1 (1991) 45(i) P.D. 749, at 760 (hereinafter: the Zerzevsky case).

2 Levi v. The Prime Minister, (1990) 44(ii) P.D. 213, on the issue of the monetary guarantee given to secure the fulfillment of a political agreement (hereinafter: the Levi case); Shalit v. Peres (1990) 44(iii) P.D. 353, on the issue of publicizing political agreements (hereinafter: the Shalit case); the Zerzevsky case, supra n. 1.

3 (1991) S.H. no. 1345, p. 90 (hereinafter Amendment no. 12)

4 The Shalit case, supra n. 2, at 358.

5 Ibid., at 363; see Ressler v. The Minister of Defence (1988) 42(ii) P.D. 441, at 607, where Barak J. considers coalition agreements to be an acceptable tool in Israel.

6 For additional definitions of a political agreement see the judgment of Barak J. in the Zerzevsky case, supra n. 1, at 836, defining a political agreement as “agreement between parties considering the policy and structure of the government, and the ways to apply governmental authority”. See also Barak, D., The Contractual Liability of Public Authorities (Tel Aviv, 1990, in Hebrew) 41–42Google Scholar, defining a political agreement as “a commitment made by a person or a body of public status concerning political objectives and the means by which these should be reached”.

7 (1964) 18(iv) P.D. 603 (hereinafter: the Albaz case).

8 Ibid., at 610.

9 “Racial Discrimination in a Coalition Agreement”, Directives of the Attorney-General, 21.480 Vol. B (Aug. 1, 1985)Google Scholar.

10 It is said that these principles are “law”, based either on judge-made law, or on secs. 30 and 61(b) of the Contracts (General Part) Law, 1973 (27 L.S.I. 117) (hereinafter: The Contracts Law).

11 Zo'abi v. Abu-Rabia (1981) 35(ii) P.D. 262, at 267. Also see Directives of the Attorney-General 21.480, supra n. 9.

12 See Rubin v. Berger (1987) 41(i) P.D. 73, at 81 (hereinafter: the Rubin case), and the Zerzevsky case, supra n. 1, at 846-847 (per Barak J.).

13 “Government Authority to Limit its Powers in a Contract”, Directives of the Attorney-General 21.461 Vol. B (Sept. 1, 1970)Google Scholar.

14 This doctrine, regarding vital public needs, was formed in Miller v. The Minister of Transport (1961) 15 P.D. 1989. See also Laviv v. The Minister of Finance (1970) 24(ii) P.D. 313; Anglo-Palestine Bank Ltd. v. The State of Israel (1984) 38(iii) P.D. 589. Let it be noted that all these cases deal with government contracts with private parties, and not with political agreements.

15 See Witkon, A., “Justiciability” (1966) 1 Is.L.R. 40Google Scholar.

16 Axelrod v. The Minister of Religious Affairs (1968) 22(i) P.D. 80, at 83.

17 It should be noted that prior to this petition, there was another one regarding the publication of coalition agreements that deal with the formulation of a government (the Shalit case), but there, the Supreme Court advertently chose not to discuss the actual legal validity of coalition agreements, and discussed merely the question of their publication.

18 The third Justice on the bench, Goldberg J., stated that the question of validity of a political agreement only arises when one of the parties to such an agreement asks to be released or asks that the validity of the agreement be declared (and not, as in this case, when a third party files the petition). Therefore Goldberg J. did not relate to the validity of a political agreement.

19 This distinction between normative justiciability and institutional justiciability was introduced by Barak J. himself in Ressler v. The Minister of Defence, supra n. 5. Connected to this is a secondary disagreement between the Justices concerning the meaning of sec. 33 of the Contracts Law. Elon D.P. sees in this section, which deals with the granting of a mark, award or prize, an example of a situation where legal norms exist but where there is no legal criterion to deal with them. Barak J., on the other hand, sees in sec. 33 an example of a situation where normative justiciability exists but institutional justiciability is lacking; there is a contract, but the court will not discuss it.

20 Foundations of Law, 1980 (34 L.S.I. 181).

21 The Rubin case, supra n. 12, at 77-78.

22 Supra n. 2, at 359.

23 See chap. A of the Contracts Law.

24 Compare with sec. 1134 of the Code Civil under which a contract has the power of law towards its parties.

25 Cases of the first kind may occur whenever the offer and acceptance do manifest the parties' consent to make a contract with each other, but the unexpressed state of the parties' mind is different. Cases of the second kind may occur, for example, in the lack of definitive expressions of the will of the parties.

26 See Zeltner, Z., Contract Law (Tel Aviv, 1962, in Hebrew) Vol. I, pp. 190 and 202Google Scholar; Zeltner, Z., Contract Law in the State of Israel (Tel Aviv, 1976) 40–41Google Scholar.

27 An interesting example is provided by Famsworth, regarding a case where it was claimed that a politician is contractually bound by the promises he has made in an election campaign. This claim was rejected. Farnsworth, E.A., Contracts (Boston, 1982) 116–119Google Scholar.

28 Aliyah, P. S., Essays on Contracts (Oxford, 1986) 12, and 18Google Scholar.

29 For example: property law dealing with the protection of intellectual property; tort law dealing with libel and protection of privacy.

30 See also Adras Construction Equipment Ltd. v. Harlo & James G.M.D.H. (1988) 42(i) P.D. 221, at 237, 278.

31 See, on the contrary, the judgments of Barak J. in the Rubin case, supra n. 12, at 77, and the Zerzevsky case, supra n. 1, at 831, where he leans towards the opinion (yet doesn't decide), that contract law in general and the Contracts Law in particular are not directly applicable to political agreements. However, in the Zerzevsky case, supra n. 1, at 839, he states that the court may “learn” from private law and “take into account” its regulations as a means of consolidating the laws of political agreements. At p. 853 he states that it is possible to base his conclusions also on private law (which is what I am doing here). It seems that in the Zerzevsky case, Barak J. withdrew fully from his position in the Rubin case, supra n. 12, at 79, regarding the application of the Contracts Law to political agreements via sec. 61(b) of the Law.

32 Yet it is doubtful in my mind whether it is correct to assume, as Barak J. repeatedly does in the Zerzevsky case, supra n. 1, at p. 839 (and also Elon D.P. at 785), that parties to a political agreement serve as representatives of the public. From this assumption, Barak J. concludes the ruling of public law. In my opinion, one should make a fine distinction between public bodies which are indeed trustees of the public, and the political bodies. The latter do not always act for the public. In many cases the parties to a political agreement are motivated by a sole desire to govern and control. Parties to such agreements are not always public institutions, but rather private individuals with a strong desire for power and for public position.

33 See Amendment no. 12 of the Basic Law: the Government, where the Knesset expresses its objection to the phenomenon of political defection and breach of faith of public representatives (see: Bill for Prevention of Breach of Faith (Public Representatives) 1990, H.H. 210). It should be noted that sec. 5 of the proposed amending law — which states that the Law's regulations are not to discard laws which declare an act or an agreement illegal or unenforceable — conforms with my view regarding the application of contract law as the law applicable for political agreements.

34 22 L.S.I. 257, as amended in Amendment no. 12.

35 The Zerzevsky case, supra n. 1, at 851-863.

36 A. v. The Ministry of Defence (1980) 34(iii) P.D. 706, at 716; Israeli Center for Contractors and Builders v. The Government of Israel, (1980) 34(iii) P.D. 729, at 748; Dapei Zahav Ltd. v. Israel Broadcasting Authority, (1981) 35(i) P.D. 421, at 435; Dwick v. Bachar, (1981) 35(ii) P.D. 197, at 199 ff.

37 But see the judgment of Barak J. in Burial Society v. Kestenbaum (1992) 46(ii) P.D. 464, at 537 et seq., where he interprets the concept of public policy in sec. 30 of the General Contracts Law in a very wide and elastic manner, as bringing into private law the basic principles of the legal system.

38 Fender v. St. John-Mildmay [1938] A.C. 1, at 38.

39 Supra n. 9.

40 25 L.S.I. 11.