- Supreme Court of Israel sitting as Court of Appeal
Civil Appeal 294/91 (P.D. 46(2) 464)
Hevra Kadisha [Burial Society] of the Jerusalem Community v. Lionel Aryeh Kastenbaum
- 30 April 1992
- Translated by:
- Yuval Abrams
- Professor Basil Markesinis
Shamgar, P., Elon, D.P., and Barak, J.
Facts of the case (taken from the editor’s synopsis)
The respondent, through his brother, approached the appellant to arrange hiswife’s (‘the deceased’) funeral ceremony. The respondent’s brothersigned a ‘burial registration and ordering form’, which included thestipulation that all arrangements are to be conducted in accordance with the regulationsof the appellant and the latter’s consequent obligations, and that the customerthereby confirms receiving the explanatory page, in which was stated, among other things,that in accordance with the aforementioned regulations the inscription on the tombstoneshall be exclusively in Hebrew letters, without numerals, pictures, or illustrations. Therespondent approached the appellant and requested permission to inscribe the name anddates of birth and death of his late wife in Latin letters and (Arabic) numbers [asopposed to the Hebrew letter numerals – Y.A.], since she had spent most of her lifein the United States, was known by her English name, and since her life was lived inaccordance with the Gregorian calendar, and the request was in accordance with her wishesand honor, and would assist many of her relatives, acquaintances, and loved ones fromabroad in uniting with her memory at the cemetery. This request was denied on Jewish legaland nationalistic grounds. This has been the policy of the appellant since itsincorporation, the appellant being a non-profit society (Hebrew –‘amuta’), the largest of the Hevra Kadishas in Jerusalem. Several of the otherHevra Kadishas allow the engraving of both the name of the deceased in Latin letters aswell as the Gregorian dates. After a particular tombstone, upon which an engraving ofGregorian dates existed (although not with the prior knowledge of the appellant), waspointed out to the appellant, it agreed to allow the engraving of the Gregorian dates onthe back of the tombstone, on condition that the dates be written in Hebrew letters andnot in numerals. Later on, during the hearings at the Supreme Court, the appellant grantedits consent to the engraving of the dates of birth and death in numerals, on conditionthat these be engraved on the back of the tombstone.
The respondent filed a petition to the District Court in request of a DeclarativeJudgment, according to which he has the right to add to the tombstone upon his wife’s grave her name in Latin letters and the dates of birth and death according to theGregorian calendar. The court ruled in his favor. Hence, the appeal before us:
Summary of Decisions (taken from the editor’s synopsis)
Shamgar, P. (opinion of the court)
The question is predominantly one of public law. In a free society there is room for various opinions, and the existence of liberty is proven by the creation of the correct balance in which we strive to allow every individual to achieve personal expression in the manner which he shall choose. This is the essence of tolerance, in that it allows a variety of opinions, liberty in argument, and freedom of conscience, so long as they pose no danger to the general public or other individuals. Individual liberty extends until the point that it abrogates law or significantly harms others; the degree of harm is measured with respect to the ‘reasonable man’, and not in accordance with subjective sentiments. Only statements that truly offend may justify removing the protective barrier and preventing a man from acting in accordance with his wishes and beliefs. In this respect, it is important to distinguish between what a man does in his own domain and what is done in the domain of others.
Every person has the right to properly respect his deceased loved ones (C.A. 280/71), in accordance with his lifestyle and tradition, so long as this does not infringe upon the legitimate feelings and interests of others. A cemetery is not only a place to bury the dead; but also a place for the expression of love and honor, that those living bestow upon the dead.
A gravestone is not a public structure, but is primarily a symbol connecting the livingwith the dead. The builder of a tombstone is not unlimited in what he can inscribe. Thecriteria for this limitation should be grounded in tolerance and reasonableness. Only ifit is certain that reasonable persons will take offense at the inscription may we insistthat his liberty to freely inscribe shall be infringed. The desire to promote the Hebrewlanguage, in itself legitimate, is not sufficient to coerce the appellant’s opinionon the respondent. In the case at hand, the appellant’s uncompromising demands arenot echoed by similar organizations across the country, so what the respondent wishes todo is not to be considered extreme or unduly harmful. Therefore, he should not beprevented from stating the Gregorian date or from writing his beloved’s name inEnglish. This does not apply to graveyards that function in accordance with special laws.
The appellant should not be viewed as a regular party to contract. The appellant isprimarily a public body, both formally as well as substantially. In this respect, it is tobe viewed in the same manner as statutory corporations, and its actions must conform tothe standards of fairness, equality, reasonableness, integrity, and good faith, and allconsequent principles of public administration. Respect for the feelings of the individualand his dignity, therefore, affects the contractual agreements between the parties and therules according to which its content shall be judged. The principles of public law applyto these contracts as a special law, overruling the general laws of contracts.
Elon, D.P. (in dissent)
The actions of the government in its relations with itscitizens are subject to the norms of public law, both when the government functions withinpublic law, as well as when it contractually engages within private law, in other words inwhat are called “voluntary contracts”. In the latter case, the government issubject to both public and private law.
In the case at hand, the appellant,a body of a dual nature, is subject to both private and public law, with considerationgiven to its unique character, which affects the relevant principles of both public andprivate law.
The appellant’s activities include a unique element ofpersonal sensitivity regarding the deceased and his beloved, but also regarding thegeneral public and its sensitivity to the dignity and nature of burial proceedings andcemeteries.
In accordance with C.A. 281/71, the body in charge ofadministrating the cemetery is authorized to supervise both the form of the engraving onthe tombstone as well as the content of the inscription, so that the external appearanceof the cemetery shall not be harmed, nor the feelings of the community that uses it.
The appellant’s decision, according to which the tombstones under itssupervision shall bear only Hebrew characters, which comes to enhance the dignity of theplace, is not unreasonable or arbitrary, nor is it nationalistic coercion. The use offoreign writing infringes upon the interests and the honor of those who are buried in thatcemetery, after having requested to be buried there, in the knowledge that theinscriptions on the tombstones would be solely in Hebrew, as well as upon those of theirfamilies. Similarly, in the case at hand, there are at least four other Hevra Kadishaorganizations in Jerusalem according to whose charter there is no requirement forexclusively Hebrew writing, although these cemeteries are primarily intended for membersof certain Jewish communities, in contrast to the cemetery in which the respondent wishesto bury his wife, in which many of the employees of the Hebrew University, where sheworked, are buried.
The notion of public policy in Sec. 30 of the Contracts(General Part) Law should be employed cautiously, especially in light of the principle offreedom of contract, which, despite being limited and not absolute, is an establishedbasic principle of our legal system. Respect for the free will of parties to a contract isa major principle of public policy, and should not be retreated from, except in rare andexceptional cases, which harm the foundations of, and impede, public order.
In the case at hand, there is no abrogation of the norms of public law as a result of theappellant’s regulation of exclusive Hebrew inscription. The regulation is good,correct, and reasonable; therefore, it does not negate public policy.
Judicial intervention with regard to a condition in a standard contract is to beundertaken in accordance with the test of ‘undue disadvantage’, which is noneother than the test of fairness and reasonableness, through which the court reads its ownsocial beliefs into the contract before it. When deciding if a condition is undulydisadvantageous, the court should pay attention to the entirety of the contractualconditions and other circumstances; additionally, it should give consideration to theunique circumstances of the matter disputed.
In the case at hand, there isno unduly disadvantageous condition; the contrary is the case. We have here a reasonableand fair condition, and, in the unique circumstances of the case, the injury to the publiccaused by annulling the condition will be far greater than that caused to the deceased, nolonger around, by not so doing.
In interpreting legislation, the court oughtto pay heed to the purpose of the legislation and the legislative history, in order toclarify the meaning of the text. This should be done, however, with great caution,especially when interpreting value-laden terms such as human dignity and liberty, that intheir very nature are overly inclusive and unclear.
In the Basic Law: HumanDignity and Liberty it was stated in clear terms that the purpose of the law is to anchorthe values of the State of Israel as a Jewish and democratic state. This dual purpose– Jewish and democratic state – is really one purpose, in which each shedslight on, and compliments, the other. With the enactment of Sec. 1 of the Basic Law, thebasic rights were officially inscribed, their protection meant to anchor the values of thestate as Jewish and democratic: values that are nourished by the values of our Jewishheritage and by the democratic values of a freedom-seeking country. The use of the Hebrewlanguage and the inscription therewith are basic to the values of the State of Israel as aJewish state.
Barak, J. (concurring with the President)[translated in full]
A dispute has arisen between my colleagues. In thisdispute, my opinion is with President Shamgar.
Like the President, I too amof the opinion that the appeal is to be dismissed, and that the condition regarding theexclusivity of Hebrew writing on the tombstone is to be annulled. My colleague, DeputyPresident Elon, situates the focus of the discussion within the scope of public law. Inhis opinion, according to the criteria of public law, the condition regarding theexclusivity of Hebrew characters is valid and binding. My colleague, Shamgar, P., alsofocuses his opinion within the scope of public law, and reaches the opposite conclusion.My opinion is, as stated, in agreement with that of the President. In my eyes, however, itis doubtful whether public law is to be the central “battlefield”. I wouldhave reached the same conclusion had the Hevra Kadisha [Burial Society] not been a publicbody at all. I shall seek to elaborate this point. Furthermore, Zeiller, P., in theDistrict Court, based his decision on the laws of standard contracts. In his opinion, thecondition requiring Hebrew inscription is an unduly disadvantageous condition. I agreewith him on this last point, and wish to explain this further. Even so, I am doubtfulwhether the standard form of the contract is the key factor. In my opinion, if thecondition regarding the exclusivity of Hebrew characters had been part of a regularcontract, not of standard form, it would still have had to be annulled on the grounds ofpublic policy. I shall begin with an analysis of the case according to public law and anexplanation of my position that supports that of Shamgar, P. I shall then proceed toanalyze the case in accordance with the Standard Contracts Law of 1982, whilstestablishing my own position, which accepts the decision of Zeiller, P. I shall concludeby analyzing the case in accordance with the principles of public policy.
1. My colleague, Elon, J., places the Hevra Kadisha, in general,and the contracts it enters into to bury the dead, in particular, within the regime ofpublic law. This placement is by no means clear-cut. In C.A.280/71 Gideon v. HevraKadisha, Ezioni, J. ruled that the Hevra Kadisha “is a quasi-public body, thatfulfills public duties, despite being registered as an Ottoman association” (p. 18).He states (on p. 21) that the Hevra Kadisha “was founded in practice by virtue ofSec. 8(a) (3) of the Religious Services Law, 1949”, and that “(N)obodycontests the fact that burial services, and all that they entail, are public serviceswhich, in their importance, do not fall short of that of other services incumbent upon thestate to provide for its citizens” (ibid). Notwithstanding, the decision was basedon the Standard Contracts Law of 1982, and not on the norms of public law. Witkon, J. inC.A. 280/71 also stated that the Hevra Kadisha “fulfills a statutory role” (p.14). But he maintained that in entering into contract with a citizen, the Hevra Kadishamakes use of a standard contract; thus, the contract must be adjudicated in accordancewith the Standard Contracts Law of 1982. “The question before us”, ruledWitkon, J., “arises within the regime of private law, not public law” (ibid,p. 51). It would seem that, despite the public nature of the case, C.A. 280/71 was decidedaccording to the rules of private law, as they existed at the time. Admittedly, whenclassifying a contractual condition as unduly disadvantageous, it is appropriate toconsider the public nature of the sides to the contract. But, “the geometricallocation” of the problem in C.A. 280/71 is within the regime of private law. Witkon,J. saw this framework as “the Procrustean bed of the consumer-supplierrelationship” (p. 17). Ezioni, J., on the other hand, maintained that the issuecould be salvaged from this Procrustean bed by means of the rules of private law, whichdeal with annulling contracts that contradict public policy, and the laws of undulydisadvantageous conditions in standard contracts.
2. Indeed, the HevraKadisha is a unique “hybrid”, or, in the eloquent terminology of my colleague,Elon, J., it is a “dual-natured body”. As my colleague has stated, the HevraKadisha was established by private law. It was an Ottoman association in the past, andtoday it is an ‘amuta’ [non-profit society]. It is as if the (standard)contracts, which it engages in, are done by a separate legal entity in private law. Whatis the public aspect of the Hevra Kadisha that justifies applying the rules of public lawto its practices? It is neither sufficient that the service that it provides is to thegeneral public nor that it is non-profitable. There are many non-profit societies thatgrant services to the general public, and every non-profit society, by definition, isincorporated “for a lawful purpose not aimed at the distribution of profits to itsmembers” (sec. 1 of the ‘Amutot’ Law). It is inconceivable to claim thatpublic law – which views public bodies as trustees of the general public (see H.C.142/79 Shapiro v. District Council of the Jerusalem Bar Association) – is to beapplied to every body that serves the general public without intention of profit. Are theassociations serving the elderly or the poor subject to public law? Indeed, theapplication of public law to a body that was incorporated in accordance with public lawrequires the meeting of additional criteria, beyond the performance of functions of publicinterest. The essential nature of these criteria is not easily determined. This willrequire great caution. In other states, in which this problem arose, this question was noteasily answered (see J. Beatson, “‘Public’ and ‘Private’ inAdministrative Law”, Law Q. Rev. (1987) 34; L. Brown and J.F. Garner, FrenchAdministrative Law (London, 3rd. ed., 1983) 79). For our purposes, we can determine thatif a particular body has been granted a statutory task, public law should be applied tothe performance of that task. Note: I shall not determine whether this is a necessarycondition. In my opinion, it is a sufficient one. Thus, for example, the Electric Companyis considered a hybrid species, among other reasons, in virtue of “its statutorymandate” (H.C. 731/86 Micro Daf v. Israel Electric Co.). For this purpose, it is notsufficient that a body operates with a license in order to transform the activities ofthat body to those that fall within the regime of public law, for otherwise “wewould reach the awkward consequence in which every individual or body that acts with apermit (such as a cab driver, a building contractor, a foreign currency exchanger, etc.)fulfills a function according to the law” (H.C. 126/84 Gilboa v. Lottery Foundation[Miphal Hapais]). Many of the statutory regulations regarding burial deal with thelicensing of burial companies and the supervision of the license holders. The PublicHealth Ordinance, 1940, states that: “No burial shall take place except in a burialground in existence as such at the date of this ordinance or duly approved in accordancewith the provisions of this ordinance (sec. 8(4)). The Jewish Religious Services BudgetLaws and, today, the Jewish Religious Services Law [Consolidated Version] authorized theMinister of Religious Affairs to enact ordinances regarding “the licensing ofsocieties for the burial of Jews”. In virtue of this authorization, the Minister ofReligious Affairs enacted the Jewish Religious Services Regulation (Societies for Burial),according to which, “burial societies must have a license, granted by theminister” (Regulation 2(a)). These regulations deal with licensing requirements, andare not sufficient to transform the license holder into a body operating within the regimeof public law.
3. Is there an additional unique aspect to the Hevra Kadishathat makes it “eligible” for the application of public law? One of theconditions for the granting of a burial license is that the Hevra Kadisha sign anagreement with the National Insurance Institute for the sake of regulating the NationalInsurance’s direct burial payments to the Hevra Kadisha, while at the same timepreventing individual payment by the consumer (National Insurance Regulations (BurialFees), 1955). This is not enough, however, to transfer the center of gravity of the HevraKadisha’s activity to the regime of public law. A progression in the direction ofpublic law can be found in the Jewish Religious Services Regulations (Burial Societies),that state (Regulation 7):
“ A burial society that has been granted alicense may commit any reasonable act necessary for the burial of a Jewish deceased; thestate and local authorities must grant it any assistance necessary.”
This grants statutory authority (“commit any reasonable act”) to the HevraKadisha. In exercising this authority, and in its other roles, the Hevra Kadisha issupervised. This supervision is carried out by the Jerusalem Jewish Cemetery Council,amongst other groups, which is established by the power of the Religious Communities(Organization) (Jerusalem Jewish Cemetery Council) Regulations. Additionally, the JewishReligious Services Regulations (Fees of Burial Societies), 1969, states that “aburial society that wishes to impose a fee for the placement of a tombstone on a grave ina cemetery in its ownership, possession, or maintenance, shall submit a written request tothe Minister of Religious Affairs to the effect that he grant permission for such acharge” (Regulation 2). Once permission is granted, the burial society may impose aservice charge. “The rate of the fee may be determined by percentages or bybrackets, in relation to the value of the tombstone or its size, or in accordance with thevarious plots in the cemetery” (Regulation 4). “The Minister may permit therequested fee as is, or modify it, and he may grant the request on any condition that hemay see fit regarding the establishment of appellate commissions and the granting ofexemptions and discounts in cases of welfare and inability to pay…”(Regulation 5). The Hevra Kadisha has governmental authority to impose charges. It appearsthat the various authorizations of the Hevra Kadisha regarding burial services suffice,when taken cumulatively, to classify the Hevra Kadisha as having crossed the boundarybetween public and private law, and that, in addition to the obligations of private law,it is possible to impose upon it obligations of public law.
The obligationsof the Hevra Kadisha according to public law
4. As a public body functioningwithin public law, the Hevra Kadisha is bound by the obligations of public law. Withinthis framework, it is incumbent upon it to act with fairness and reasonableness and as atrustee of the public interest (see H.C. 531/79 Likud Faction of Petach Tikva v. PetachTikva Municipal Council p. 571). It is prohibited from taking irrelevant considerationsinto account and from discriminating. As a body applying governmental authority, it is toact in a manner which brings about the objective underlying its authority. This objectiveis the particular purpose of the legislator and the general purpose of legislative matterin Israel. These objectives determine the basic principles of the law and government.These principles are “the basic principles of equality, liberty, and justice thatare the heritage of all enlightened and established states” (H. Cohn, J. in H.C.301/63 Streit v. The Chief Rabbi, p. 141).
5. Among the considerations whichthe Hevra Kadisha – as a public authority that provides burial services – maytake into account, is the value of the Hebrew language. I am prepared to assume that thisconsideration was one that the legislator took into account at the time that Jewish burialbodies were authorized to grant burial services. These bodies insisted on having Hebrewengraving on tombstones in the past (before the establishment of the state), and one mayassume that the particular purpose of the legislation was to enable them to continue to doso. I am also prepared to accept that this purpose is part of the objective purposeunderlying the legislation that authorized Jewish burial bodies to grant burial services.This lies in the fact that Hebrew is the national language; officially recognized as such(alongside Arabic) (see Section 82 of The Palestine Order in Council, 1922, and A.Rubinstein, The Constitutional Law of the State of Israel, Schocken, 4th ed., 1981) 87).The revival of the Hebrew language is one of the most significant accomplishments of ournational revival. It is natural, therefore, that a public authority such as the HevraKadisha, which deals with granting burial services to Jews, shall be authorized to ensureHebrew inscription on tombstones and shall be permitted to insist that the tombstonesunder its supervision give expression to that script. This is a relevant consideration,which the Hevra Kadisha, as a public authority granting burial services, is authorized toconsider. One may assume that legislation granting governmental authority to bodiesdealing with the burial of Jews also authorized those bodies to weigh the considerationsof the Hebrew language, and also authorized them – in light of their uniquespecialty – to grant national and value-based significance to the Hebrew language.Indeed, the Hebrew language is not the property of a particular group of Jews in Israel;rather it is a national asset. The place of considerations concerning the Hebrew language,within the framework of the jurisdiction of a public body granting burial service to Jews,is a natural one and may be taken for granted.
6. A further considerationthat a public body, such as the Hevra Kadish, must take into account is that of humandignity and the “beliefs and feelings of the individual…” (Landau, J. inH.C. 533/74 Ben Zeev v. National Council for the Commemoration of Soldiers, p. 306). Humandignity is a basic human right in Israel. “Every person in Israel enjoys the rightto completeness of person and protection of human dignity” (H.C. 355/78 Katlan v.Prison Services, p. 298). In the past, the basis for this right was judicial. Today, itsbasis is in the Basic Law: Human Dignity and Liberty, which grants it a uniqueconstitutional standing. The consideration of human dignity, in the context before us, istwofold. First, human dignity and the freedoms of conscience, expression, and thought ofthe deceased. It is conceivable that during his own lifetime the individual personexpressed his own will as to the writing on his tombstone – expressed in his lastwill and testament. This desire must be protected. It reflects the dignity of man, as wellas his freedom of thought, expression, and conscience in his own lifetime. The desire forappropriate burial is natural to man. Second, human dignity and the freedom of conscienceand expression of the deceased’s family. The members of the deceased’s familyhave the right and the freedom to determine that the memory of their loved one be honoredin a way that they deem worthy, and that they be granted the possibility to express theirfeelings towards him in a manner that they deem appropriate. Engraving a tombstone in thelanguage that the deceased and his family spoke is an expression of this. This was pointedout by S. Asher, J. of the District Court, in the Gideon case:
“ Civilliberties in a democratic country include, among others, the liberty to respect the memoryof one’s ancestors in an appropriately deemed manner – so long as this doesnot contradict or endanger the common good” (quoted in C.A. 280/71 Gideon v. HevraKadish, p. 14).
In a similar vein, Witkon, J. ruled in Gideon that thefamily’s right to determine the engraving on the tombstone “stems from freedomof conscience or civil liberties…” (ibid, p.15). This was well stated byEzioni, J. (ibid, p. 23):
“ Nobody disputes the fact that every man hasthe right to properly respect the memory of his loved ones that have died in a mannerbefitting their lifestyles and traditions so long as this does not harm the legitimateinterests or feelings of others. It is also clear that cemeteries are not only places tobury the dead, but also places for the living to express their love and respect for thedead.”
Indeed, human dignity, as well as the freedom of conscience,thought, and expression of the deceased in his lifetime and that of his relatives afterhis death must all be taken into account by a governmental authority when it grants burialservice. The meaning of this is to grant the request of the deceased (in his lifetime) orof his family (after his death) that the engraving on his tombstone be in the language ofhis choice. And note: Human dignity includes not only that of the respondent and hisdeceased wife; it also includes the dignity of all those buried in that burial section andtheir families. We are dealing with an individual human right, shared by all individuals.
7. Alongside considerations of Hebrew language, on the one hand, and ofhuman dignity, on the other, stands the consideration of tolerance. Indeed at thefoundational level of the existence of a democratic regime lies the value of public order:
“ The individual and the public will not be able to give expressionsto their cherished beliefs if public order is not preserved. Without order there is noliberty…” (H.C. 14/86 Laor v. Board of Censorship of Films and Plays, p. 433).
A central component of public order is the principle of tolerance:
“ The guarantee of mutual tolerance, the protection of human dignity, and theexistence of an independent judiciary, which adjudicates without external influence, arebasic values of the state” (ibid, pp. 433-434).
If every individual ina democratic society seeks to fulfill all of his desires, the fate of that society will beto be unable to fulfill even a minority of those desires. Society is naturally based uponmutual concessions and tolerance. This is the ‘mutual tolerance requisite of apluralistic society’” (Witkon, J. in H.C. 549/75 Noah Films v. Cinema FilmsReview Council, p. 764). My colleague, Elon, J. has stated:
“ This isthe doctrine of leadership and governance in Jewish tradition – that each person andgroup is tolerant of all others, in accordance with their respective opinions and worldviews. This is also the great secret of tolerance and communication, and the great powerof allowing the individual and community the ability to express themselves…”(Election Appeal 2/84 Neiman v. Central Elections Committee to the 11th Knesset, p. 296).
I, too, stated this in a different case:
“ Democraticregimes are based on tolerance … this is the tolerance of the opinions and deeds ofothers. This is also the tolerance of intolerance. In a pluralistic society, such as ourown, tolerance is a uniting force that enables our communal existence” (H.C. 390/85Kahane v. Management Committee of the Broadcast Authority, pp. 276-277).
Note: Tolerance is both an end and a means. It is a social end in itself, towards whichevery democratic society should strive; it serves as a means to balancing various socialends when these are in conflict. We shall now turn to this conflict.
8. Ihave stated the considerations that must be taken into account – in the confines ofpublic law – by the Hevra Kadisha. At times, these considerations compliment oneanother and all point in one direction. This is the case when the wishes of the deceased(during his own lifetime), the family (after the deceased has died), and the generalpublic are that the tombstone be inscribed in Hebrew only. But, at times, the variousconsiderations oppose one another. The Hevra Kadisha wishes to maintain Hebrew writingonly. The deceased (in his lifetime) and his family (after he has died) desire a differentengraving. The general public has various and opposing opinions on this matter. Thesecircumstances – so we are told – are not rare. How shall a public body, suchas the Hevra Kadisha, act in these circumstances? The answer is that, like every publicbody, the Hevra Kadisha must balance the opposing considerations and act upon thenormative framework that stems from this balancing. Indeed, the problem at hand is nodifferent from the balancing done in many cases in which values, interests, principles,and rights collide in public law:
“ More than once has it been the casethat alongside the principle lies its negation; alongside the thesis, its antithesis… the basic principles of the legal system often march in pairs, so that each pullsin its own direction …” (Election Appeal 2/84 Neiman v. Central ElectionsCommittee to the 11th Knesset, p. 308).
The solution to these conflicts doesnot lie in ignoring one principle and completely preferring another. Rather, the propermethod is to place the principles side by side, giving appropriate weight to each, andbalancing them at the point of conflict. This is a “process of placing competingvalues on a scale, and choosing those that, after the weighing process, are stronger underthe circumstances” (Agranat, J. in H.C. 73/53 “Kol Ha’am” Ltd. v.The Minister of the Interior, p. 879). Obviously, the terms ‘balancing’ and‘weight’ are metaphors:
“ Behind them stands the conceptionthat not all principles are of equal importance in the public’s eye, and thatwithout legislative guidance the courts must assess the relative social importance of thevarious principles. Just as there is no man without a shadow, so too there is no principlewithout a measurable weight. Balancing values according to weight means assessing therelative importance of the various principles to society” (H.C. 14/86 Laor v. Boardof Censorship of Films and Plays, p. 434).
9. I shall begin the legalanalysis of value-balancing with the case of the Hebrew language. This value is ofsignificance in the re-emerging State of Israel. The Hebrew language is the officiallanguage of the state. It is one of the major cultural assets of Israeli society(alongside Arabic, which is also an official language, and is a major cultural asset ofour society and the spoken language of a minority of our citizens). The struggle for theHebrew language has been a major component in the establishing of our politicalindependence. With the returns of the sons to their motherland, they “revived theHebrew language” (in the words of the Declaration of the Establishment of the Stateof Israel). With the establishment of the state, the Hebrew language began to flourish. Itseems to me, that a governmental authority, granted the authority to provide Jewish burialservices by the legislator, is authorized to insist that, on the various tombstones ofJews in Israel, the inscribed language should be Hebrew. This demand stems from the statusof the Hebrew language in Israel, and from the governmental/public authority of the HevraKadisha to grant Jewish burial services. This insistence does not infringe the humandignity of the deceased or of his family. Even a person who is not sensitive to the Hebrewlanguage need not take offence at the writing of Hebrew on the tombstone of a Jewishdeceased in Israel. And even if there are particularly sensitive people who may takeoffence at this, it is not particular and peculiar sensitivities that are to be taken intoaccount in the balancing of social values. The appropriate test is “the opinions andsensitivities of the majority or of a significant portion of the public, and not thepolarized opinions of individuals holding extreme minority opinions” (Ezioni, J. inH.C. 124/70 Shemesh v. Registrar of Companies, p. 516). Indeed, the respondent does notoppose his spouse’s tombstone’s bearing Hebrew inscription. His request issimply that, in addition to the Hebrew inscription, the tombstone also be inscribed inEnglish. In spite of this, the Hevra Kadisha has insisted that the inscription (in regardto the name of the deceased) be exclusively in Hebrew. Is the Hevra Kadisha, according tothe principles of public law, and as a body functioning in accordance with the law,entitled to insist on the exclusivity of Hebrew characters on the tombstone of a Jew?
10. Answering this question requires finding the appropriate balance between thepublic value of the Hebrew language and that of human dignity (i.e. of the deceased andhis relatives). This balancing is required, since the insistence on the exclusivity ofHebrew on the tombstone of a Jew who does not want it involves a significant infringementof that person’s human dignity. This is not the sensitivity of a peculiar,exceptional Jew. “The ordinary person”, who is not of unique sensitivity, isgreatly harmed if he cannot determine that, on his or his loved one’s, tombstone,the inscription shall be in a language deemed appropriate and in a manner that properlypreserves the memory of his loved ones. Human dignity is not simply the dignity of man inhis own lifetime. It is also the dignity of man after his death, and the dignity of hisloved ones, who preserve his memory in their hearts. This dignity is expressed, amongother ways, in the very placement of a tombstone, in the visits of his loved ones to thecemetery, in memorial days, in public ceremonies, and in the upkeep of the grave. This isthe connection – at times rational, at others irrational – between the livingand the dead, which helps mold our humanity and gives expression to our deepest inneryearnings. This is the “hand” that those living extend to the dead. This isthe external expression of the inner bond between generations. The recognition of humandignity requires granting man the freedom to determine the inscription on his tombstone inaccordance with his desire. The negating of this freedom, and the subsequent requiring ofexclusively Hebrew inscriptions, is to infringe, severely and significantly, the basicvalue of human dignity. Note: The infringement of human dignity stems from negating theliberty to determine the content of the tombstone in the manner in which the deceased (inhis lifetime) and his family (after his death) wish. This infringement has nothing to dowith the Hebrew language itself. The infringement of human dignity would similarlytranspire if a non-Israeli government would insist that the inscription on a Jewishdeceased’s tombstone not be in Hebrew, or if any government would set strict rulesregarding the layout of tombstones. Here, too, we must remember that human dignityincludes that of all those buried in cemeteries and their families. The government in ademocratic state is authorized to set rules of inscription that are meant to prevent theinfringement of human dignity. Indeed, if everybody were given permission to design thetombstone as he pleased, this would be an expression of liberty, but it could potentiallyinfringe the human dignity and liberty of others. We require an “internalbalancing” between the human dignity of various individuals. Occasionally, thisrequires the governmental body to determine rules that guarantee uniformity andsimplicity. As has already been stated: “it is the uniformity and the simplicitythat give honor” (H.C. 532/74 Ben Zeev v. National Council for the Commemoration ofSoldiers, p. 308). But this uniformity and simplicity must be aimed at preserving humandignity, and not at the preservation of other values, such as the status of the Hebrewlanguage. Allowing a non-Hebrew inscription (alongside the Hebrew one) does notsignificantly infringe the human dignity of those to whose tastes such an inscription doesnot cater. It would be an infringement only to those of extraordinary sensitivity. On theother hand, requiring that inscriptions be exclusively in Hebrew significantly infringesthe human dignity of those to whom this inscription is unsuitable. This infringement isconsequent to a natural and normally sensitive individual, sensitive to his own humandignity, and that of those around him.
11. Is a public body exercisinggovernmental authority such as the Hevra Kadisha, authorized to significantly and severelyinfringe human dignity (i.e. of the deceased or his relatives) in order to promote thevalue of the Hebrew language? In my opinion, the answer to this question is in thenegative. A governmental authority in Israel lacks the power to significantly and severelyinfringe human dignity in order to promote the value of the Hebrew language. In this clashbetween the Hebrew language and human dignity, the latter prevails. Indeed, a governmentalauthority in Israel that grants burial services to the Jewish population is authorized totake the need to promote the Hebrew language into account. It is authorized to do so, evenif this involves severely and significantly prejudicing those individuals with extreme andunique sensitivities. It is not authorized to severely and significantly infringe thehuman dignity of the “normal” and “average” person in Israel. Thisconclusion is appropriate when considering the central importance of the value of humandignity in Israel. On the centrality of this basic value, there are direct legalramifications. Shamgar, J. has stated:
“… the acceptance of thislegal point of departure, that recognition of the basic freedoms is an essential part ofthe law in Israel, entails the conclusion that the basic freedoms are part of the law, asper their name and their purposes, that is to say, as basic rules that guide and givestructure to forms of thought and legal interpretation and influence them by their spiritand direction” (Further Hearing 9/77 Israel Electric Co. v. Haaretz NewspaperPublications, p. 359; English – Selected Judgments of the Supreme Court of Israel,Vol. IX 1977-1990 (Israel Bar Publishing House, 1995) p. 322).
Indeed, thecentrality of the values of human dignity and liberty is not simply a matter of rhetoric.It is translated into legal language in the positivistic conception that human hignitybreeds rights and obligations, determines authority and powers, and affects theinterpretation of every piece of legislation. Human dignity in Israel is not simply ametaphor. It is a normative reality, which warrants operative conclusions. In our case,the warranted conclusion is that the general authorization of governmental authorities toconduct specific tasks, such as the maintenance of a cemetery, is not to be interpreted asenabling those authorities to, severely and significantly, infringe the human dignity ofthose affected by their actions. A governmental authority that wishes to infringe humandignity must get a clear and specific mandate to do so from the legislator, and ever sincethe enactment of Basic Law: Human Dignity and Liberty, this mandate must be anchored in alaw that is “befitting the values of the State of Israel, enacted for a properpurpose, and to an extent no greater than is required” (section 8). This basicconception, the requirement of a specific and clear legislative authorization, is not newto us. It has been generally accepted for quite some time that a governmental authority isnot authorized to infringe basic human rights without a specific and clear mandate (seeH.C. 337/81 Miterani v. Minister of Transportation). Today, there is an additionalrequirement for such a law. Indeed, human dignity is among the basic human rights. Amongstthem, it is the most central and basic, from which we derive many of the other rights.This leads me to my interpretive conclusion, warranted even before the enactment of theBasic Law, that the general governmental mandate, such as the mandate of the Hevra Kadishato reasonably manage the Jewish cemeteries, does not include the mandate to severely andsignificantly infringe the human dignity of the deceased or of his family. The mandate toreasonably run a cemetery enables the Hevra Kadisha to set rules about uniformity andsimplicity. It does not include the mandate to dictate the inscriptions and to determinein what language a man’s name may be written on his tombstone.
12. Mycolleague, Elon, D.P. repeatedly asks in his decision: Is the consideration of Hebrewinscription an unreasonable one? “Is it not reasonable that in a cemetery, in whicha unique level of respect is required, only Hebrew be used on the tombstones, in order topromote dignity and uniformity for the sake of all those who lie in that cemetery?(paragraph 15).
My response to this question is: “reasonableness”should be taken to mean the proper balancing between competing values (see H.C. 935/89Ganor v. Attorney General). The exclusive use of the Hebrew language promotes the dignityof those who see that language as an expression of their personality. On the other hand,forcing the Hebrew language onto a tombstone of an individual, who opposes it in hislifetime (or his family’s doing so after his death), is an infringement of hisdignity. Therefore, in the general balancing between the competing values, insistence onthe exclusivity of Hebrew is unreasonable. My colleague goes on to ask: The founders ofthe Hevra Kadisha “desired that with the early sparks of Jewish independence, in1937, they should bring about the ‘linguistic uniformity of the Holy Tongue’in the cemetery”. “Is this desire inappropriate, then or today?” Myanswer to this question is that there is no fault in such a desire at all. Thepreservation of the Hebrew language, its development and its progress are important socialvalues in Israel. But alongside this important wish regarding the Hebrew language standsanother important desire, namely, human dignity in Israel. When these two desires areirreconcilable, we must decide between them. In this determination, human dignity mustprevail. Note: This determination does not, in any way, render inappropriate the desire topromote the Hebrew language. The value of the Hebrew language stands firm in our legalsystem. In certain circumstances, it shall prevail; in other circumstances, other valuesshall prevail. Indeed, such is the nature of values, which (as opposed to rules) continueto stand firm and radiate from their inner essence, even if they collide with othervalues. Indeed, I am not at all of the opinion that the value of the Hebrew language isunreasonable or inappropriate; on the contrary, the value of the Hebrew language is one ofthe basic principles of our legal system. I am of the opinion that, in circumstances inwhich this value clashes head on with human dignity, the value of human dignity mustprevail, unless legislation can be pointed to that determines a clear and explicit mandatefor the governmental authority to infringe human dignity. There is no such mandate in thecase at hand.
The Standard Contracts Law of 1982
13. TheDistrict Court decided the case before us according to private law. The entire discussionfocused on the Standard Contracts Law of 1982. The District Court’s opinion on thismatter seems appropriate to me, and I would like to further elaborate this point. The lawdetermines that a court is authorized to annul or vary a condition of a standard contractthat is, when taken in context, of a nature that “involves an undue disadvantage tocustomers or an unfair advantage to the supplier, likely to lead to a deprivation ofcustomers” (sec. 3 and 19). The law applied to “standard contracts”, inother words, “the text of a contract all or part of the conditions of which havebeen determined in advance by one party in order to serve as conditions of many contractsbetween him and persons undefined as number or identity” (sec. 2). The applicationof this law is not limited to commercial contracts. It covers the entirety of standardcontracts, whatever their content may be. Similarly, the law’s applicability is notlimited to goods or services. The law applies to every contract that meets the definitionof “standard”. The terms “supplier” and “customer” aredefined in the law. A “supplier” is one who “proposes that an engagementwith him shall be in accordance with a standard contract, irrespective of whether he isthe giver or the recipient of anything” (sec. 2). A “customer” is one“to whom a supplier proposes that an engagement between them shall be in accordancewith a standard contract, irrespective of whether he is the giver or the recipient ofanything” (ibid). According to these definitions, there is no doubt that a standardcontract existed between the Hevra Kadisha and the respondent. The contract is of standardform, since its terms – including the term requiring Hebrew characters on thetombstone – are determined in advance by the Hevra Kadisha in order to serve as theterms for multiple contracts between the Hevra Kadisha and all those who wish to be buriedor to bury their loved ones in a plot held by the Hevra Kadisha. Indeed, in this matter,it is accepted by all parties that we are dealing with a standard contract; the onlyquestion that stands before us is whether the term requiring the exclusivity of Hebrewcharacters is an “unduly disadvantageous condition”.
14. Acondition in a standard contract that involves an “undue disadvantage” to thecustomer, or that grants an unfair advantage to the supplier, likely to lead to adeprivation of customers, shall be annulled by the courts (sec. 3). What is this “undue disadvantage”? This vague term reflects a negative social evaluation, whoselegal content is to be determined in accordance with the legal norm underlying its usage(compare: Z. Cohen, Company Shareholders – Rights of Action and Remedies (Israel BarAssociation, 1991) 302; J. Gross, Directors and Officers in the Company (Israel BusinessResearch Institute, Tel Aviv University, 1988) 406 with regard to the term “unduedisadvantage” in sec. 235 of the Companies Ordinance of 1983). It seems to me thatthe purpose of the Standard Contracts Law of 1982 – as the subject matter which itdeals with indicates – is to prevent unfairness in contractual relations, whichstems from the fact that one party to the contract determines its conditions in multiplecontracts, and allows neither appropriate negotiations nor the customer to express hiswill. Ben Porat, J. raised this point in stating that the test for “unduedisadvantage” is one of “reasonableness and fairness” (C.A. 754/76Shimoni v. Ashdod Auto Factories Inc., 122). A condition is “undulydisadvantageous” if it protects the interests (economic or otherwise) of thesupplier beyond what is considered appropriate in this type of contractual engagement. Acondition is not “unduly disadvantageous” if it “protects the legitimateand reasonable interest of the supplier” (Ben Porat, J. in C.A. 754/76 ibid., p.123). The lack of fairness in the unduly disadvantageous condition lies in the excessiveprotection granted to the supplier, compared to that of the customer “who findshimself in an inferior position…” (Witkon, J. in C.A. 285/73 LegilleTrampoline and Sports Equipment v. Nehemias, p. 78). Indeed, the “unduedisadvantage” that the Standard Contracts Law prohibits is a disadvantage that stemsfrom the inequality in the balance of power between the two parties (see S. Deutsch“Conservativism in the Interpretation of the Standard Contracts Law of 1964”,Hapraklit 32 (1978-80) 27, at 30), and which was created “mainly on the basis of theunequal relations between the supplier and his customer, which create a quasi-dependenceor lack of alternative in the customer’s need for the supplier” (Shamgar, J.in Shimoni, p. 119). Underlying the “undue disadvantage” is the desire toprevent an excessive preponderance by the supplier, in other words the protection of hisinterests to an extent beyond that which is deemed appropriate, especially in a contractin which he has stipulated the terms. We are faced with “unfair advantage throughdictating the terms” (Shamgar, J. in S.C.A. 1/79 Keshet Dry Cleaning v. The AttorneyGeneral, p. 374). This advantage is determined on the basis of the general picture of theentire contract, and against the background of the entirety of the rights and duties settherein. The court’s vantage point is not that of the general public of customers,but rather that of a single, anonymous customer – who stands, so to speak, behind aRawlsian Veil of Ignorance (see J. Rawls, A Theory of Justice, (Cambridge, 1971)) –and finds himself faced with a condition in the contract, which unduly disadvantages him.“The litmus test for measuring a circumstance for undue disadvantage does not lie inconsidering specifically whether the general public of customers’ rights areinfringed or only those of a specific customer. Rather, the litmus test is general andobjective: it asks whether a potential risk has been created towards the customer, suchthat he finds himself, as a result of the limiting condition, in circumstances that thecourt deem unduly disadvantageous…” (Shamgar, J. in Shimoni, 120).
15. The standard for an unduly disadvantageous condition is not clear. It does not pointto, either itself or from its general purpose, an unequivocal notion as to the breadth ofits scope. Naturally, there is wide judicial discretion as to the essence of unduedisadvantage. “The test in its entirety is general and vague, and leaves much roomfor discretion on the part of the court ” (Y. Cohen, J. in S.C.A. 1/79 Keshet DryCleaners v. The Attorney General, p. 369). Indeed, in using the term “unduedisadvantage”, the legislator has delegated to the courts the task of molding anormative content based on that which is perceived by the Israeli public as unfairbehavior at a given time. This is a legislative mandate for judicial legislation. Thecourt must determine – in accordance with its understanding of the nature of theengagement between the parties on the one hand, and that of the values of Israeli societyon the other – if the engagement is fair or if it overly protects the interests ofthe supplier. The test is multi-faceted: on one level, the relations of the parties andtheir typical interests; on the other, our legal system’s notion of what is fair andreasonable in certain types of relations. Shamgar, J. has pointed this out in stating inthe Shimoni case (p. 120):
“ The undue disadvantage, i.e., theessential infringement of the rights of the customer, is measured according to moral andsocial criteria …”
In another instance, he pointed out that the“guiding consideration when deciding to annul an unfairness or manipulation is amoral or social one” (S.C.A. 1/79 Keshet Dry Cleaning, p. 374). Indeed, determiningthat there is an undue disadvantage reflects the appropriate balance that Israeli societywishes to create between economic, moral, and social considerations. It is not the resultof one particular set of economic beliefs. “The unduly disadvantageouscondition” does not express one economic vision or another, it expresses a socialoutlook as to what is fair and proper in the relations of standard contracts (see S.C.A.1/79 Keshet Dry Cleaning, ibid.). Therefore, there is room for considerations of “undue disadvantage” in any type of “market”. Its existence is notcontingent upon monopolistic relations between the supplier and customer:
“ The test is not whether the specific purchaser had to depend on the good servicesof a specific supplier. Were we to require that, we would almost have limited the scope ofthe section to monopolies, an interpretation that would have greatly undermined the intentof the legislator…” (Ben Porat, J. in Shimoni, p. 122).
Similarly, the existence of “undue disadvantage” is not contingent upon aspecific type of condition (for example, exemption from liability in the case of physicalharm). It applies to every condition in a standard contract, whatever its content may be.Therefore, the principle of “undue disadvantage” was applied in a standardcontract whose condition was observing the Sabbath (see: P. (Jerusalem) 545/67), or wherethe condition concerned the exclusive use of Hebrew letters on a tombstone (C.A. 280/71Gideon v. Hevra Kadisha), or conditions that regulate the relations between soccer teamsand their players (C.A. 825/88 Israeli Soccer Players Association v. Israeli SoccerUnion). Is the condition requiring exclusive use of Hebrew characters in engraving thedeceased’s name one of undue disadvantage?
16. My answer to thisquestion, in the wake of Zeiler, P.’s decision in the District Court, is in theaffirmative. The warranted conclusion, from the entirety of the circumstances, is that theconstitutional rights of the respondent’s wife (in her lifetime) and those of therespondent have been infringed. Within this framework, we must take into account, amongother things, the fact that the standard condition requiring the exclusive use of Hebrewwas imposed upon the respondent after his wife’s death, at a time in which he wasnot enable to consider the content of the condition or to examine the option to approachan alternative Hevra Kadisha. It is doubtful whether such a real alternative exists,considering the lifestyle of the respondent and his deceased wife. Zeiler, P. pointed thisout in his decision:
“… the respondent [in the District Court,i.e., Hevra Kadisha] cannot claim in good faith that the family of the deceased could haveburied her in a plot maintained by another Hevra Kadisha. A Hevra Kadisha that claims tobe ‘general-zionist’ ought not be surprised when clientele of that persuasionturn to it and maintain their right not to be unduly disadvantaged. All these factors areof subsidiary significance when considering the pressing, unfortunate, and emotionalcircumstances in which the customer finds himself at the difficult hour of arranging afuneral. It should be remembered that we are dealing with arrangements made on the day ofthe loved one’s death. This is a pressing time. The deceased must be buried and itcan be assumed that grief and pain enshroud all of the relatives dealing with the burial.In such circumstances, one is not emotionally able to haggle over a particular undulydisadvantageous condition or to research the particular policies of a specific HevraKadisha. If there are ever circumstances pressing enough to induce the courts to asserttheir authority and to annul or modify an unduly disadvantageous condition, these are suchcircumstances…We are dealing with a case of unequal standing between the supplierand the customer, and this due not only to the ‘power’ of the supplier inholding the largest number of plots in Jerusalem’s cemeteries, and in the content ofthese plots, such that their buried inhabitants are of the same social groups as those towhich the deceased and her family belong, but also due to the unique position in which thecustomer finds himself when his unburied dead lies before him: his mind is unsettled, andhe has not the leisure to scrutinize the details of the standard contract …”
I agree with these words. He whose deceased lies before him does not examinevarious consumer studies as to the best service provider. He is under pressure and isperplexed, pained, and of unsound mind. His mind is not at leisure to deal with ‘market research’. Furthermore, the condition regarding the exclusive use of Hebrewwriting infringes the constitutional right of human dignity (of the deceased during hisown lifetime and that of his family). This infringement is an undue disadvantage in thatit promotes the interests that the Hevra Kadisha wishes to promote – interests whichare of intrinsic value and importance, and significant social value – beyond theappropriate degree under the circumstances. These interests would have been protected tothe appropriate degree were rules set regarding the uniformity of tombstones, and inprotection of the dignity of the community of the deceased and their relatives in itsentirety. As we have seen, the rules extend beyond this, since their orientation andpurpose is the preservation of the Hebrew language and the promotion of its dignity. Theprotection of this value infringes the constitutional right of the respondent’s wife(during her own lifetime) and that of the respondent. It infringes these rights to adegree beyond which is necessary to preserve and maintain a Jewish cemetery in Israel. Thepoints that I raised in the discussion above on the perspective of public law apply hereas well, since the appropriate balance between the value of the Hebrew language and thatof human dignity – a balance, which I maintained exists in the dimension of publiclaw – is relevant here as well.
17. In the above, I have assumed that,with regard to the Standard Contracts Law of 1982, the Hevra Kadisha is a regular supplierserving regular customers in accordance with private law. On the basis of this assumption,I reached the conclusion – as did the District Court – that the conditionrequiring the exclusive use of Hebrew characters is “unduly disadvantageous”.As we have seen (supra par. 3), the Hevra Kadisha is a hybrid species, which has theessential properties of a public body. This position requires of it a higher standard thanthat which other “suppliers” in the private law are held to. If a privatesupplier is considered to be causing undue disadvantage when requiring a customer toinscribe Hebrew characters on a tombstone, all the more so a government body should be soconsidered under the same circumstances (see H.C. 262/62 Peretz v. Kfar Shmaryahu LocalCouncil p. 2115). In light of our conclusions regarding a private supplier, we have noneed to examine the extent of the undue disadvantage that the condition incurs when thesupplier is public.
18. I have elaborated on thepowers granted to the Hevra Kadisha as a body functioning within the public law. I haveanalyzed its contractual engagement from the viewpoint of the Standard Contacts Law. Itwould seem that, with this, we could sum up the legal discussion in the case at hand.Nevertheless, this analysis strikes me as incomplete. Legally and intellectually, my legaltreatment seems to be an ‘indirect attack’ on the problem, still avoiding afrontal confrontation. I have already pointed out that the Hevra Kadisha’s placementwithin the regime of public law is borderline; the center of gravity of its activitiesstrikes me as lying within the regime of private law. I believe that I would have reachedthe same conclusion, had the Hevra Kadisha been an entirely private body. Furthermore,deciding the case on the basis of the Standard Contacts Law seems to me to be arbitrary. Ihave repeatedly asked myself whether I would have changed my ruling had the contract notbeen one of standard form. The more I pondered this point, the more I came to theconclusion that the core of the legal question at hand is not that activity of the HevraKadisha that lies within the regime of public law, nor is it the unduly disadvantageousnature of its standard contract. The core of the problem is in the application of theprinciples of public law – such as the value of the Hebrew language, human dignity,and tolerance – within the realm of private law. For this purpose, I am prepared toassume that the Hevra Kadisha is a private body and that the contract entered into was notof standard form. Would this contract, which includes a condition of demanding theexclusive use of Hebrew characters, be valid?
19. The presentation of thequestion in this light arouses a complex set of difficult problems. In their center liesthe question regarding the relation between the fundamental principles of public law andcontracts signed in private law. Such that, for example, when Israeli public law protectshuman dignity and liberty (see Basic Law: Human Dignity and Liberty) – how does thisprovision affect persons entering contracts within the regime of private law? Similarly,public law protects freedom of occupation (see Basic Law: Freedom of Occupation). What isthe power of this law regarding contracts that persons enter into within the regime ofprivate law? Obviously, the provisions of public law are intended for the governmentalauthorities – the legislative branch, the executive branch, and other authorities.But are these provisions also intended to govern the mutual relations of individuals, andif so, in accordance with what legal concepts?
20. It should seem clear andobvious that the basic principles of the legal system in general, and basic human rightsin particular, are not limited to public law. The distinction between private and publiclaw is not so sharp. A legal system is not a confederation of legal fields; rather it is aunification of system and law. Indeed, the basic principles are basic to the entiresystem, and not to the public law alone. Basic human rights are not intended to protectthe individual from the government only; they envelop the mutual relations betweenindividuals as well. Is it conceivable that two individuals can enter into a contract inIsrael in order to make one party the slave of the other? Indeed, the true question is notwhether the basic principles of public law apply within private law. The answer to thisquestion is clear and simple: Yes. The true questions concern how these basic principlesof public law flow into the confines of private law, and what are the conduits throughwhich these principles are transferred to the behavior of an individual in hisinteractions with others. Here, too, it would seem that there is no dispute that the rulesof public law find their expression within the regime of private law in the guise ofvarious rules of interpretation enacted on legal transactions within the private sphere.For example, wills and contracts are to be interpreted according to a presumption ofequality. If, according to one possible interpretation, the contract is lawful andaccording to another it is unlawful, we choose the interpretation that grants the contracta meaning consistent with the law (see section 25(b) of the Contracts (General Part) Law).The interpretive conduit is important, but obviously does not suffice to link public andprivate law. Are there other links?
21. This question can be answered in theaffirmative. Private law includes a number of doctrines that function as vessels throughwhich the basic principles of the system in general, and basic human rights in particular,can flow into private law. Central to these vessels are the principles of good faith (sec.12 and 39 of the Contracts (General Part) Law) and public policy (section 30 of theContracts (General Part) Law) on the one hand, and the torts of negligence (sec. 36 of theCivil Wrongs Ordinance [New Version]) and breach of statutory duty (sec. 63 of the CivilWrongs Ordinance [New Version]) on the other. The question remains whether the flowing ofthe principles of public law into private law is to be done exclusively by means of thetools provided by private law (“intermediate flowing”, “indirectapplication”) or whether the flowing can be direct, without the need to do bechanneled through the doctrines of private law (“non-mediated flowing”,“direct application”). The answer to this question is controversial incomparative law (see H. Mangolt and F. Klein, Das Bonner Grundgesetz (Band I) 131). Thegist of the argument concerns the principle of equality, and the degree of its directapplication when one individual refuses to enter into a contract with another, and theclaim is that, in doing so, he is discriminating against the other. We have no need toexamine this problem; since, for our purposes, indirect application and the intermediateflowing of the principles of public law to private law, by means of the principle ofpublic policy, will suffice. We shall now turn to this point.
22. Section 30of the Contracts (General Part) Law states:
“ A contract, the making,content or object of which is or are illegal, immoral or contrary to public policy, isvoid.”
This provision, and primarily the determination that a contractcontrary to public policy is void, channels the basic principles of law in general, andbasic human rights in particular, into private law (see K. Larenz, Allgemeiner Teil desDeutschen Burglicher Rechts (1983) 79). Sec. 30 of the Contracts (General Part) Law is aprimary legal tool – alongside other principles, such as good faith – throughwhich the general harmony of the legal system is secured. This is the general toolrepresenting the foundations of the social order (Shamgar, P. in C.A. 661/88 Himov v.Hamid). The principle according to which a contract contrary to public policy is voidbrings the basic principles of public law into private law. By this means, the legalsystem ensures that a minimal level of proper conduct is maintained in the realm ofprivate law. With the aid of this tool, society determines the appropriate behavior ofindividuals in contractual relations. This was maintained by Shamgar, P. in C.A. 614/76,p. 93:
“ The theoretical basis underlying the very principles accordingto which we may examine the validity of contracts by the criteria of public policyconsists of the belief that belonging to a social group or to a defined category of peoplecan occasionally involve obligations of such a gravity, and that are so determinate from asocial and public standpoint, that we cannot consent to a member of that group releasinghimself from the burden of such an obligation by means of a simple contractualengagement.”
Consider: In the importing of basic legal principles ingeneral, and basic human rights in particular, from the regime of public law to that ofprivate law, these principles undergo a change. The obligation of the government to defendhuman rights is not equal in content to the obligation imposed on individuals. Obviously,the government’s obligations are stricter, and the protection of human rights fromviolation by government is more extensive. Nevertheless, every individual is also obligedto respect the human rights of others. Indeed, the obligation of an individual to respecthis neighbor’s rights stems from the same source as that of the government’sobligation – the basic social conceptions and the basic legal principles upon whichthe legal system is built. Therefore, not only the government is obliged to respect thehuman right of freedom of occupation, but employers, too, must respect the freedom ofoccupation of their employees. Hence, the notion that an unreasonable restriction offreedom of occupation is opposed to public policy (see C.A. 566/77 Deaker v. Moch).Similarly, not only the government is obligated to respect the human right of freedom ofexpression, but those engaged in contracts must also respect this right. Therefore, acondition in a contract was annulled when it stated that a newspaper would take uponitself not to publish certain information (see Neville v. Dominion of Canada News CompanyLimited (1915) at 556). So, too, not only is the government obligated to respect the humanrights of dignity and liberty, but so, too, is every individual in his private dealingswith others. Therefore, a contract of slavery is void. Similarly, a contract deprivingsomeone of his freedom of conscience or religion, or a contract that leaves him in aposition of dependency, that negates his personal autonomy, is void as well. This is thelaw with a loan contract, in which the lender undertakes to refrain from specifictransactions, including transfer of property, taking loans, and other economic activities(see Horwood v. Miller’s Timber and Trading Company Limited (1917), at 31).
23. The term “public policy” is vague. No precise meaning can beinferred from the term itself, nor from an interpretation based on its objective. Such aswith other conduit concepts, so, too, with public policy the courts must determine itscontent in every given society and time. Indeed, “its implementation and enforcementare given over to the discretion of the courts” (C.A. 614/76, p. 93). Thisdiscretion is not, however, to be exercised arbitrarily. In this, the courts do not givevoice to their own subjective opinions. The court must give expression to the basicconceptions of the society in which it functions. Landau, J. stated this in his landmarkdecision:
“ This does not mean that the courts may intervene incontractual relations at their discretion, according to the private beliefs of the judgeon what is good and the beneficial, rather, that the judge is to be a loyal interpreter ofthe beliefs of the enlightened community, in the midst of whom he sits, on thesematters” (C.A. 461/62 Zim v. Maziar, p. 1335).
“ The beliefs ofthe enlightened community” express the conscience of the general community and theconvictions of society about the appropriate behavior of individuals in contractualrelations. This persuasion derives its vitality from society’s basic documents– the Basic Laws and the Declaration of Establishment of the State – and fromits principles, as they are expressed in legislation and in court decisions throughout itshistory.
24. The content of the term “public policy” in sec. 30of the Contracts (General Part) Law varies with time. “At its very essence, it is aflexible concept, different in various legal systems, according to time andplace…” (Shamgar, P. in C.A. 661/88 Himov v. Hamid, p. 84). The principle of“public policy” expresses the basic conceptions of the system, and these varywith the general changes that occur in a nation and state (see Wright, “PublicPolicy” Legal Essays and Addresses, (1939), p. 87). On these changes in publicpolicy Professor Winfield has stated:
“ Public policy is necessarilyvariable. It may be variable not only from one century to another, not only from onegeneration to another, but even in the same generation. Further, it may vary not merelywith respect to the particular topics which may be included in it, but also with respectto the rules relating to any one particular topic” (P.H. Winfield, Public Policy inthe English Common Law, 42 Harv. L. Rev. (1928-29) 76, 93-94).
Furthermore,there are no predefined categories of “public policy”. The categories of“public policy” are open-ended. “public policy is not a closed book thatcannot be amended” (G. Shalev, Laws of Contracts, p. 381). Indeed, just as the basicprinciples of a legal system and basic human rights are always in a state of flux, so toois public policy, which is supposed to reflect these principles, in a state of flux.“It goes without saying that conceptions such as this vary with time and constantlyexpress the beliefs and principles of the given period …the courts add to thevariety of cases in which the principle is applied, or even detract from it, all inaccordance with the implementation of the general principle” (Shamgar, J. in C.A.614/76, p. 84).
25. The basic principles of a society, in general, and basichuman rights in particular, do not mechanically constitute “public policy”. Asstated (supra, paragraph 8), quite often these basic principles are at variance with oneanother. One person’s human rights can infringe upon those of another. Oneperson’s freedom of occupation can infringe upon another’s freedom ofcontract. One person’s freedom of expression can infringe upon another’sdignity. This is particularly acute when dealing with “public policy” incontracts, since one of the basic principles of our legal system is freedom of contract(see Further Hearing 22/82 Beth Yules v. Raviv), and one of the basic human rights thatmust be taken into consideration is the autonomy of private will. This is part and parcelof human dignity and liberty. Entering into contract is an expression of this autonomy.Freedom of contract is a constitutional right. When the content of a contract infringesupon the freedom of occupation, human dignity, freedom of movement, freedom of conscienceand religion, or freedom of expression, we cannot determine “public policy”simply as the enforcement of these principles; rather we must balance the conflictingprinciples. Only when the weight of freedom of contract and autonomy of the private willis less than that of the conflicting principle can we justifiably annul a contractualterm, or an entire contract, on the grounds of opposition to public policy (seeRestatement, Second, Contracts, §178). This point was expressed by ProfessorFarnsworth:
“ In doubtful cases, however, the court’s decisionmust rest on a delicate balancing of factors for and against enforcement of the particularagreement. Enforcement should not be refused unless the potential benefit in deterringmisconduct or avoiding an inappropriate use of the judicial process outweighs the factorsfavoring enforceability” (E.A. Farnsworth, Contracts (Boston and Toronto, vol. 2,1990) 5).
Indeed, just as freedom of contract is not absolute, neither areother human rights expressions of absolute values. We are dealing relative constitutionalrights. From their very nature, they may conflict and negate one another. A balancing andweighing procedure must be undertaken. I have stated the need for this in the past:
“ Freedom of contract is not absolute. As any other basic constitutionalright, it is relative. It is to be balanced against other freedoms and interests worthy ofprotection. Fairness, integrity, good behavior, equality – all of these are worthyinterests that may counterbalance freedom of contract, under the appropriatecircumstances” (Further Hearing 22/82 Beth Yules v. Raviv, p. 486).
Most legal systems have recognized the need to give weight to conflicting values andprinciples, and on the need to balance them. Professor Von Mehren has expressed this asfollows:
“ The reasons for refusing enforcement on grounds of publicpolicy to promises or agreements thus derives not from considerations that relate directlyto a regime of private contracts but rather from any of the myriad of policies held bysociety with respect to public welfare. These policies need not be fixed; they reflectcurrent mores. The decision in a particular case often turns on a delicate balancing ofconsiderations based on such policies against other considerations favoring a regime ofprivate contract” (A. Von Mehren, “A General View of Contract”,International Encyclopedia of Comparative Law, vol. 7 – Contracts in General, at30).
In the same vein Professor Stone has stated:
“ Thefield of public policy, for instance in contract, should on this view serve admirably todisplay the process of conflict and compromise of interests or claims which lies behindall parts of the law” (J. Stone, Social Dimensions of Law and Justice (London, 1966)19).
Thus “public policy” is the product of the balancing ofconflicting values. Witkon, J. has stated:
“ Here, as with most legalproblems, and those of life in general, it is not the choice between good and evil thatmakes the decision difficult. The difficulty is in deciding between the variousconsiderations, all of which are good and worthy of attention, that conflict with oneanother, and to prioritize them” (C.A. 461/62 Zim v. Maziar, p. 1337).
In determining the priority of principles, we express the desired balance of theenlightened public at a given time and place. Therefore, not every term in a contract thatinfringes upon freedom of occupation is void. Only those limitations on freedom ofoccupation that are “unreasonable” are to be nullified. Lack of reasonablenessin this context means that the contractual arrangement that infringes the freedom ofoccupation is based on an infringement that exceeds that which can be derived from theappropriate balance between freedom of occupation and freedom of contract in Israelisociety. The limiting of freedom of occupation is unreasonable if it gives freedom ofcontract a weight that is too great, whilst not giving sufficient weight to freedom ofoccupation (see M. Goldberg, “The Limitation of Freedom of Occupation of a Worker byVirtue of a Contract, 5 Mechkarei Mishpat (1987) 7; E.D. Hermon, “Public Policy andthe Limitation of Freedom of Occupation in Israeli and English Court Decisions” inIsaac Cohn (Papyrus, 1989) 393). Such is the case with the conflict between other basicprinciples as well. In any given system of conflicting principles and rights, one mustweigh and balance; “public policy” will reflect the results of such a balance.This balance is similar to that carried out in public law (supra, Paragraph 9). The twoare not, however, identical. The basic difference stems from, among other things, the factthat in private law we must take freedom of contract into account and lend it significantweight. Indeed, in specified instances we allow individuals to surrender their basicrights (although not entirely). This surrendering, which is expressed in a contract,naturally affects the appropriate “balancing formula” between the differentvalues. This balance is different from that which is accepted in public law, since theinfringement of human rights there is not based on the will of the individual harmed, butrather on governmental power.
26. Israeli judges are reluctant to conductvalue-balancing in private law. They view “public policy” as a dangerousconcept, which is best not resorted to. “…the concept of ‘generalwelfare’ is like a wild horse that cannot be ridden, in that it can lead the judgeinto a dead end” (Ezioni, J. in C.A. 614/76, p. 98). This danger is rooted in thevagueness of the term “public policy”, which does not allow the definition ofpredetermined boundaries. “My reluctance to apply the principles of the generalwelfare when they are not necessary stems from the nature of such principles and from thenature of the term ‘general welfare’, which does not allow clear definitionand delineation…” (Asher, J., Ibid. p. 100). So, too, this reluctance is basedin the general discomfort of judges in exempting the fulfillment of a contractualobligation for reasons of public policy when a person has willingly taken upon himselfsuch an obligation. “The courts are not at ease when one side to an agreementrequests its disqualification on the grounds of public policy, despite his entering thatagreement without pressure, or any other illegitimate influence, and without being misled,and when he may have even benefited from this term before requesting itsdisqualification” (Ibid; See also C.A. 566/77 Deaker v. Moch, p. 148). Thisreluctance was expressed in the following words of H. Cohn, J., “Public policy isfor the expanding of freedom of contract and not for its limitation; in the protection ofthe fulfillment of promises and obligations, and not in allowing their breach” (C.A.682/74 Yekutiel v. Bergman, p. 765); and in the words of my colleague Elon, J., “public policy is primarily that the parties fulfill the obligations they undertake oftheir own clear, free will…” (C.A. 148/77 Rot v. Yeshufa, p. 638).
27. This judicial position is natural, but unjustified. It has been criticized in Israeland in Common law countries. Similarly, it has not been accepted in the Civil lawcountries (see C.A. 661/88 Himov v. Hamid, p. 85). Indeed, it is not at the judge’sdiscretion to enforce a contractual term opposed to public policy or to annul it. Theobligation to annul the term stems from “the very nature of the judge’sduty” (Witkon, J. in C.A. 461/62 Zim v. Maziar, p. 1337). Whether he upholds theterm or annuls it, the judge is implementing the principle of public policy. Thisprinciple reflects the basic conceptions of society, and the judge is not authorized toignore it. In truth, the conception of public policy is vague, and the uncertaintysurrounding it is great. There are many instances, however, in which a judge must act withvague conceptions and wide spectrums of uncertainty. This is the case in public law. Thus,for example, contemporary judges are authorized to annul a regular statute that infringesfreedom of occupation and that – regarding the nullification of that statute –was not enacted “ for a proper purpose and on grounds of the general welfare”(sec. 1 of Basic Law: Freedom of Occupation, 1992). If a judge is authorized and obligatedto determine the nature of a proper purpose and the grounds of the general welfare, wouldit not follow that he could determine what public policy is in regard to nullifying acontract? After all, a judge determines, on a daily basis, the scope of such vagueprinciples as good faith, justice, and reasonableness. These are not wild horses, not tobe ridden on, but are basic principles, vital to the desirable functioning of society,which should be applied. Justifiably, Netanyahu, J. has stated:
“ Thepanic over to which the learned judge of the Court of the Peace has been given, thatperhaps, heaven forbid, a strange and wild beast will be created, is misplaced. Legalpolicy that is properly enacted does not create wild beasts. The policy of the generalpublic has been previously termed, over a hundred and fifty years ago, as a wildhorse…and the judge applying these policy considerations was consequently termed asriding a wild horse…but the judge should ride this horse cautiously and responsibly.We ought to restrain and wisely chart out the path for this judge through the variousconsiderations he is to balance. He must do so according to his conception of the beliefs,values, and needs of the society in which he lives and functions. In this manner, heharnesses and tames the wild horse. He does not create a wild beast, rather, he solvesproblems that arise with the pace of life, and the changing values and conceptions ofsociety” (C.A. 245/81 Sultan v. Sultan, pp. 174-5).
Indeed, the courtis not protecting the interests of a particular party. It is reflecting the general publicinterest. In truth, public policy dictates that contracts be kept, but this is not theonly dictate of public policy, or even the most important. “Public policy” isa complex concept, balancing conflicting interests and values. Enforcing a contract isjust one of the considerations to be taken into account. Professors Friedman and Cohn havejustly pointed out that the position, according to which public policy legislates thatcontracts be kept, is nothing other than a play on words:
“ Publicpolicy means that freedom of contract is limited. Although Public policy requires thatcontracts be kept, this is conditional on the fact that they do not negate public policy.Both sides of the concept public policy are based on a play on words: the side asking tolimit the contract and the side asking for enforcement.” (D. Friedman and N. Cohn,Contracts, (Aviram, 1991) (Volume I), 39).
Justifiably Professor Friedman hasstated in regard to the same play on words:
“ The quoted contention[that public policy dictates the enforcement of contracts – Y.A.] does not at allassist in determining the boundaries between the wide range of cases in which publicpolicy requires the upholding of a contract and the narrower range of cases in which itrequires the disqualification of an agreement or a term. All we can say is that theintention of such a position is to emphasize that side of public policy that requiresrecognition of the freedom of contract, and to call attention away from, if not toentirely do away with, that aspect that reflects upon the boundaries of such a freedom. Assuch, this phrase belongs to the 19th Century. Indeed, it was used in that period, andreflected the thoughts of its contemporaries, which are still felt today. In the interimperiod, however, a growing awareness has developed that ‘a system that invokesindividuals to pursue their own business, regardless of the price to others, mustultimately serve the rich and powerful’… and that the concepts of justice asthey are perceived today, and the needs of contemporary society, require placingappropriate boundaries on the freedom of contract” (D. Friedman, “StandardContracts, Good Faith, and Public Policy”, 7 Iyunei Mishpat [Tel Aviv University LawReview] (1979-80) 431, at 434).
Obviously, we ought not move from one extremeto the other. Both hyper-activity and hyper-passivity are undesirable. Judicialsensitivity towards the conflicting values must be displayed, and a solution worthy of ourlegal system and basic social values must be given, in accordance with ensuring continuityand gradual development. Shamgar, J.’s words on this matter are appropriate here:
“ It is not appropriate to speak of a numerus clausus here, but one shouldalso not allow judicial creations according to personal discretion. What is required is anattentiveness to the events of the time and place, but also caution and walking ajudicious judicial path…” (C.A. 661/88 Himov v. Hamid, p. 85).
Indeed, the principle of public policy is central and important; hence the need to applyit cautiously and responsibly. We are not to be affected by fear of wild horses, rather bythe need to find an appropriate balance between freedom of contract and autonomy of thewill, on the one hand, and other constitutional values that negate them, on the other.Public policy must not become an everyday tool to annul contracts and frustrate reasonableexpectations. But neither may public policy become a dead letter. We require a middleroad, one that is cautious and balanced, which grants full validity to contracts, which isin accordance with the principles of public order and the foundations of society, andnegates the validity of contracts that do not conform to the standard of legitimacy in theeyes of the enlightened public. It can be assumed that judges – who are accustomedto this sort of process of balancing in various aspects of law – can abide by thistask.
28. Does a contractual condition requiring the exclusive use of Hebrewcharacters contradict public policy? In my opinion it does. The human dignity of thedeceased (during her own lifetime) and of her family is harmed if neither the deceased(during her lifetime) nor the family is allowed to determine the inscription on thetombstone. As we have seen, the desire to honor the deceased through the inscription onthe tombstone is human nature. This is the helping hand that those living extend to thedead, a living connection despite death. Deprivation of the possibility to enable thisdesire greatly and significantly harms human dignity. So, too, the tolerance requisite ofa democratic society is harmed. This infringement strikes me as deep and severe, and itsseverity is sufficient to override the interest of promoting the Hebrew language, as wellas the principle of freedom of contract. No individual in Israel has the liberty tosignificantly harm the human dignity of another through a contractual agreement with him.It seems to me that this conclusion is the one warranted from the “accepted beliefsof the enlightened public” in Israel. According to these beliefs, we must allow theindividual (during his lifetime) and his family (after his death) to determine accordingto his own wishes – without harming the human dignity of others – the languagein which his name shall be engraved upon his tombstone. This is a sensitive and personalexpression of the yearnings of the person’s inner soul, and a pluralistic anddemocratic society may not tolerate the deprivation of the capacity for this expression bypower of a contract. The Hebrew language is sufficiently powerful in itself to serve as amajor asset of the state, even if cemeteries allow inscriptions in other languagesalongside the Hebrew. Indeed, in a democratic society that promotes human rights, theautonomy of the deceased’s (in his lifetime) or the family’s will regardingthe manner in which his final path shall be marked by the inscription on his tombstone,should be left unhampered by external intervention, whether this be by the government orby another contractual party. I shall add that, in the circumstances before us, thesepublic policy considerations are of secondary importance for the following two reasons:First, the public or quasi-public nature of the Hevra Kadisha as a body which imposes uponit limitations which other private bodies do not have to abide by. Second, the standardform of the contract, the lack of any significant negotiation, and the severe personalcircumstances in which the contract was signed.
29. I have reached theconclusion that, according to both the ‘unduly disadvantageous condition’principle in standard contracts, as well as the principle of public policy in contracts ingeneral, the term requiring exclusive use of Hebrew characters is to be annulled. Indeed,there is nothing in the Standard Contracts Law of 1982 and in its provisions for undulydisadvantageous conditions that prevents the application of public policy to standardcontracts (see C.A. 493/69 State of Israel v. Hadad, p.10; C.A. 280/71 Gideon v. HevraKadisha; C.A. 685/81 Licenses and General Insurance v. Borcard Lines, p. 428). This isexpressed in the law itself (sec. 20), as well as in S.C.A.1/79 Keshet Dry Cleaners Ltd.v. The Attorney General. Every principle has its approach; every law its conditions. Thelaws of unduly disadvantageous conditions focus primarily on the parties and theirrespective balances of power. Fairness, and the lack thereof, are determined according tothe basic conceptions of a society, but they are considered in the light of the balance ofpower between the parties. This is not the case with public policy, which stems from thebasic principles of the legal system. It may well be the case that the parties are equalin strength and that with respect to them the terms are “fair”. The unduedisadvantage gauged, however, is towards the entire system, if such a thing may be said.Of course, within a certain range, the two principles are congruent.
Thiscongruence exists in the appeal before us. The basic conceptions of the society whichattribute undue disadvantage to the condition of the exclusive use of Hebrew charactersalso attribute the term as negating public policy.
30. My colleague, the Deputy President, Elon, J., has added, as a response to myopinion, some comments on Basic Law: Human Dignity and Liberty. Indeed, this law –and with it Basic Law: Freedom of Occupation as well as Basic Law: The Government –has brought about fundamental changes in the constitutional status of human rights inIsrael. The interpretation of these laws will greatly occupy us in the future. This is notthe place to elaborate. I request simply to give the following ‘caveat’ aswarning: My colleague the Deputy President’s position, regarding the phrase ‘Jewish Democratic State’ is by no means simple, neither in content nor in method.The topic is too weighty, important, and complicated to be dealt with as an obiter dictumto an obiter dictum to yet another obiter dictum.
For these reasons, my opinion is in concurrence with that of the President that the appeal is to be dismissed.
Decided by majority opinion, against the opinion of the Deputy President, to dismiss the appeal, as stated in the President’s decision.
Judgment given on the 27th of Nissan 5752 (30.04.1992).
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