1 For a similar definition, see: Zerzevsky v. The Prime Minister (1991) 45(i) P.D. 749, at 836 (per Barak J.).

2 See per Elon D.P., Zerzevsky v. The Prime Minister, ibid., at 794: “Anyone who cares about the level of political culture, abjures such political conduct that seriously taints the political, societal, and moral image of various political bodies… the electorate… and the public at large have reacted most strongly to them, and it is to be hoped that this reaction will bring about the reform of these aberrant phenomena”.

Understandably, political agreements are, at times, concluded between party defectors and other parties on the basis of the ideological loyalties of the defecting group. Such agreements are not deemed objectionable. But it is difficult to draw the line between an agreement intended to advance personal or institutional political gain and one intended to achieve the legitimate representation of a political group. On this distinction, see Rubinstein, A., The Constitutional Law of the State of Israel (4th ed., 1991, in Hebrew) vol. I, 445–446Google Scholar.

This approach, developed by Barak J., distinguishes between normative non-justiciability and institutional non-justiciability. Normative non-justiciability concerns instances where the nature of the material does not allow for a judicial decision due to the lack of legal criteria. Institutional non-justiciability refers to conflicts that should properly be decided by a forum other than the courts. Barak J. rejects the doctrine of normative non-justiciability, though he admits that recourse should be made to institutional non-justiciability “In special cases, wherein the fear of the public's loss of faith in the judiciary outweighs the fear of their loss of faith in the law”. Ressler v. The Minister of Defence (1988) 42(ii) P.D. 441, at 496.

For a description of the two approaches and criticism of the “negating” approach, see: Landau, M., “On Justiciability and Reasonableness in Administrative Law” (1989) 14 Iyunei Mishpat 5Google Scholar.

4 Zerzevsky v. The Prime Minister, supra n. 1, at 765-774 (per Elon D.P., who recognizes the non-justiciability barrier and criticizes the distinction between normative and institutional justiciability); 855-857 (per Barak J., who defends his approach against the criticism).

For an example of the difference in their approach in the matter of the good faith principle, see, per Elon D.P. in Laserson v. Shikun Ovdim (1984) 38(ii) P.D. 237, at 262-263, advancing the view of limited application of the principle, as opposed to Barak J. in Beer Sheva Public Transport Services v. The National Labour Court (1981) 35(i) P.D. 828, at 836, supporting a broad application of the principle. Both cases related to the construction of sec. 39 of the Contracts (General Part) Law, 1973 (27 L.S.I. 117). The dispute came to a head in regard to the construction of the good faith principle under sec. 12 of the Contracts Law in the Additional Hearing in the matter of Beit Yules Ltd. v. Raviv Moshe and Co. Ltd. (1989) 43(i) P.D. 441, at 471-473 (Elon D.P. delivering the majority opinion restricting the obligation under sec. 12); 478-486 (Barak J., dissenting, supporting a broad application of the principle).

5 Axelrod v. The Minister for Religious Affairs (1968) 22(i) P.D. 80, at 83. Witkon J. said of political agreements: “Ceasing to be ‘obligatory’ does not blunt its edge. In any event, such a political agreement is non-justiciable”.

6 Zo'abi v. Abu Rabia (1981) 35(ii) P.D. 262. H. Conn J. employed contractual norms in order to arrive at the conclusion that, due to laches, the petitioner could not rely upon rescission of the agreement for fraud.

7 Rubin v. Berger (1987) 41(i) P.D. 73, at 77-78. Barak J. based his decision upon the intent of the parties.

8 Supra n. 1.

9 Ibid., at 796-799 (per Elon D.P.); 838-839 (per Barak J., who no longer viewed the intent of the parties as the deciding factor in categorizing the political agreement, ibid., at 836-838). And see an earlier statement in the same vein: Ressler v. The Minister of Defence (1988) 42(iv) P.D. 411, at 507, in which Barak J. expressed the view that a coalition agreement could create a public-law obligation to perform it.

10 Zerzevsky v. The Prime Minister, supra n. 1, at 788-790 (per Elon D.P.); 843-844 (per Barak J.).

11 Albaz v. The Minister for Religious Affairs (1964) 18 (iv) P.D. 603, at 610; Zo'abi v. Abu Rabia, supra n. 6, at 267; Rubin v. Berger, supra n. 7; Levi v. The Prime Minister (1990) 44(ii) P.D. 213; Zerzevsky v. The Prime Minister, supra n. 1.

12 In Albaz v. The Minister for Religious Affairs, ibid., at 610, Berinson J. stated: “An inter-party agreement is not invalid as such, but it may be invalidated if it forms the basis for an action that contradicts the legal principles”. Hence Barak J. infers, in Zerzevsky v. The Prime Minister, supra n. 1, at 836, that, on its face, a political agreement is justiciable.

13 For a discussion of the problem of the juaticiability of contracts in general, and of political agreements in particular, see Friedmann, D. and Cohen, N., Contracts, vol. I (1991, in Hebrew) 320–385Google Scholar.

14 Sec. 5(b)(c) of the Gift Law, 1968 (22 L.S.I. 113).

15 Sec. 3(2) of the Contracts (Remedies for Breach of Contract) Law, 1970 (25 L.S.I. 11).

16 An example par excellence of an almost entirely unprotected contract is that of a contract prescribed by the statute of limitations. We shall not, however, relate to limitation of actions, since prescription is not limited to a particular category of contracts, but applies to all contracts and obligations. It is a general, legal arrangement (Prescription Law, 1958, 12 L.S.I. 129) that does not raise special problems in regard to contractual justiciability.

17 For a discussion of wagering contracts, see D. Friedmann and N. Cohen, supra n. 13, at 343-355.

18 If it does not fulfil the substantive requirement of form, it cannot be deemed a contract. On the formal requirement, see Cohen, N., “The Form of the Contract” (1989) 38 HaPraklit 438Google Scholar.

19 Sec. 30 of the Contracts (General Part) Law, 1973.

20 The legislature has not been consistent in terminological distinction between “agreements” and “contracts”. Thus, The Collective Agreements Law, 1957 (11 L.S.I. 58), treats of binding agreements, that is, of contracts. However, there are limitations placed upon the breach of a collective agreement. Section 24 of the Law provides that: “Notwithstanding any law, an employees' organisation or employers' organisation shall not be liable to damages for an infringement of its obligations under a collective agreement save to the extent that it has expressly been made liable thereto by a general collective agreement”.

21 For a discussion, see D. Friedmann and N. Cohen, supra n.13, at 332-343.

22 Cf. Zerzevsky v. The Prime Minister, supra n. 1, at 796-797: “There is a great, substantive difference between … a contract in private law and … a political agreement, especially since it is not of a general character” (per Elon D.P.); and see at 837-838: the approach according to which the intention of the parties will not suffice to create a contract “does not apply where there is an economic interest” (per Barak J.).

Emphasis of the economic basis of contracts led the House of Lords to establish, at the turn of the century, that in an action for breach of contract, the plaintiff is entitled to compensation for economic injury, but not for mental anguish or embarrassment resulting from the breach. This rule has since been modified in England, see Addisv. Gramophone Co. [1909] A.C. 488 (concerning dismissal). In Israel, the court is granted discretion, under sec. 13 to the Remedies Law, to grant damages for non-monetary injury. It should, nevertheless, be emphasized that such compensation remains the exception in contract law, and it is not granted as a matter of right.

23 Regarding gratuitous transactions in Israeli law, see D. Friedmann and N. Cohen, supra n. 13, at 471 ff.

24 Another consideration in non-intervention in Buch contracts is related to the distinction between normative and institutional non-justiciability, supra n. 3. There are those who hold the opinion that the court will not intervene in giving marks since an alternative decision-making forum exists. This is the view expressed by Barak J. in Zerzevsky v. The Prime Minister, supra n. 1, at 865-856, who cites instances in which the court intervened in the question of giving marks: Moscowitz v. The Adjusters Council (1990) 44 (ii) P.D. 236. When the nature of the benefit rules out the application of contract law, we may speak of normative non-justiciability, whereas the existence of an alternative forum as an argument for the non-justiciability of a contract parallels institutional non-justiciability. For a general consideration of this distinction, see D. Friedmann and N. Cohen, supra n. 13, at 330-332.

In regard to political agreements, Elon D.P. speaks of “public judgment”, meaning that the public must be left to “judge” a party that does not uphold its end of a political agreement. Barak J., who considers political agreements to be justiciable, speaks of public law, that is of the agreements being subject to legal norms (these terms appear throughout the judgment: Zerzevsky v. The Prime Minister, supra n. 1, e.g. at 799 and 854-855). The concept of “public judgment” is related to the idea of an alternative, if informal, forum for decision that negates the jurisdiction of the court As long as an agreement is viewed to be non-justiciable, it remains in the informal jurisdiction of the environment in which it was concluded. Thus, a non-justiciable gift agreement falls within the informal jurisdiction of the family forum, and similarly, a nonjusticiable political agreement. The informal, alternative forum is the result of the definition of the agreement as non-justiciable, and is not necessarily an independent reason for non-justiciability.

25 Cf. Calabresi, and Melamed, , “Property Rules, Liability Rules, and Inalienability: One View of the Cathedral” (1972) 85 Harv. L. R. 1089, at 1111–1115CrossRefGoogle Scholar.

26 There are two approaches to the theoretical discussion of contractual justiciability. One holds that the deciding — and exclusive — test is the intention of the parties. This approach is supported in Israeli law by the declared position of the Contracts Law, which does not in any way limit the type of benefit that may be the subject of a contract. There are agreements that are removed from contract law or shifted to the sidelines due to their being void (i.e., illegal contracts), but this does not help us as the presumption in the “pure” field of justiciability is that the agreements considered are lawful but, nevertheless, not to be deemed as binding contracts under law. The first approach thus holds that, on the theoretical plane, there is no limit upon the type of agreements that are fit to enter the realm of contract law.

The second approach to the question of justiciability holds that there are principles inherent to the concept of contract that limit its scope and that are without the control of the parties. Such mandatory principles are based, in essence, upon the type of benefit that can properly be the subject of a contract (Von Mehren, 7 International Encyclopedia of Comparative Law 27, esp. text at nn. 117 and 124). The scope of contract law extends to conduct that is primarily economic. Thus, an undertaking to grant friendship cannot become a contract, even if the parties so intend. Barak J. tended toward this view in Zerzevsky v. The Prime Minister, supra n. 1, at 838, and we take this view as well: D. Friedmann and N. Cohen, supra n. 13, at 327.

There are cases to the contrary, in which, by the language of the agreement, the parties did not intend to conclude a binding contract, yet despite their declarations, the agreement will be justiciable and will create rights and obligations under law. A common example is that of an exculpatory clause intended artificially to render a contract non-binding: D. Friedmann and N. Cohen, ibid., at 378-382.

27 Subject to several exceptions: see Friedmann, D., “Consequences of Illegality in Israeli Law” (1977) 5 Iyunei Mishpat 618, at 637–643Google Scholar, and (1978) 6 Iyunei Mishpat 172Google Scholar.

28 On restitution in contracts that do not meet the formal requirement, see N. Cohen, supra n. 18, at 450. Regarding restitution for the non-existence of a claim, see Friedmann, D., The Law of Unjust Enrichment (Tel Aviv, Bursi, 1982, in Hebrew) 411–414Google Scholar.

29 With the proviso that, under sec. 31, the court is empowered to order the performance of an illegal contract, if the party seeking performance has discharged its obligations under the contract.

30 Cohen, N., “Good Faith in Bargaining and Principles of Contract Law” (1989) 9 Tel Aviv U. Studies in Law 249, at 260–263Google Scholar.

31 On restitution under an illegal contract, see sec. 31 of the Contracts Law. For a commentary of the provision, see D. Friedmann, supra n. 27.

32 This was the situation under the prior law, supra n. 27.

33 Per Barak J. in Rubin v. Berger, supra n.7, at 81. However, in Zerzevsky v. The Prime Minister, supra n. 1, at 836-838, he no longer tended to attribute the same importance to the intention of the parties, and it would seem that the matter is outside their control. See also supra n. 9.

34 The Contracts Law does not pose an independent requirement of intention to conclude legally binding relations. It can be said that, formally, this principle is derived from the requirement that the parties be resolved to conclude a contract. Indeed, the case law has construed this element as being identical to the principle of intention to form a legally binding relationship: Zandbank v. Danziger (1976) 30(ii) P.D. 260, at 266; Marom v. Tel-Aviv University (1983) 37(iii) P.D. 518, at 521-522. Deutech, S., “Resolve and the Intention to Form Contractual Legal Relations in Jewish, English and Israeli Law” (1979–1980) 6–7 HaShnaton Halvri (Yearbook of Jewish Law) 73, at 99Google Scholar.

While the demand for intention to create legal relations may be viewed as latent in the element of resolve (secs. 2 and 5 of the Contracts Law) it would seem that, substantively, the element of intention is grounded in the concept of freedom of contract. That very freedom that allows the parties to bind themselves by contract (freedom of the parties in the positive sense), is the same freedom to conclude an agreement that does not constitute a contract (freedom of contract in its negative sense). The Contracts Law applies by its very definition to a “contract”. That is, it applies to an agreement between parties that is intended to bear legal consequences. Anything that is not intended to give rise to such consequences is not a contract, and is not subject to the Contracts Law: D. Friedmann and N. Cohen, supra n. 13, at 325-326.

34a See infra n. 54.

35 The agreement gave rise to the petitions in Levi v. The Prime Minister, supra n. 11, and Zerzevzky v. The Prime Minister, supra n. 1.

36 Lent v. The Prime Minister, supra n. 11.

37 Zerzevsky v. The Prime Minister, supra n. 1, at 810-812, per Elon DP.; at 851-852, per Barak J.

38 On the various distinctions among agreements in public law, see D. Friedmann and N. Cohen, supra n. 13, at 355-358.

39 Purely commercial agreements between public authority and private individuals or between the public authorities themselves do not fall within the category of public or administrative agreements, but are contracts for all intents and purposes, subject to the special laws that apply when a public authority is a party to a transaction.

40 This is the English law as established in Amphitrite v. The King, [1921] 3 K.B. 500. This rule has found expression in Israeli case law: Ouman v. The Minister of Commerce and Industry (1978) 32(iii) P.D. 469, at 474. For criticism, see Shalev, G., Government Contracts in Israel (Jerusalem, 1985, in Hebrew) 98–99Google Scholar.

41 Miller v. The Minister of Transport (1961) 15 P.D. 1989; Tsouba v. The Minister of Defence (1980) 34(ii) P.D. 572; Rubin v. Berger, supra n. 7, at 81; The Israel Farmers Association v. The Minister of Agriculture (1989) 43(i) P.D. 309, at 314-315; The Israel Football Association v. The Minister of Education and Culture (1989) 43(ii) P.D. 179, at 182: “[…] the promise of a public authority can be of but limited results, in regard to a given period; […] such a promise can never be viewed as a waiver by the authority of the use of its governmental authority …” (per Matza J.); Kupat Holimv. The Be'er Sheva Municpality (1989) 43(iv) P.D. 488 (in which the rule of termination was not applied to an agreement granting Kupat Holim a tax exemption); State of Israel v. Engineer Faber (1990) 44(iii) P.D. 769 (termination is subject to the good faith piinciple).

The rule of termination does not apply to normal commercial contracts made by public authorities, see the Additional Hearing in Maoz v. State of Israel (1977) 31(ii) P.D. 821.

42 Friedmann, D., “The Application of Public Law Obligations to a Public Authority Acting in the Private Sphere” (1974) 5 Mishpatim 598Google Scholar; Tedeschi, G., “Administrative Contracts” (1982) 12 Mishpatim 227Google Scholar; cf. R.G.M. Mart v. State of Israel (1990) 44(iv) P.D. 272, at 276 (per Bach J.: “There is no contract between the police and a diamond polishing factory obligating the police to be on the alert and to respond to an alarm sounded from the factory; at most, one may speak of cooperation with the police in this regard”).

43 For an opinion according to which public authority agreements are contracts, subject to a normative duality, see G. Shalev, supra n. 40, at 37-38; Barak, D., The Contractual Liability of Public Authorities (Tel Aviv, 1990, in Hebrew) 33–41Google Scholar (subject to exceptions, e.g. political agreements: op. cit. at 41-51).

44 One could argue that, in many cases, the parties to such agreements are not the actual holders of legal authority, but bodies aspiring to power, such as parties (operating as non-profit associations under private law), that promise to grant control of some legal authority to other parties and to limit the authority to be exercised by their elected representatives. In my opinion, this is of no significance, as in any event, we are dealing with an agreement in regard to die exercise of public authority in the present or future.

In Rubin v. Berger, supra n. 7, at 81, it was argued that agreements among the various factions were invalid in that they tended toward limiting the discretion of Bar Association officers. The court did not consider this point on the merits, noting that even if the claim proved true in the future, it was not sufficient to invalidate the agreement in the present. This, as the accepted Israeli view is that agreements that limit sovereign power are not, in and of themselves, invalid.

The court's position is unacceptable on both counts. The fact that a future obligation is concerned does not shield the agreement from judicial review (regardless of whether the agreement constitutes a contract or not). Also, the fact that a public authority agreement is not void but voidable does not make it valid. Moreover, I do not believe that the law concerning public authority agreements applies to political agreements.

The fact that political agreements often relate to the future exercise of public authority, moved Elon D.P. to establish that, in future, a prior appeal to the Attorney General will be a precondition to the court's intervention (the instant case was examined on the merits due to its being the first of its kind): Zerzevsky v. The Prime Minister, supra n. 1, at 800-802. Barak J. rejects this view. The reason being that if the agreement is invalid, its invalidity can be declared forthwith. And if the agreement limits public authority, why not hear a petition arguing the invalidity of the terms, even if it turns out that proper construction of the terms will not bring about their invalidation, but only make the exercise of power subject to the rule of termination (ibid., at 863-865).

45 Supra n. 1, at 797 (per Elon D.P.); at 838-839 (per Barak J.).

46 Ibid., at 795-796, 806-807 (per Elon D.P.); at 844-855 (per Barak J.).

47 Ibid., at 851 (per Barak J.). Such terms are liable to invalidation even in a regular public authority agreement.

48 In this regard, Barak J. asked in Zerzevsky (supra n. 1, at 850) whether there is any difference between an agreement in which the holder of authority binds himself and an agreement under which a party undertakes to ensure that the holder of authority will act in accordance with the agreement. In my view, the difference in the identity of the parties to the agreement does not effect the nature of the agreement: neither of the agreements is a contract in view of the nature of the benefit (governmental authority) of which they treat. Even if the present holder of authority is not involved, it is sufficient that the agreement comprises instructions directed at the future holder of authority. We are concerned with agreements in the field of public law, that are subject to the jurisdiction of the High Court of Justice. The question is tied to the subject of the petition's ripeness, and the need for prior appeal to the Attorney General, considered supra n. 44.

A conspicuous difference between the agreements concerns, of course, the aspect of privity. Agreements between parties do not obligate the holders of authority themselves (if they are not signatories or otherwise parties), although if an office holder does not act in accordance with the agreement, he causes his party or faction to break the agreement it signed. But, if as I believe, the agreement is not binding at all, then no cause of action lies against the party in breach, nor can action be brought against the office holder for inducing the breach of a public obligation. Cf. infra n. 53.

49 Cf. Sapir v. Eshed (1987) 41(ii) P.D. 225, at 235, in which Shamgar P. nullified a guardian's obligation to obtain the court's approval of a contract between an incompetent and another party. The obligation posed a conflict between the guardian's duty to act in the incompetent's best interest and the guardian's self-interest in seeking approval, even if the transaction were not in the incompetent's best interest, for fear of legal sanctions were he to do otherwise.

50 Supra, text at n. 37.

51 On the subsidiary status of the security to the obligation, see Weisman, J., Pledges Law, 1967 (Jerusalem, 1974, in Hebrew) 11, 48Google Scholar; cf. sec. 15 of the Pledges Law, 1967 (21 L.S.I. 44): “When the obligation ceases, the pledge shall terminate”.

52 But on the view that a political agreement is a contract (that the court must refrain from addressing), see Shalev, G., “Political Agreements”, in this issue at p. 442Google Scholar.

63 Thus it is not possible to induce the breach of a political agreement: cf. Rakover v. Armon [1988] (i) P.M. 336, where the Haifa District Court denied a claim based upon inducing the breach of a coalition agreement. It was there noted that even were the agreement enforceable, the claimant could not bring suit thereon, as he was not party to the agreement.

54 The amendment was titled: Basic Law: The Knesset (Amendment No. 12) 1991, S.H. no. 1345, pp. 90, 91. Sec. 13A was added in sec. 3(2) of the amendment.

55 Supra n. 45.

56 But for this reason as well: “And were it not for certain reservations, I would say that there was something common to the character of both”, per Elon D.P. in Zenevskyv. The Prime Minister, supra n. 1, at 797.

57 Loc. cit.

58 For a discussion of wagering contracts, see D. Friedmann and N. Cohen, supra n. 13, at 343-355.

58a 33 L.S.I. 44.

59 Friedmann and Cohen, supra n. 13, at 366. Even if the claim for restitution be based upon the Unjust Enrichment Law, the court will have discretion whether or not to order restitution under sec. 2 of the law.

60 Supra, text at nn. 27-32.

61 Supra n. 26.

62 Zerzevsky v. The Prime Minister, supra n. 1, at 797-799 (per Elon D.P.); at 838-839 (per Barak J.).

63 Ibid., at 795-796 and 806-607 (per Elon D.P.); at 844-845 (per Barak J.).

64 Rubin v. Berger, supra n. 7, at 78.

65 Regarding the normative status of plea bargains, see Arbiv v. Tel-Aviv District Attorney (1986) 40(ii) P.D. 393 (per Barak J.).

66 For criticism of the comparison, see D. Barak, supra n. 43, at 47-48.

67 Rubin v. Berger, supra n. 7, at 78.

68 Zerzevsky v. The Prime Minister, supra n. 1, at 796-797.

69 Ibid., at 845.

70 loc. cit.

71 Ibid., at 846.

72 Generally, the order will be issued by the High Court of Justice. On occasion, a declaratory order may be issued by the District Court: e.g., Kupat Holim v. The Be'er Sheva Municipality, supra n. 41 (where the court declared that the agreement exempting Kupat Holim from taxes bound the authority). The question of jurisdiction was not considered. See G. Shalev, supra n. 43, at 145 ff.

73 Miller v. The Minister of Transport, supra n. 41, at 2005; Tsouba v. The Minister of Defence, supra n. 41, at 754, 755; Bank Eretz Yisrael Brittania v. State of Israel and The Minister of Housing (1984) 38(iii) P.D. 589, at 603; Micronet Ltd. v. Ministry of Education and Culture (1991) 45(i) P.D. 45, at 55 (per Orr J.).

For a proposed revision according to which the court would be granted a discretion with regard to the quantification of damages for breach of administrative promises, see Stein, A., “Administrative Promises” (1985) 14 Mishpatim 255, at 292Google Scholar. In this matter, one may ask whether a distinction should be drawn between a public authority contract of an economic, commercial nature (e.g., an agreement regarding the exercise of governmental authority to aid in establishing an enterprise), and a public agreement (e.g., a plea bargain).

74 However, despite the court's declaration as to the breach of the agreement, the injured party will not enjoy a claim under the Contempt of Court Ordinance. Cf. Kahane v. Speaker of the Knesset (1985) 39(iv) P.D. 85, in which the court was urged to order the Speaker and his deputy to table the petitioner's two bills for discussion by the Knesset. The court made the order absolute, in the sense that it declared that the respondents were not empowered to refrain from tabling the petitioner's bills. When the bills were, nevertheless, not tabled, the court was asked to force the Speaker to do so by virtue of the Contempt of Court Ordinance, but the request was denied: Kahane v. Speaker of the Knesset (1985) 39(iv) 485. And see the explanation given by Elon D.P. in Zerzevsky v. The Prime Minister, supra n. 1, at 797-798.

75 E.g., Aloush v. State of Israel (1976) 30(ii) P.D. 382, at 388-389. This possibility was widened with the recognition of the court's power to grant temporary, declaratory relief: Yotbin v. State of Israel (1980) 34(ii) P.D. 344; Dweik v. Bachar (1981) 35(ii) P.D. 197; Maof Airways v. State of Israel (1983) 37(ii) P.D. 732 (in which a request for such relief was denied). For a discussion, see Sussman, , Civil Procedure, Levin, S., ed. (6th ed., 1990, in Hebrew) 29-30, 120, 529, 583Google Scholar.

76 Zerzevsky v. The Prime Minister, supra n. 1, at 786-788. The duty of disclosure was recognized in Shalit v. Peres (1990) 44(iii) P.D. 353, and is currently established under sec. 13B of Basic Law: The Government, as amended in sec. 3(2) of Basic Law: The Knesset (Amendment No. 12), supra n. 54. See also Nathanson v. Mayor of Holon (1992) 46(ii) P.D. 194 in which a political agreement on the municipal level was declared void for its non-disclosure.

77 For Elon D.P.'s dissent from review under this head, see Zerzevsky v. The Prime Minister, supra n. 1, at 790-795. For the unequivocal stand of Barak J. in this matter, see ibid., at 862-863.

78 It would seem that this does not mean a declaration regarding the duty of disclosure or the invalidity of the agreement, as the judge himself explains that the intention is a “[…] remedy that will be granted where the court decides upon the breach of the agreement by one of the parties”: Zerzevsky v. The Prime Minister, supra n. 1, at 798.

79 Per Barak J. in Zerzevsky v. The Prime Minister, supra n. 1, at 840-845; and see the criticism of Elon D.P. at 770-771, and Barak J.'s reply to bis critics at 857-858, 861-863.

80 The incident ended tragically some years later. The MK who refused to vacate his seat was murdered, apparently by supporters of the injured parties. Should we infer that the court must apply the principle that promises must be kept even in the political sphere?

81 In Zenevsky v. The Prime Minister, supra n. 1, at 794, Elon D.P. states: “I concur with the opinion of those who hold that a rotation agreement is not contrary to public policy”. Can we thus infer permission for monthly (or daily) rotation agreements among Knesset candidates?

82 It would seem that a comparison cannot be drawn between an agreement that creates estoppel in private law and such an agreement in public law. Cf. N. Cohen, supra n.30. In regard to estoppel in public law, see A. Stein, supra n. 73, at 292, and Abraham Rubinstein and Co. v. District Planning Commission (1991) 45(ii) P.D. 133, at 139-140 (an ultra vires promise has no effect, otherwise the government's authority would extend beyond its legal limits).

83 Elon D.P., who does not see a contradiction between such an agreement and public policy, clearly expressed the position that the court should not consider such agreements: Zerzevsky v. The Prime Minister, supra n. 1, at 794.

84 Cf. Ressler v. Minister of Defence, supra n. 3, at 496 (treating of the enlistment of yeshiva students for military service, and an attempt to force the Defence Minister to enlist such students contrary to the coalition understanding).

85 Supra n. 79.

86 Zerzevsky v. The Prime Minister, supra n. 1, at 762-776.

87 Albaz v. Minister for Religious Affairs, supra n. 11, at 610.

88 Axelrod v. Minister for Religious Affairs, supra n. 5, at 83.

89 Supra n. 6.

90 Ibid., at 267.

91 Cf. Nathanson v. Mayor of Holon, supra n. 76, in which a resignation forced on one party according to a rotation agreement was declared void due to the fact that it did not comply with the statutory requirements. Infra text at nn. 102-103.

92 As in Miller v. Minister of Transport, supra n. 41, except that there the agreement was between the government and a private individual.

93 Rubin v. Berger, supra n. 7, at 77-78.

94 Although it was argued that it was not a contract, but a declaration of intent: Rubin v. Berger, ibid., at 77. But in my view, the power to intervene is not affected by the classification of the agreement. And cf. sec. 5 of the Restriction of Trade Law, 1988, (S.H., no. 1258, p. 128) that views a course of action established or recommended by one commercial body for another, which may serve to prevent competition, as a restrictive arrangement. Also see sec. 1 that defines an “arrangement”: “… whether or not it be binding under law”.

95 As mentioned, it brought about the abrogation of the discretion of the Minister for Religious Affairs in the cases that treated of appointments to the religious council: Albaz v. Minister for Religious Affairs, supra n. 11, at 610; Axelrod v. Minister for Religious Affairs, supra n. 5, at 83. On a parallel plane, in Companies Law it was decided that an agreement between two directors requiring that one vote along with the other was contrary to public policy: Man v. Aioun (1957) 11 P.D. 1612. This conclusion of invalidity necessarily applies, a fortiori, to an agreement requiring public representatives to vote in accordance with party affiliation. It would thus have been proper for the court to have examined the matter in Rubin v. Berger on the merits, and to annul that part of the agreement to the extent that it directed to act upon external considerations. In fact, in Zerzevsky v. The Prime Minister, supra n. 1, the court already adopted a different approach.

96 Supra n. 44.

97 Rubin v. Berger, supra n. 7, at 82, although he points out that he is not considering the question of legal force of the agreements between the parties (at 81).

98 Supra, text at nn. 35-37.

99 Zerzevsky v. The Prime Minister, supra n. 1, at 805-808 (per Elon D.P.); at 846-850 (per Barak J.).

100 Goldberg J. was also on the bench in Zerzevsky v. The Prime Minister, supra n. 1. Finally the Likud Party did not comply with the agreement and the Party for the Promotion of the Zionist Idea applied to the Arbitrator, Dr. Amnon Goldenberg, who rendered his decision on 12 April 1992. The arbitrator ruled that the agreement had been unjustifiably broken by the Likud and he gave a declaration to that effect.

101 Zerzevsky v. The Prime Minister, supra n. 1, at 865-867.

102 Supra n. 76.

103 Ultimately the agreement itself was declared void due to its non-disclosure: supra n. 76.