The essence of a contract is to form an exchange of promises or an exchange of deeds. In this respect, each side has duties and each side receives benefits. The courts call this exchange "mutuality". In general, the breach of promise by one party excuses return performance.
There are essential steps without which no contractual obligations have been established. The creation of a contract valid in law is to bring to bear agencies of enforcement for the mandate of a promise and for the enjoining of a breach.
Presupposed in law is that the major failure of performance may result in rescission of the agreement, if created, and the return of the parties, if possible, to their pre-contractual status. Conditions which are unmet legally can prevent the beginning of performance, or post-contractually, excuse continued performance.
The above general rules are presumed to apply to contracts domestically, internationally, between parties entering into agreements.
I. THE OSLO AGREEMENTS DO NOT CONSTITUTE BINDING AGREEMENTS.
(A) A sine qua non of contractual formation is that the accords must advance a lawful purpose. For example, contracts to hire an assassin, or a prostitute, would fail in most jurisdictions. Were it to be proven, by factual discovery, that Oslo, effectively results in the non-viability of the Jewish State to maintain its security and Jewish nature, Oslo would be a nullity. Since these "accords" are tantamount to Articles of Surrender, i.e., arming of a defeated enemy, divestment of heights of land, undefined borders, return of perhaps one million aliens - the "agreement" is per se illegal.
COMPETENT PARTIES PRINCIPAL AND AGENT
(B) All signatories to an agreement must be legally competent.The term "competent" presumes that there are, by law, minds capable of meeting and forming binding contracts.
International Law deals with signatories who are nations, agencies of nations or duly authorized international entities. At the time of the negotiations for the Oslo terms, the State of Israel was under prohibition by its Knesset from meeting with "terrorist" organizations. The Declaration of Principles itself variously calls the "Palestinians" a "team", a "delegation", and a "side". In 1993, when the principles of Oslo were adopted, the "Palestinians" were officially "terrorists", legally disqualified from adopting agreements with the State of Israel.
In 1993, at the time of the Oslo negotiations, the delegates, so-called, were not authorized by the people or by the governing body either to negotiate or to conclude agreements with a terrorist organization. For an agent to be empowered to contract, he must have specific authority from his principal, in this case, the State of Israel. But for a few selected negotiators, the Cabinet, the Knesset and the people were intentionally deceived as to the ongoing conferences, their nature, specifics and purpose. Should it be argued that specific authority to deal was given after the fact, the approval by the Knesset was by one vote (and that purchased by the offer of a grant of power to the individual). That Knesset authorization came only after this ambiguous and complicated document was open to inspection by the Knesset for a brief few hours. To this day, copies of the official accords have not been disseminated widely, and few Israelis have a realistic understanding of what has eventuated. Consent (ratification) to be valid, must be informed consent.
(C) More problematic, however is that the source of authority for a sovereign State to enter into agreement profoundly affecting its very existence ("fundamental law") remains undefined. Should a contract creating a confrontational State be subject to binding referendum of all the people, even those disloyal to the State's existence? Should such "fundamental" legislation be validated by the vote of more than a mere majority of the Knesset? Has the Prime Minister the authority to further specific accords without specific informed consent of either the people or its governing body? Can an unelected Cabinet be free from the input or control of the voters of the State? In short, there is no stated source of authority controlling the actions of the negotiators, and it therefore follows that no contractual power was ever given to the Israeli team that constructed the Oslo accords.
(D) THE 1993 OSLO DECLARATION IS NOT BINDING UPON SUCCEEDING GOVERNMENTS ISRAEL
1) Oslo of 1993 is a statement of objectives and principles. Most vital details are left to further negotiations. Literally, the power of a sovereign to govern, has been nullified by improper delegation of powers.To what extent then, can a governing body redirect its policy, rendered nil by the mandate which the people have withdrawn? Has the abdication of sovereignty by a predecessor government, nullified the democratic right to govern by a later Prime Minister and Knesset? If so, then the democratic nature of the State has been usurped.
In law, it is axiomatic that an agreement to enter into further agreements, is not, of itself binding, for lack of a meeting of the minds of the parties on specifics.
Further, and significantly, are the Principles of Oslo I binding upon the so-called Palestinian Authority? By what authority do the "Palestinians" have legal standing? Can a State, create a sovereign State out of whole cloth? Does any article of PLO law bind the other side to the continuatiion of its promises? Since a lawful contract presupposes enforcement, where is the power to rectify breaches and violations of the Principles of Oslo? With these unanswered questions go the issue of mutuality of promises, which are the essence of valid contractual formation.
(E) NO AGREEMENT HAS BEEN FORMED IN LAW IF THE MINDS OF THE PARTIES ARE OVERBORNE BY FRAUD, DURESS, COERCION, OR UNDUE INFLUENCE
1) Duress, is essentially tantamount to force or the use of force by on party against the other. The loss, by Israel, to the "Palestinians" by the use of terror, stonings and insurrection, and the threat by them to renew the "Intifada" constitute behavior inconsistent with free and fair negotiations. Unless the accords are documents of surrender, contracts made by force or the threat of force are null and void.
2) Coercion is achieved by the application of extra-contractual pressure. The atmosphere of condemnation and vilification of Israel by international bodies and world media constituted illegal pressure which overbore the free exercise of will by the Israel negotiators and their mentors. The Arab League, the Arab Nations, the United Nations, the European Union, the United States of America, and the succession of visiting missionaries to Israel, fairly constitute international coercion upon a small State which has declared itself dependent upon foreign support.
3) Undue influence is exemplified by the law's condemnation of contracts formed where one of the parties is totally submissive to the influence of the other. The classic example would be an agreement made by a dying patient with his nurse or doctor, subject to nullification because of the inequality of bargaining power. The subjection by the United States of America of Israel by the offer of a loan guarantee of $8 billion dollars conditional upon Israel's contractual behavior would be a case in point. Israel agreed, by reason of the offer of bribe-money, to discontinue its policy of settlement of its own lands and to adopt a policy of surrender of sovereignty for a spurious counter-promise by its unreconciled enemy. The freely arrived-at contractual ability of Israel was overwhelmed by the enormity of the influence of the United States and its power to purchase foreign policy.
4) Fraud in the inception of a contract voids the agreement. Fraud is willful misrepresentation by either of the parties as to the existence or non-existence of facts surrounding the bargain. The representations by the Arabs that the covenant denying the existence of Israel and simultaneously demanding its destruction, was from the outset, false and fraudulent. Representations calling for the end of Arab terror and the apprehension of murderers by the police created by the accords, were and continue to be, false and fraudulent.
(F) LACK OF CONSIDERATION (QUID PRO QUO), ITS PATENT INEQUALITY OR THEUNCONSCIONABILITY VOID THE BARGAIN.
CONSIDERATION AND UNCONSCIONABILITY
Parties to an agreement negotiate to receive and to give, be they promises exchanged, or deeds and/or forebearances bargained-for. Contracts unsupported by lawful consideration are deemed to be non-binding. In the case of Oslo, promises made by a sovereign State to divest itself of its homeland constitutes illegal consideration, since a homeland, is inalienable. A promise made by a terrorist entity, not legally in existence is spurious at best. Promises to divest the lands of Israel for promises made in violation of the religious tenets of a people sworn to the destruction of the promisor, are unsupported by valid consideration. The inequality of such a bargain is so patent, tantamount to unconscionability. Should a bargain be so one-sided as to "shock the conscience" of the arbiter, it will not be enforced. Were the arbiter of Oslo to be the people of Israel, and not the "world" and the media, the gross disparity of "land for peace", wherein the State 9 miles wide surrenders land to the holders of millions of square miles of land.
(G) THE DOCTRINE OF LEGAL IMPOSSIBILITY OF PERFORMANCE EXCUSES THE OBLIGATION TO PERFORM.
UN resolutions 242 and 338 presume that the "territories" of Israel are "occupied." If so, it follows, according to the opinion of others, that such lands are held contrary to International Law and must be transferred to the Arabs, the rightful owners. Such assumptions are invalid. International Law does not mandate the return of lands won by a sovereign's defense against armed invasion. If such were the case, virtually every nation in the world would be forced to return lands "stolen" by aggression against indigenous people. The "palestinians" were never a people. A people give a name to a land, a land does not give a name to a people, and thus there never was a "Palestine" in all of history. It is impossible for a "no-people" to claim ownership of lands never theirs, except for a brief period in which they occupied lands seized aggressively. International Law denies title to lands conquered by invasion.
It is not irrelevant in discussing title to lands of a Jewish State, to argue that the government of Israel has bare custodial relationship to lands which Biblically are sovereign to the Creator and which are His only to give. The lack of legal title to sell, donate or surrender Holy Land renders the performance of Oslo impossible.
(H) BREACH OF CONTRACT BY EITHER PARTY EXCUSES RETURN PERFORMANCE AND MATERIAL BREACH RESULTS IN RESCISSION, DESPITE CONTRACTUAL FORMATION. BREACH & MATERIAL BREACH
Even if Oslo, despite its flawed formation, were to be considered binding upon either side, Oslo has been breached by the Arab side hundreds of times. Were the Israeli government to take legal notice of such violations, there would be no need for such fictions to fool the world, as "irreversibility" or "the agreement is binding upon successor governments."
Contractual law provides that should the essence of the bargain be breached, that is, in a material way, say, that one party promising an end to terror, fails or refuses to do so, the other party may demand and receive the return of such consideration which as been exchanged. Query, whether the Arabs having failed to amend the Charter of the nullification of its contracting party, (a material matter), could they be obligated to return the lands of Israel, i.e., Jericho, parts of Shomron and Judea and Gaza? II. EVEN WERE IT TO BE FOUND THAT THE OSLO AGREEMENTS WERE OF BINDING EFFECT, THEY ARE SUBJECT TO CONDITIONS PRECEDENT AND SUBSEQUENT, THE NON-PERFORMANCE OF WHICH CANCELS THE AGREEMENT.
(A) Naming, but deferring judgment on whether the conditions inherent in the accords are precedent to contract, or subsequent, the non-performance of such conditions ends the agreement.
CONDITIONS PRECEDENT OR SUBSEQUENT
For example, should Oslo be found to say, "When, or if, the Arabs will amend their Charter of Destruction, the agreements will begin." Or should it be determined to have stated in words or effect that "Should terrorism recommence, or should citizens of Israel be murdered at the instigation of the Arab side, the agreements will fall and be of no further effect." Insofar as possible, the parties should be returned to their pre-contractual positions.
Legal rights, i.e., rights created by contract, among others, simultaneously create legal duties, mutually. The failure to perform excuses return performance, only if objection to and demand for such performance is made. This analysis does not speak to the party that excuses breach, but only to the party who demands performance and seeks mutuality. The politics of Oslo are not here addressed, but the legality is. Should the State of Israel, rightfully refuse to continue with a policy which is flawed, unbalanced, illegal, without authority and without binding effect, this is the nature of Politics. But the law says otherwise. Should the Government of Israel insist upon obtaining the benefits it sought to achieve, via Oslo, that is, true peace, with security, it is not bound to continue with Oslo.
Herbert B. Sunshine, Attorney at Law (Ret.), Professor Of Law (Ret.), was in private practice for 35-years. Together with his wife, they moved to Israel eight years ago from Schenectady, N.Y. They live in Jerusalem and are supporters of Religious Zionist Activities. Undergraduate: Cornell University Law School: Columbia University P.O.B. 31738 - Jerusalem, Israel - 972-2- 563-9569