will be flat: N. If the appellant guarantee for liabilities of the Company is not, a personal commitment by the appellant must be here; and this commitment violated appellant, Failing to restrain execution memory of things. "

--------------
* PD her (2), p. .720
הצג סקריפט אנגלי
Hence the opinion of the Acting President, that the appeal should be rejected, and hence, to keep them from being charged undermine the compensation restored.
Honorable members, Justice Barak, also believed that the appeal should be rejected because the company's liability evidence properly, and even got a personal responsibility of the second appellant - but it tasted different because that was the basis of decision of Acting President: on signature the memory of things, expressed by the wording of an agreement between respondent company, means the signing of the executive as the company and is in itself to establish personal liability. also on the burden of proof, as it concerns the content of the regulations means the company's signature without seal, were respected members of his conclusions Justice Barak, different from the Acting President. I agree with all due respect to the position of distinguished members of these points, but I do not see in here the details of these things, because not necessary for further discussion, whose set presented in Section 1 above.
Body controversy, it revolved around an appeal, the judge believed Barak, stated that the contract was cut contract between the buyer and the company, but the manager must also damages because of two reasons: One, and, anchored instruction of Article 12 of the Law of Contracts (General Part), and another, grounded Bhoraotihm of Sections 35 and - 36 Wrongs Ordinance [New Version].
First coat: a moderator or board must act at the end - heart and accepted Bnalm contract negotiations between the company and the buyer, when the third party tends to trust that the director or the board.
Second coat: the appellant owed duty of care in providing information to the buyer, and obligation in question infringed on - hands by not told the buyer that the lot, it should be built apartment, is not owned by the Company.
Judge J. Cohen (described at the time) objected to the second conclusion of Justice Barak (were grounded conclusion tort law), but joined his conclusion regarding the responsibility of the pearls under section 12 of the Law of Contracts (General Part). The words *:
"I think that can be interpreted Hbtoi, side ', referring not only with the contract but also to people who were party to the negotiations, even if the end was not party to the contract." For further discussion at hand.
4. This discussion concerned the scope Ratione Personae Applicability of Article 12, if that decision

---------------------
* PD her (2), p. .728

Honorable President, which ordered the holding of this discussion, refers to Article 12 (b) only, not to discuss the section - subsection (b) above, but in consideration of it - once the first part of Section .12 As we shall see, means sub section (on ) is, among other things, the result of the conclusion regarding the scope of the Applicability section - (a).
A problem we go by the following sequence:
(A) The text of the provision of the law;
(B) the legal nature of the responsibilities under section 12;
(C) the laws of corporate mission;
(D) the meaning of duty of good faith.

5. The text of the provision of the law
Beginning of each review is to resort to interpretive Lnoshm of things, because laws should be interpreted - if possible - their bodies (Prof. A. Barak, "The independence of the new Civil Codification: Risk the odds" Law M (Tsl"o - L"z) 15) .
Article 12 - title end - heart stage negotiations and deals with pre - contractual, and incorporated into the provisions of Chapter Contracts Law (General Part), dealing with cutting contract. Sub-section (a) which refers to the duty to act "in good faith an acceptable way", is applied in the negotiations for a contract of hysterectomy. In light of the context of the wording and the essence of instructions sub-paragraph applies this obligation on any person who takes part in the negotiations said. Nothing in it to delimit areas narrow and limit the obligation only person who takes part in negotiations which also becomes party to the contract after cut. Therefore, by face value of what an obligation to everyone who takes part in the negotiations, whether he runs the negotiations to conclude the contract under his own name or not, we were even when he is nothing but a warrior of others. There is also immaterial, if the person, who takes part in the negotiations, working alone, or if is part of a group of people, working together Cslohto negotiation of another. Participation in the negotiations and the status of a person as a party to a future contract is therefore the criterion, the - mouth examined Applicability of sub-paragraph (a) light formula. Hence the "human" sub-section (a) means - any person who manages such negotiations there. Furthermore, no study of the text, that hysterectomy end of contract negotiations is a condition for application of the duty created under the said section 12; negotiations which speaks Section 12 (a) While watching before concluding the contract, but must be an acceptable way to end -- Lev up independently by the management of the negotiations, whether or not mature into
Contract or if the contract after hysterectomy revealed a flaw, which brings Lbtloto or allows termination. Development, followed negotiations, is a condition with a back projection, and duty created in section stands on its feet set norm for the negotiation phase as such, which will be late development (Prof. G. Shalev, "concluding a contract" means the laws of contracts ( Institute for Legislative Research and Comparative Law Prof. Harry Sacher, G. Tedesco Editor, Tsl"h) 90 .77 or higher).
Section - subsection (b), this discussion focuses on particular, determines the right to compensation for --
"Third way not acceptable and would end - heart".
Have to examine the nature of this provision in light of its status and its place in the matter within Article 12, which originally created the duty was brought above description, we would put it as a continuation of the above matters in mind (a). The latter defined the duty established pursuant to determine the scope of application of anyone who takes part in negotiations, formal party status will be a contract which will be, and if not cut down a contract as a result of the negotiations. Application of the sanction, an expression can impose a charge for compensation, should receive provision that defines the applicability of the obligation, Infringement entitles the injured party damages; that emerges from the continuum relation Hnisohiim and logical connection between two parts of Article 12, those involved have seen each other complement each other . Do not see any particular reason and justification to the adoption of the interpretation, let seal distinction between types of people who conducted negotiations did not end - note: According to the thesis that rejects the interpretation of the charge above, Msncrt contract, established grounds for compensation for what happened at the negotiations, and not to cut interest confined contract negotiations only, not established the cause of so-called compensation for what happened in the negotiations.
Such interpretation, creating distinctions between different Migzrim of people they apply Section 12 (a), is unacceptable to me. When the legislature has the authority to set charge compensation following non - existence of duty created sub-section (a), was that anyway, that this authority will apply to all those who committed the duty to act in the usual way at the end - heart. There is no reason to discover, is because interpreted the words as part of a domain Hmakr Application of sub-paragraph (a), namely in determining billing option compensation only for one type of those they apply to sub-section shall (a) fired others with nothing, regardless of the duty imposed on them under section matter (a) damage it caused.
Wording of sub-paragraph (b) contains two linguistic expressions, that deserve further attention, guidance, on the one hand, addressed the subject of negotiations as a pretext for an independent compensation ruling, on the other, use the word "party". What things are supposed to, the possibility of compensation, opening to the victim, by the said here, referring to the damage, caused by negotiations, or damage,
Caused by amputation of the contract. Earwig of the two alternatives are described on the basis of an independent and separate is essentially the nucleus of sub clause (b), and which made it clear that the obligation to act on the result set in right to compensation relate to the negotiations phase and are cascading issues discussed in Section 39 of that law. Obligation refers to any case the negotiations phase, setting the alternative formulation of the above-mentioned meaning, and that whether negotiations matures into a contract or not, got right to compensation for those who damaged the negotiation stage because of this that the other side had not been an acceptable way at the end - heart. Already stated above, there is no logic to the conclusion that those who harmed by his behavior after that - attention to the other side's interest to negotiate ¬ which according Dkoli Alma created a breach of duty by law - will be entitled to compensation only if the cut contract, and shall not be entitled to nothing, though thrown in, If no cut contract. Mshtzib legislature the negotiation phase the essential subject of Article 12, it is reasonable to conclude also that the right to compensation is the result of a violation of duty, which is conditional according to the said sub-paragraph (a) cutting contract.
The second phrase worthy of attention is the word "party". This phrase is used in routine contract in order to describe who the premiere of an agreement with another. But this phrase should be interpreted primarily by bound formulation, Umsnochno know that Article 12 does not discuss any contract will be cut off if required will be cut off and works, focusing on all of the negotiating phase, has also combine the term "party" for interpretation into the issue discussed in Section, otherwise be disconnected from its surroundings pull no-nonsense wording. Context clearly indicates significance: the negotiations must be a certain way; Party not used to this, sub-section goes on to say (on), can commit to compensation. Sequence and continuity along the lines of the two sub-clauses (Prof. M. A. Rabello, chapters law charges the Roman law into new contracts Law (Institute for Legislative Research and Comparative Law Prof. Harry Sacher, ed) 190) indicate that - " side "sub-section (b) is a person who had negotiated. But this explanation does not exhaust the meaning of the term "side", that sub clause (b) puts the word "party" with two alternatives, which got an excuse to compensation, and creates a link of the term "party" to both: "party" in light of sub-section ( b) He then party negotiations (following the words "damage done to him" - ie the other side - "due negotiation") or side cutting contract (published the words "damage done to him ... due to amputation of the contract").
You can add and ask, why take sub clause (a) the language "person", while the sub-clause (b) uses the word "party", and does not draw from the linguistic differences, that means a material distinction. Behold, I think, that there is no such diagnoses Lhskt conclusion: sub clause (a) discusses the description of the obligation, scope and our case. He clarifies the - by the wording he uses, because Applicability of any person, whether the applicant is to forge a contract, whether extensions of another or is one group of emissaries or representatives. The term "person" is, as usual, the broad wording
Description of the Application, and can resort to this matter also instructions Slfkodt interpretation [New Version] indicating definition of that term on its scope. Sub-section (b) as discussed above result from Article matter (a): sub-section (b) not discussing the whole Alma but put everyone who took part in the negotiations had all or part of, or hysterectomy on the nature of contract liability. Therefore, sub clause (b) does not discuss apply to all but one of Dan liable who negotiated the contract and the right or cut up construction. As a result, who was party to negotiations or contract, as described above, which has suffered a right to compensation or to become a victim (the "other side" language of section).
All in all, sub section (a) applies also formulated in light of the circumstances in which the contract was not created: Since sub clause (b) completes the obligation created sub-section (a) parallel to him, the "party" means a person, who took part in the negotiations prior hysterectomy or hysterectomy of Jose Jose. In other words, "the" not used in accordance with standard Shutooth section 12, the debtor Shadow II d 'compensation matter stated in paragraph (b) is party to negotiations or cutting contract, as that "other side" is one who talks to whom directed or cut contract.
It should be noted again, that there is no contradiction between the demand compensation - according to Article 12 standard contractual compensation claim. A situation, which will be overlap between the grounds under section 12 to one of the other contractual grounds, and by the injured party the choice to which one to turn to - to get the restaurants. According to Professor John his "Article 12 contract law: good faith negotiations" Law M (Tsl"o - L"z) 118, 130;
"There can be overlap between the foundations charges. The same is true regarding the scope of applicability of the charges: Section 12, distinguished Iharing theory, is a bar application even in cases where a contract was cut down at the end of negotiations has been corrupted in the absence of good faith of one of the parties thereto."
In this case, for example, Msfsta company out of business, can respondent entitled to son - his interlocutor to negotiate the man fights. There is no justification and reason to keep him from this relief, because finally tied unlucky enough to contract with that company. As he could sue the principal for damage, making him the negotiations before concluding the contract, so he may address him, Msncrt contract.
Interpretive conclusion is also similar to a bill explanatory Contracts (General Part), Ts"l 1970, p. 131, which states that the injured party is entitled to be returned to its previous state due to enter negotiations or contract. The first alternative referred to circumstances in which there is no contract that his absence is a condition for negotiations entrance evening really - as determining the compensation. It was a conclusion that the bill has taken a tongue side, the intention was also "side negotiations" (whether matured into a contract or not) or to contract .

Examined later on, if this interpretive approach is consistent with the theoretical examination of the provision of the law in question in its various aspects.

The legal substance of Article 12
6. In this context there is no justification to a comprehensive examination of the problem of sorting and classification of the laws of the charges, to express an opinion whether crystallized growing new and separate legal domain, dealing with pre-stage - contracts, which section 12 above is now the focus essence (see Prof. his name , p. 127 the "31).
Has been said that the test wording of Article 12 shows that he is not referring only to circumstances where a contract was cut down but also embracing relationship, the essence of the negotiations currently only focuses on him. The obvious - yes - at least - that we are discussing the issue from the typical contract, even if the position in law is the law of liberty contracts. Light source of the obligation (the theory Culpa in Contrahendo) and following the instructions of theoretical Bhintn parallel those of non-jurist countries in Europe, has concluded that there are different approaches regarding the legal classification; also stated that this matter Swiss legal literature:
"Die Haftung Vorvertraglichen Rechtsnatur der, die fur eine Reihe" Praktischer Bedeutung hat Fragen ... ... Das ist Umstritten. Schlussig argument ist nicht
Translation:
"The essence of judicial responsibility for pre - contractual, that matters for a series of practical questions, is controversial ... the point was raised (details of which are not here to debate - from 'h') is leading a decisive conclusion." (My emphasis - m Q).
Te 7, Zurich) Theo Guhi, das Schweizerishce Obligationenrecht) (95 (1980. Auflage, von. Dr. H. Merz und dr. M. Kummer
So some see it rising Billing Tort (Deliktische Haftung) See also: Dr. D. Pepper, "good faith negotiations cutting contract" the court Aioi (Tsl"o - L"z) 608, 610) and turn and returning to contract or spring - contracts, open to review discuss things (see: Prof. Rabello, the aforementioned book, p. 143, 149, 168, etc.).
For us, this matter now determine the law's confines our freedom, including
There is mention, for example, because our tort laws do not recognize fathers and other damages, not the subscriber is relevant command. Perhaps, as stated, we are witnessing a system of norms Lhtgbsoth new independent, Hmntkt herself from the field, which included instructions of the law of liberty, we contract. As noted above, in this discussion there is no need to decide on Zoning classification that enough in this respect the conclusion that the essence of the matter - as shown in Section 12 - is not limited to contractual terms and does not involve them, and can be created under the provisions of Section 12 liability, that can not be attributed in any contract, since he did not cut at all. The drug, which the injured party can resort to it under section 12 (b), should not be due to - yes the existence of contractual relationship, but breaking the independent obligation, its territory defined in Article 12 (a), determining patterns shape the management of negotiations for a contract of hysterectomy.
Criterion, defined in section 12, is the result of principle - legal basis, works with all aspects of the trial, Palandt, Burgerliches Gesetzbuch, beck) (Compare:. 242, Para 1981 the "(aa). A 1mvnchen it deviates from the areas of contractual relations . application of the principle of contractual relationship actually presented in Section 39 Law of Contracts (General Part), section 6 of the Sale, and more (see last teaching about the comment of Professor in his aforementioned book, p. 79, regarding statements made AE 338 / 73 [1], p. 369). Article 12 sails, as stated above, beyond the existing contractual relationship, in terms of the domain in question it is ahead of them.
Essentially, the clarification of the legal content of instruction, defined in Section 12, frees us from the obligation to reduce ourselves to squeeze contractual level, in terms of subject matter here is the adds strength linguistic interpretation, which has no place to stick, specifically the terms presented in Section 12, existing contractual relations, light of this linguistic interpretation of the above can be interpreted by reference to the system created a special debt, obligations of the parties were negotiating for the board cutting contract. He was only a contractual relationship, presenting the question made sense, what the victim that Yellin, for example, on the board, acting under its authority permission, since that first turn to the sender and Troniito to send and if a contract was cut down, so will be asked, why would place compensation beyond those normally awarded for breach of contract. The answer is that practical justification for determining the responsibility of any person who manages negotiations (and not only of the sender) and creating the possibility to charge any person Ditto compensation under sub-section (b) is that it is stated, the domain, which is a separate and independent from contractual relationship, which charges that immigrants from Article 12 in its entirety. affinity of these is the - yes all those working within defined it, being subject or object of the special relationship in question is also justifies the existence of billing forms.
Needless to add, to remove doubt that for this conclusion is immaterial, if
Reject the thesis regarding the consolidation of a new independent domain laws of the charges and see the billing section 12 of the contract sector. Even then the provisions of Article 12 constitutes an independent and special layer, and a distinction in light of the underlying principle, given the relationship it creates them and Aitoim, as it comes to the practical stage where she discussed in accordance with legislative intent for the scope of personal application.
The conclusion will then necessarily the same as mentioned above, and lead the interpretation, which was given responsibility for anyone who actually party negotiations, whether later became party to the contract or not. Such an interpretation also explains the creation of a new drug of compensation for breach of duty, can be sued under section defined by any party who was actually negotiation.
.7 Formal source of responsibility defined in Article 12 is the law of freedom, namely section 12 (AE 148/77 [2]; AE 838/75 [3]; AE 166/77 [4]). Lau essence - Ctoldto of principle - a legal foundation that combines social boundaries - into the ethical rules that apply to legal actions and other actions associated with them - should be seen as having elements Kognteim: different factual circumstances and variable affect, of course, the concrete form it takes must be an acceptable way to end - a heart, and how implementation of legal standards, the circumstances in question, but the obligation itself will never die, and her condition is also here, that holds that such obligation is not got given circumstances and that it was exempt, it must evidence.
In light of this thesis I would change somewhat - what are you putting words of the distinguished members, Justice Barak, who wrote the ruling, he turned this discussion *:
"... Faith comes from above is a special legal relation between the manager and send or third party, but comes from a factual relation, which the power of faith and belief in the third party to send or administration." (Emphasis mine - m Q).
Annotated, is primarily a source of legal obligation, than the explicit provisions of the law of liberty, which is applied to each side for the negotiations, due to his status in question. This means, in this case is not the implementation of an abstract legal principle to a given factual circumstances, but the determination of the legislature, which became the duty of good faith negotiations towards concluding a treaty norm behind the law of liberty. Norm in question, applying to all those who negotiate, dictates the existence of trusts, which expression birth, we defined translation of reality, influenced by the parallel data from the concrete, which in which

---------------
* PD her (2), p. .725

Managers sides the negotiations. Sichumm of things, from writing a legal obligation to a certain behavior, operated within the relationship, which must be applied. Creates a legal obligation to conduct a legitimate expectation of trust and honesty that does not involve, inter alia, the status of the other interested party directly or Cslohm of others but his status negotiations Ctzr manager.
.8 As distinguished members, Justice Barak in HCJ 59/80 [5], p. 834, the negotiations must be faith in the fulfillment of the trust, which gives the other side:
"Good faith" does not appear in the context of preference for one's right - the other, but in the context of proper behavior and performance of the right to exist. Here demand is behavior, become honest, fair and trust relationship between ... " (Those that manage negotiations) (Name, p. 835, my addition - m Q).
Acceptable, given the nature of this relationship, that good faith tested by the test of "objective" (HCJ 59/80 [5] above p. 835) in the sense that interest in the form of behavior is determined by general standards, the -- accordingly conclude, what should be expected given circumstances the principal negotiations. Essence of the objective criterion, which is necessary to examine the behavior of the side, also covered in the United - States about the rules of the -, uniform commercial code with it said "Good faith and commercial performance," ea Farnsworth Chicago 30 "Reasonableness under the uniform code Commrcial 672, 666 (63-1962). l. Rev:
"Good faith performance has always required the Cooperaton of" secure the expected benefits of the contract. And the standard one party where it was necessary in order that the other might Objective standard, based on the Decency, Fairness or for determining what cooperation was required
הצג סקריפט אנגלי
Laws of corporate mission
9. (A) The next question turns on the application of these rules implement a corporate manager when negotiations; in this context should be examined, if those who negotiate with the director of a corporation acting on behalf of the corporation may And for him to expect the manager to act as honestly and fairly negotiations, Or should Tzifiito be directed to the sender only.
The answer to this question indicates clearly visible from above. As follows from Article 12, each side may negotiate expect that anyone who runs with the actual negotiations, which will have legal status, and if he works for himself and for himself or for others and for whom, would do an acceptable way to end - heart. Conclusion as promptly brings with it the Applicability of Article 12 (b) the manager, acting on behalf of the corporation, which violated the duty of honesty and decency. For integrity testing of the right to add and test the answer to these laws in light of corporate mission.
(B) there is no need to discuss here whether negotiations is an inherent legal action under Section 1 of the mission, Tsc"h - 1965 (AE 793/76 (um, 506/78) [6]; AE 166 / 77 [4] above; AE 84/80, 89 [7]; Prof. A. Barak, "mission Tsc"h -1965 Law" means laws and treaties (Institute for Legislative Research and Comparative Law Prof. Harry Sacher , G. Tedesco Editor, Tsl"h) .68 See also: Professor Englard, "the Real and the mission" Law J. (תש"ם) 359, 364).
Mtsc"h this law does not come to regulate the contractual relationship - or rather pre - contractual - for shipping and a third party (see AE 793/76
(Um, 506/78) [6] above on page 543 with the letter A). We were negotiations between the sending and the third is not controlled directly - by the said law Mtsc"h. Say about that Professor Burke, in his book above, p. 16;
"Laws Act establishes special mission mission. He governs rights and obligations of the parties as far as these rights and obligations may derive from contract cut them. For example, there is no agreement about contract law mission mission between the sender and send. This contract where it exists, subject to general law. Similarly, the mission is not all provisions of law regarding the contractual relationship between the sending and permission running in the third party. As we shall see, in the usual things, sending permission operates within, out of the picture. However, there is no reason why that cut off contract between the sending and the third party, which take the responsibility to submit the third party. No law deals with the mission of this contract, and how this contract actually exists, is subject to general law. " (Emphasis mine - m Q).

X's status as an extension of another does not exempt him fulfilling the obligation arising from provisions of Article 12 (a). Duty to question the mission does not result from sexual or alleged contractual relationship with the other side to negotiate, but the instruction of the law norm regarding negotiations for concluding a contract. Of the matter stated in Section 12 (b) is that to "not out of the picture" with the end of his mission, that Article 12 creates no obligation to conduct only when the existence of mission but also responsibility, consequences can come to Litvin after negotiations ended, he is exempt from For this reason alone cut the meantime contract between the shipper or third party - the contrary - because it failed negotiations. Time to send it will, as Professor Burke, from the picture, as it relates to the law of the mission, will not apply the same result - according to criteria designed about debt management negotiations, Cbitoin section .12
Derivative question is, if there is no conflict of interest can grow with legal implications of mission work and other obligations to negotiate or, in other words, if the duties of the sender to send to dismiss him from the obligation to be an acceptable way to end - note the other side to negotiate . Things, of course, simple solution when there is not, in practical terms, a conflict between loyalty to the duty of good faith and for the other negotiations; but what the court instructed the sender to send, for example, not to reveal certain facts on its own initiative, the duty of good faith was requires Gilwein initiation? Provisions of the Law of Contracts (General Part) Law on the one hand and on the other mission should be tested in that it possible to give them having effect within a trend to resolve them. Under section 8 of the law mission, if accepted to be a board, he must act and act loyally towards the sender in accordance with his instructions; no other intention, the essence of the mission or implied conditions, apply, inter alia, the obligation not to use against the sender news or documents came near him due to mission, usually to avoid anything that has good contrast between the sender and his or interests of another person.
The question of whether a particular use is abuse, be decided by the nature of the use of user intention and by rising from the consequences of use only. On - so do not see any disclosure of facts to the other side to negotiate "abuse", but only because the sender is not satisfied with it after the fact. Anyway, should be seen taking a tongue "abuse" because the reference actually aware, we were aware of circumstances which result to act.
General statement, that to avoid anything that has a conflict of interest as defined above, extends beyond the plane of the acts of malice.
Incidentally, I have accepted the view of Professor Barak, in his book above, p. 402, that the said
Last part to paragraph (5) Section 8 is a mandatory general, presented the corresponding provision of Article 8 Brisha completing it, and that there was no room to include this section in paragraph (5) precisely.
Targeting guidance for solution of our problem are, first and foremost, the directive, which will be stated in Section 8 - "no other intention implies the essence of mission." Other intention, as stated, implied, when the mission is the management of negotiations with third parties that negotiations due to the existence of a legal obligation Kogntit up, she can be, for example, impact the discovery of the facts. While Article 12 does not determine, annotated above, concrete measure, it can be applied literally to the facts of each case, we have to examine what results from the obligation to act in an acceptable end - notice given circumstances; but if you got such obligation - for example relates to the discovery of facts -- d. Do not send its existence and therefore no liability to pay compensation due to reliance on duty under section 8 of the law mission. First, to reconcile his duties under various laws: Section 8 Sbrisha teaching law mission, Hmsiigt system subordinating her duties and the circumstances in which implied a different behavior, giving preferential status implied provisions such as Article 12 of the Law of Contracts (General Part), dictates a different standard, when mission is to negotiate for the conclusion of a contract. Even if you'd like to say that "the conventional way, to turn the said section 12, leaving room for the adoption of standard relations in the mission as an expression of the major provisions of Article 8, the duty of good faith, which controls the integrated light of her baking of these ingredients of Section 12, gives a relative weight greater obligations in section .12
Second, teaching last part of Article 8 (5), which requires refraining from actions that are a conflict of interest, does not dictate behavior, contrary to section 12, does not allow it, but but standard designs, applied to those who undertook a mission. If by nature of the mission and circumstances of the case is not possible to reconcile the debts and maintain the mission debts are derived, as stated in paragraph 8 (5) above, and the criterion defined in Article 12, this does not exempt from responsibility, rising from Article 12 of the two parts ; may be designated to conclude that such circumstances that created conditions that need taking to the mission in doubt. In other words, if circumstances do not reconcile the two obligations, because they contradict each other, not died due to duty shipper responsibility, because it While there is no choice about the way his hands in negotiating behavior, whose management has undertaken, he has no choice when in fact Ntilth of mission itself.
Needless to add, that could send a similar dilemma due to any other statutory provision which requires, for example, full disclosure of facts, and imagine that obligation, arising from sexual mission, would be preferable to the explicit provision of the law of liberty, given circumstances that requires a person submitting information full and complete.

Thirdly, the mere agreement between the sender and to send about hiding certain facts, can in certain circumstances to sculpt the validity of the contract mission, in whole or in part (Article 30 Contracts Law (General part)).
In sum, the duty of loyalty to the mission is subject under the laws formulated by the law to qualify, can arise from the duties associated with the mission, which is unique in nature. Second, the duty to refrain from any action that has hit the sender's interest, she dictated restraint or refraining from action, depending on the nature of matter. But she should withdraw - in light of the said Article 8 Brisha light nature - from the duty on positive behavior is defined, as stated in paragraph .12 of this section requires behavior are acceptable and in the end - heart. To remove doubt I will add in this context that the phrase "acceptable way" does not turn into the position of director of negotiations for the mission of the usual way relationship between sender board but the nature of the negotiations with the other side accepted it in light of the circumstances of its kind. That and this, no man goes by his duty by being an acceptable way, if this road is also accompanied by the requisite circumstances after the heart of the matter.
Provisions of law mission and therefore not fulfilling the obligation laid off rising from paragraph 12 above, and can not be based on the laws of mission for the subject before us to argue for the existence of a measure of "Harp Authority mission." Against this background understood the words of Professor Barak, in his book are "L., p. 391, according to which:
"He should not use the detriment of the sender to send news or documents came to him because of the mission, and should not receive any benefit or a promise of benefit about important issues. Of course, determining the duty of loyalty continues to apply to take into account that there is a certain sector is allowed to consider the interests of himself or of another. " (Emphasis mine - m Q).
I believe that the discovery of significant detail Okardineli deal like this before us, that the land, which turned the deal, all is not owned company, we not only abuse "news or documents came to him (the spur - m Q) due to mission" (Article 8 (5) law mission), but the duty of disclosure to the other side clearly implied duty of good faith imposed on the party to negotiations. This is the same "some cutting," which not only allowed to "consider the interests of himself or of another" but that no duty to do so. In doing so used to indirectly also trust him to sent Avoid Debit compensation, which Btslumm he might commit acts emissary for himself, if he hides from the other material facts.
Epilogue, dismissal may commit compensation under section 12 (b), as was also due to have a mission he undertakes third party damages due to an act of injustice, it did because of his mission (see: Prof. Barak, where, on page 11, compare:. Ghl 287 (1983. 5 th ed, london) fridman fridman, the law of agency).

.10 (A) corporate law: there are no plans to retire this discussion sheet, wide stretches beyond the issue is examined - us, the question deserved an answer is only if corporate law to dismiss the director, who represents the society that he has been in negotiations for concluding a contract , the duties, set out in Article 12 above, or to limit its applicability him.
Companies Ordinance contains special provisions that allow specific circumstances imposing personal responsibility for debts or liabilities of the company manager (Article 234 of the Ordinance). Furthermore, no study of corporate law, that those dismissing the manager is usually the responsibility for the offense or tort, which usually falls in the garden of personal responsibility for their perpetrators. Ie, directorate has no pretense to be used for granting exemption from responsibility, which was applied to perform the act under normal circumstances. Guiding rule in this matter was defined more v. Ferguson case Wilson90-89, at [13] (1866), which states that --
; wherever an agent is Liable those directors would be Liable "Where the liability would attach to the principal, and the." principal only, the liability is liability of the company
Modulus compared to the manager is not an exhaustive description of the status relationship within the company, that common view now sees the company's administration organized and board only Lcb Gower, principles of modern company 146 (1979 jb Cronin & ed., by Lcb Gower) (4 th, london) law this development had already found expression in the relationship between the General Assembly and the manager of the company, the responsibility of the Company to a third party tort, criminal responsibility of The company acts directors (Prof. J. Procaccia, "Law mission, Tsc"h - 1965 company executives" a theoretical statement (Tsl"a) 234, 237, 243). They are about about criminal and tort law limits already stated that his vision of a society organized manager came to expand the company's obligations and to reduce the scope of the manager's responsibility for an act committed by themselves or who was involved in, usually engenders personal liability.
AE 725/78 [8], p. 259, say about responsibility TORT:
"... The fact of a society is organized and does not pull up this matter. If his actions failings immigrants to civil offense, shall be imposed on personal responsibility TORT."
Basic principle and cutting equal, there is no room to create a distinction between tort liability and director and his responsibility to pay compensation for breach of statutory duty in the pre --

Contracts, as defined in Section 12 (b) Contracts Law (General Part). No one died of his personal responsibility tort or breach of statutory duty, it is because it is organized or it will be because he was sending. It's hard to point to distinguish between an independent view of the principal organized criminal and tort law plain sight, contractual level, send, supposedly exemption from responsibility for his actions (Compare: Prof. Frooktzih this article, on page 250, and see: Prof. A. Barak, "corporate law doctrines mission" lawyer pitcher (Tsc"h) 39).
Sichumm of things, when manager did or refrained from doing an act that has to cast blame or liability for personal compensation, remains his personal responsibility, and status of a corporation does not afford them, of course, any immunity.
Internal logic of this approach can be examined in further perspective: he was the manager assumes no contractual obligations to be defined way or bear individual responsibility, it is up responsibilities as stated by law, they were supposed to see the commitment to attack, and there was a notion that power It's doubtful that must due to the legal status of the manager of a corporation. So says, at f. Palmer. 1Vol (1982 rd ed., By c. Schmithoff 23, london) company Law886:
The directors of a company may, of course, contract so as to "". Make themselves personally Liable to third parties
(Regarding validity of contractual obligations to the end - note by the trial began in the United - States see: 189 (1982, boston) ea Farnsworth, contracts following the ruling on the Itek corporation v. Chicago aerial). [14] (1968). Industries, inc).
Issue before us is not the obligation arising from contract, but of duty and liability existing on - according to legislative staff (Prof. of his aforementioned book, p. 79, the "1) and weight strength not less, of course, the weight of a contractual stipulation and, as latter requires specific behavior on the road - even the manager's position in society so the statutory directive, and even more.
(B) as it touches our purposes, you can wake up, because like the modern trend is developing that the company and its managers and workers for her to consider not only the best interests of the shareholders (see: corporate, aa Berle 1049 (1931). Harv. L . Rev 44powers as powers in trust), but also the good of the company's employees, the consumer and the general public as a whole (. Prof.. E "? For whom are corporate managers Trustees". Merrick Dodd jr 1145 (1932). Harv. L. Rev 45 ).

Imposition of the duty of good faith on company directors, managers negotiate for a company with a third party, is another expression of concepts tend to just trust and caution regarding the obligation imposed on directors also to third parties outside the company, as required by the developments in society and the economy. For this purpose integrates Section 12 (a), as it relates to the executive by the company in negotiations with third parties. With the provisions of the Companies Ordinance, relating to the responsibility of the manager.

11. The meaning of duty of good faith
Do not add but a few comments about non disclosure as a breach of duty of good faith. That the subject of further discussion about it only indirectly.
Breach of the obligation to be an acceptable way at the end - can take heart form of default or non - disclosure of facts, when the - the circumstances could be expected that man, director of negotiations, will reveal them to the other side. Disclosure required by Article 12 is actually the discovery as a result of the wishes of the other side. But there are circumstances in which undertakes deliberate delivery of information of information, which is essential to those in the negotiations for concluding a contract. It is said CAC 494/74 [9], p. 144, from the distinguished members, Judge Maisky:
"... When the - under the circumstances to expect that apart from the things spoken descriptions was a place to say things they have in terms of the deal that matter - then you may silence and - the discovery of any information distorts the whole picture evasion them details about - creative representation by silence - false" .
Similar things were said also AE 838/75 [3], Ltd. / 241, by the judge that:
"The behavior at the end - heart when freight - and providing means for concluding a contract of behavior honestly and fairly. We must not mislead the other side - by not openly ¬ important information criterion."
Proper etiquette not only silence and avoidance of lying (see: AE 349/74 [10], p. 833), but are the same honesty and integrity, given circumstances that require action instead of making that "crime was sitting silent" (D. Kerch Mister, "will create contract flaws: wrong error" File lectures during the seminar for judges Tsl"h (Faculty of Law - Courts Administration, S. Sheetrit Editor, Tsl"o) 107, 113). E - disclosure where disclosure is requested is a violation obligation of good faith. circumstances in which the facts have to affect the nature of the arrangements carried out as a result of negotiations between the parties, mandatory disclosure obligation of good faith as an expression (Dr. D. Pepper, this article; Professor Jean Tzltnr, Contract Law of the State of Israel (torch, Tsl"d) 95). There are circumstances, which required the parties to take active action
Disclosure (Compare: AE 323/80 [11]), especially when it is clear the owner of the information between the negotiators, there is a substantial gap between the intention of the other side and what he Bar - objections to - the legal situation the real facts. Duty to end The heart has the duty to discover and clarify facts material before concluding the contract, if it undertakes the light of the nature of the transaction or the light of the circumstances of the case. mandatory disclosure is the result of trust between the parties required the managers negotiated, the origin of this legal obligation, rising from paragraph .12
Incidentally, sometimes can not even rise to the discovery of deception in the sense of Article 15 (see also: Dr. N. Salzman, "negligent false statement at a freight - providing cutting contract" notional sentence report (Tshm"a - MB) 55, 59 .) express a particular act is the lack of end - the heart simultaneously also establish, in parallel, another cause of action (see: HCJ 376/81 [12], p. 458 with the signal on, Dr. F. Goldstein, Uberimae "Fidei insurance contracts after enactment of the Law of Contracts (General Part), 1973 "The theoretical statement (Tsl"o - L"z) 345, 349). Principle of good faith is broad, and the same time to get up prevention alongside another victim cause of action based on more limited foundations. The choice between the various grounds is by his attorney at will.
Summary of this point, there are two grounds, the cause of the lack of good faith reason for the other, live together once, and only one to be established (see Prof. his aforementioned book, p. 147).
In this case the island was made misleading discovery trips. No - the - the land, which turned the deal, was not at all belonged to the petitioners, created a circumstance in which Respondent could be impressed by that subject, he conducted negotiations, does not involve terms other hidden problems or malfunctions, and the other control adequate land, for which he was negotiating. When a buyer negotiating with a salesman who presents himself, he may assume that the seller has the authority to give ownership of the property, and Yair eyes, if there is any reservation completely controlled the property. If that was created, as noted, a picture. Which the buyer had the impression that the petitioners negotiating a sale of property, not found undermine the ear of the respondent to verify. There is reason to assume that his respondent would give the facts. The latter was not hasten to pay for - but against the contract guarantees, which may also require other arrangements.

12. Summary
Light of the above opinion, to the Honorable members, Justice Barak, that damages liability may be imposed under section 12 (b) Contracts Law (General Part), who was party to negotiations for a contract of hysterectomy. Even if not party to the contract cut or not cut down a contract at all.

Former president Y. Cohen: I agree rejected the petition, reasoning that led members joined the opinion of the Honorable, Judge Barak, as I explained my farm ¬ AE 230/80 *. Strengthening this view I found compelling arguments, given now - members Honorable President Shamgar.
Justice A. Barak: 1. Further discussion of this question is "whether compensation liability may be imposed, under section 12 (b) Contracts Law (General Part), 1973, who is not party to the contract was cut down." Presentation of the question this way assumes that following negotiations non-conventional way and is not the end - heart cut contract without negotiating is a party to the contract. The question is whether liability may be imposed on him under section 12 of the Law of Contracts (General Part) (hereinafter - the Law). Article 12 of the law states:
"(A) negotiation of a contract prior to hysterectomy man must act in good faith accepted.
(B) not used to the way side and not acceptable at the end - heart to the other party compensation for damage caused to him due to negotiations by concluding a contract or ... "
It seems that the basis of presentation of this additional discussion question is doubt whether that is to say "party" for the purposes of section 12 (b) is "side" agreement, and therefore non-Party is owed on - according to Section 12 (b), would not even accepted at the end of the road - note when negotiating a contract prior hysterectomy.
2. This question answered former President Y. Cohen ruling - Dino AE 230/80 ** saying: "It seems to me, you can interpret the expression, side ', referring not only with the contract but also to people who were party to negotiations." Honorable members , President, deepened this issue and reached a similar conclusion. This is also my opinion, she supported the language of law, internal logical purpose of the legislation. letter of the law how? The "D", mentioned in Article 12 (b), is a party to negotiations or party to the contract. Indeed , Section 12 (b) distinguishes between negotiating well, not mature to a contract, and negotiations, came at the end of contract. In both cases, the responsibility - under Article 12 (b). is, Sorrow D "may be no way acceptable and not after - the heart, without the conclusion of negotiations cut contract. Fshita, this situation The "D" is a party to negotiations and contract. logic how? Hfrofozitzih first is, as we have seen, if not cut down a contract at all, and party responsible for negotiations Management did not end - the heart and not the usual way. Hfrofozitzih second is - and she no longer controversial - if party negotiations became party to the contract, is not to

---------------
* PD her (2) .713
** Name, p. .728

Deny responsibility for the management of negotiations (see Tzltnr, this book, Volume I, p. 97; his aforementioned book, p. 84). These two Frofozitziot obvious logical conclusion that if someone was party to negotiations, ISA and sang "It was given the responsibility, the fact that someone is cut off treaty party, which is to release a certain responsibility. The purpose of the legislation how? The law should come to impose a standard of negotiations. This standard applies to lies - after which forms ¬ phase of negotiations. It is not inconsistent with the purpose of the legislation to deny responsibility only for the event later - concluding a contract which is negotiating ¬ side between him and negotiations in question has nothing to do. Tall and Simon Reuben, the managers together negotiations to concluding a contract with Levy. Suppose that the two behave that way and not acceptable at the end - note that certain facts do not reveal Levi. Final negotiations, with the agreement all, cut the contract between Levi and Reuben, and Simeon is not made party to the contract. Fshita, responsibility under section 12 (b) rests with Julie and Chris together. Fact, Reuben became a party to the contract, does not affect the responsibility (Frofozitzih B), and the fact that, Shimon did not become a party to the contract, has no responsibility to release him (Frofozitzih C). Responsibility of both formed during the negotiations, contractual latest event which is to influence (assuming that lack of good faith is not related to hysterectomy or actually on the island - hysterectomy of the contract) the responsibility for pre - contractual. Or Tall case, where Reuben wants to acquire the property from Shimon - to sell later Levy. Reuben negotiating with Simon, he does so not an acceptable way and not the end - heart. After it was cut down a contract negotiated directly between Simeon and Levi. Nothing is unthinkable, that due to the fact that Reuben is not party to the contract with Simon, he let go of responsibility for Shimon under section 12 (b) of the Law? Or Tall case, where Reuben is a mediator, and negotiating with Shimon and Levi, to the first of two sell property. Suppose that this negotiation is conducted - by Reuben not an acceptable way and that at the end - heart. Suppose even that eventually cut agreement between Simon and Levi; Is it conceivable that release Reuben responsibility just because he is not party to the contract? (Compare: AE 166/77 [4]) in all three of these examples and many others I see no basis - language, logic or legal policy - not to impose liability on a manager who negotiated the contract does not make the side cut.
3. Apparently I could end here the decision - laws, since I gave my answer - that identifies with Developer distinguished friends, former president J. Cohen President Shamgar - the question presented to us this additional hearing, that damages liability may be imposed under section 12 (b) of the Law on Who is not a party to the contract was cut down. The trouble is, my attitude is not dealt with any legal question, underlying AE 230/80 *. This question is not interested in "just" a person not a party to the contract except as indicated interest ¬ Maovdotio of AE 230/80 * - board manager in

--------------------

* PD her (2) .713

Llachritto open negotiations of a contract, his name instead of sending permission framework. Is "party" is responsible for - according to Section 12 (b), or the sender's responsibility alone. Indeed, the interest of this question does not matter the question, if eventually cut a contract with the sender if not. The question is whether to charge for pre-negotiation phase - contracts, whether cut contract, eventually, with the sender or not. Moreover, regarding this question, no matter that if sending itself became, in the end, party to the contract (with or without the sender) if not. Whether it is a party to the contract or not, whether he has liability damages under section 12 (b) in respect of negotiations not the end - heart and not the usual way, which was conducted with third parties by name instead of sending the postcard permission framework? Doubt stems from the fence so that negotiations were not for sending and not by name but the name of the sender, examination of "extensions of man like him". Are these circumstances is not to say that the issue negotiation - as the matter of the contract itself may grow from him - to send "out of the picture", the outcome of negotiations (responsibility under section 12 (b), as well as concluding the contract itself if the contract was cut down) are imposed only on the sender ? This is the central question, rising another hearing this, its her turn now.
.4 Solving this question - What is the responsibility of the board, the manager openly negotiated not end - the heart and not an acceptable way with a third party under permission - can take three different positions. On - the first approach, management and responsibility for negotiations - in accordance with Article 12 of the law, followed the next, all occur within the permission, and - by virtue of rules of law mission - attributed responsibility to the sender, and send "out of the picture". On - according to this approach of state responsibility under section 12 contract law similar trial itself, just as Slaneino of the contract is responsible for sending, so the issue of responsibility under section 12 of the law. This approach is accepted, in principle (subject to some exceptions), several European countries such as Germany, Italy and Switzerland (see: St41) Palandt, Burgerliches Gesetzbuch 51 (1963) Piotet, Culpa in Contrahendo;. 276, Para (1982,. ¬ Ed on the second approach is to conduct the negotiations, and the responsibility - under Article 12 of the law rests with him. The fact that this responsibility formed during authorization, could lay responsibility on the sender, but not enough to release the extension, responsible for his actions. This approach is acceptable on its distinguished members, President Shamgar. I found her reference jurist of European countries. The third approach takes an intermediate position between these two extremes. to - mouth to be assigned responsibility for special situations only, such as the third party tends to trust send. This is the law in Germany, Switzerland and Italy - within the exceptions in which sales methods - this approach is adopted - 230/80 * CAC hands, he bears further discussion (see: Die Haftung des Stellvertreters bei Culpa in Contrahendo "neue Juristische Muller 22 "Forderungsverletzung) und Positiver 2169 (1969). Wochenschrift

---------------

* PD her (2) .713

.5 In Smantit - technically you can take each of the three options without harm language law. Seeks to adopt the first approach, which sent "out of the picture, point out the connection between law and the law of the mission. This connection is essential - last line of this argument - not just to "get" the send a picture but also to "get" the sender's picture. Light of this connection, the act requires the sender to send (either because she was "legal action", or because she analogy legal action), and send is not responsible. You can also say that in light of law mission, which deals with negotiations Section 12 of the law, is the weight and give the sender and not the spur. Seeks to adopt the second approach points to the language of Article 12 of the law, that responsibility rests with those who conduct the negotiations, this is actually - by sending. The third approach is possible in language of the law, if an extension of the first approach and reducing the second approach.
.6 Three approaches are possible both in dogmatic. First approach, naturally, points to the intimate connection between responsibility under section 12 of the law and responsibilities under the contract itself. Responsibility under Article 12 of the law is to describe contractual liability based on a conceptual agreement ¬ Annex, which take themselves participants in the negotiations must be an acceptable way to end - heart. While this responsibility in an earlier primary contract itself, but is projected onto him tied with him. Slanein contract as principal himself sent out of the picture, so the law regarding the contract appendix. This symmetry is also achieved with responsibility - the law according to Article 39, pertaining to contractual responsibility herself. In dogmatic approach has an advantage over the second approach, which creates imaginative "dangerous" and responsibilities under section 12 of the law and the responsibility Hnzyakit, both works is the fact that major shipment permission to release personal responsibility. The second approach, naturally, points to nature's independent statutory liability on ¬ accordance with Article 12 of the law. This responsibility is a special kind, and that character is not necessary to take her plaid existing contractual responsibility or Nzyakit. She stands on her legs, she requires the creation of special legal norms do so. The third approach points to a fundamental law of the "cutting contract. These laws are based on trust prevailing between the negotiators. Instead there is confidence that, should he apply to liability for, if within the first approach (an exception to the principle to send "out of the picture") if within the second approach.
.7 What way shall we go? It seems to me, that place tongue law creates a number of interpretive options, dogmatic arguments are not decisive, he should give weight to considerations of proper legal policy. Support the first approach is to point out that, because every different approach which will be heavy to balance on. Who sucker ready to act if the sword of Article 12 Ttnoss off at any time? Indeed, if Article 12 of the law imposed liability only where the lack of good faith is subjective - so be it. But - according to the conventional approach in Section 12 of the law has objective foundations. There is no justification to impose liability "objective" on send, not
But a tool of the sender. Who ought to bear the risks, resulting from the instruction section 12 of the law, is the sender, who may safely disperse the responsibility thrown.
You can also add a note that the theory - Culpa in Contrahendo created and developed in Continental, and if, after two hundred years of development, did not see fit to impose full responsibility for sending, the imposition of this responsibility - on - the second approach - to inspire fear and discomfort. Support the second approach is to vote on the purpose of the legislation, which intended to determine a proper level of negotiations. This standard ought to apply to anyone who actually negotiate, and it is not desirable at all, in terms of legal policy, to release emissaries this responsibility. Many cases, commercial and social life advanced, including negotiations for concluding a contract goes on - by the emissaries, and it is advisable to vaccinate whole population is distinguished from the obligation to be an acceptable way at the end - heart. On - according to this approach is not to worry, people will be afraid to act shipments, since the obligation, imposed on - according to Article 12 of the law, is required, that a decent person can stand it, and anyway in most cases be able to return, claim an indemnity, to sent. True, you may major shipment faces a dilemma, but it must take a stand in this dilemma and avoid any unfair negotiations. This is the proper legal policy. Finally, precisely because responsibility under section 12 of the Law is our young, then we are freed of dogmatic considerations continental approach, we may even have set ourselves in our own way.
.8 These conflicting considerations of legal policy stood before me as I had to choose between AE *. 230/80 against the existence of these chose the third approach. Legal policy that supports this approach, which is balance. There is no recognition of personal responsibility to special situations, without opening for overall responsibility, whose results will be difficult to predict. It has a safe walking on familiar ground - which also was given a responsibility Bkontinnt - while leaving open the future of open Lharhbtm cases, which will be imposed on the personal responsibility to send. the ¬ So I insisted that "no Numerus clausus of situations, caught in Teaching Law Article 12" **, and that "we can get inspired interpretation of foreign sentences, but we will shape the scope of Article 12 of the law on contracts - according to our needs" **. I thought that as long as no general theory was developed enough of a responsibility under section 12 of the law - if it is contractual or Nzyakit or kind - contractual or statutory unique (see Rabello, the aforementioned book, p. 190) - he should walk carefully in Colleges that avoid sweeping, beyond what is necessary for decision in the conflict was ahead. On - *** Yes I noted that "we can leave this workshop occasional, because I think that will be our approach in principle regarding the scope of Article 12 Applicability of the drug law that will, should he apply the provision of Article 12 on the behavior of the board or manager in any case , where the third party, the principal negotiating

-------------

* PD her (2) .713

** Name, p. .725

*** There, on page .724

With delivery or manager, tends to trust that that board director. "However I was aware that I took the interim approach creates some difficulty. On - according to my attitude, creates a factual relationship, if appropriate, mutual trust, and trust that he creates the duty negotiate at the end - heart and acceptable. And now, the cleanest way of thinking should be changed. The existence of Article 12 of the law is what creates the obligation to negotiate at the end - heart and acceptable. this obligation is derived from mutual trust between the managers negotiated, and trust that imposes responsibility system given facts of negotiation. was aware of the time that that the approach can be justified by the German, in Germany there is no statutory provision similar to Article 12 of the law, and practices in this matter are judgmental, whereas here there is a statutory provision. However I consoled myself that, Italy is corresponding provision very similar to ours - is teaching civil codex Section 1337 ( "the process of cutting contract negotiations the parties to act accordingly, Tom - B") - and, even in Italy reduce the responsibility of sending special situations of trust only. because of the difficulty mentioned -- Did not the previous duty of trust - I mentioned decision - laws * that "the trust said no special legal origin in relation to shipping or the manager and the third party, but comes about factual" and that "the obligation to negotiate an acceptable way to end - the heart is a general obligation, from which are derived, naturally, concrete obligations on - the special circumstances of the case "**.
.9 The question now stands again before us. I could settle back on the previous standing. But it seems to me that further discussion of it - before an expanded panel of judges ¬ puts before us a new opportunity to walk one step further, gradual transition into the third approach, it stood before, the second approach of the Honorable Members, President Shamgar. I suggest my friends to walk this way. Does not a revolution but a gradual development from the base AE 230/80 *** deposited at law before us.
There is, in this walk, creating a proper infrastructure Dogmatit responsibility under section 12
Law. It has to give an expression of legal policy, which determined the level of behavior, based on trust and integrity, began on anyone who runs the actual negotiations for concluding a contract, which will be its function. This approach is because taking a stand regarding the nature of legal responsibility under section 12 of the law beyond the assertion that this particular statutory responsibility itself. It has the power, as part of their obligation covers situations in Article 12 of the law permanent, regardless of those special situations, standing at the base of my attitude AE 230/80 ***.
.10 Bothered by the question, if you do not approach members of the distinguished President Shamgar, in order to block the road to the imposition of liability on the sender himself. Honorable members emphasizes the actual negotiations, and this is only sending. Resting my opinion that this result is not obvious

--------------------

* Name, p. .725

** Name, p. .726

*** PD her (2) .713

Included. Responsibility of the sender can be based on the laws of the mission, which the act of sending ( "legal" scope for the "Hmtrielit") requires the sender. You can also access Lvssh that the obligation to negotiate an acceptable way to end - heart is not only a duty but also to the sender's personal duty, which name negotiate on its behalf. Behavior of sending - whether it imposes personal liability on him or not - has, under suitable conditions, to violate this personal obligation of the sender, usually non-transferable (see Englard, in his article above, p. 366).
.11 I therefore conclude that dismissal, the manager called sent overt negotiations hysterectomy of a contract with a third party, must - along with sent - to the third party acceptable way at the end - heart. When it was his duty, to be imposed on responsible under section 12 of the law, and - if the question presented to this additional meeting - even if the contract is not to sender.
Judge M. Maisky: I also accepted the conclusion that by virtue of Section 12 (b) Contracts Law (General Part) compensation liability may be imposed on non-party to the contract was cut down; matter Lubna answer is positive on - by the distinguished President, and I see the need add.
Since discussion was reduced only to this question, the detailed reasons for rejecting the petition sufficient answer to the above, without the need to expand further questions, including the question referred to the distinguished members, Justice Barak, the original ruling, which turned the petition (AE 230/80 * ), if you can establish grounds for compensation for ways to negotiate prior to concluding a treaty on sections 35 and - 36 Wrongs Ordinance [New Version].
Justice S. Levin: additional discussion was limited to the theoretical question, if compensation liability may be imposed, under section 12 (b) Contracts Law (General Part), who is not a party to the contract was cut down. This is a clear question of interpretation of Article 12, and my opinion is that to answer affirmatively rule against petitioners.
Question, what is true of the "stranger" is also a board contract, does not need this additional hearing decision; If I had to decide it, I was inclined to join my friends dignitaries. President Judge Barak, to wit, that Article 12 could be an independent source to imposing liability on without question to decide, what are the specific circumstances, wild may be imposed on such indebtedness.

Decided to reject the petition.

Petitioners shall Bhutzaotio of Respondent in the amount of 000, 150 shekels.

Given today, H. Tel-Aviv, Tevet (14.12.83).

_______________

* PD her (2) .713