מכאוס לעקיבות בדיני המסוימות: מסוימות והשלמה מהותית – הילכו שתיים יחדיו?

The formation of a contract under Israeli law necessitates two cumulative elements: “Gmirat-Da’at”, i.e., a resolute intention to create an obligation, and “Mesuyamut”, i.e., definiteness of the agreed upon transaction. According to statute and entrenched case law both elements are essential. However, an examination of the case law casts doubt on the necessity of the definiteness requirement. The Article exposes a long-recognized judge-made rule under which courts are authorized to complete or supplement a void in the parties’ agreement even if the void touches upon a substantive or fundamental issue. The article provides a critical analysis of this judge-made rule on two levels. On the descriptive level, it is argued that the “substantive completion” rule is starkly inconsistent with the definiteness requirement. This is because under this requirement the contracting parties themselves must agree upon every material aspect of their deal. Thus, an “analytical dissonance” has been created whereby two contradictory norms co-exist at the heart of the law of formation. Having exposed this dissonance, the Article moves on to speculate on the reasons for its creation and for its persistence over time – with almost no judicial or academic disapproval or critique. On the normative level, the article claims that the rule undermines the important rationales of the definiteness requirement, thus thwarting important social values. In addition, it obstructs the proper development of the definiteness doctrine which, to date, suffers from serious stagnation. Hence, the courts would do best to abolish the substantive completion rule. By so doing, they will have reaffirmed their commitment to the definiteness requirement, and will have removed a time-honored, harmful, and unnecessary incoherence from the law of contract formation.