Civil Case (Nazereth) 48902-01-22 Ganim Ganim v. Suhail Diab

Judgment

1. This was the case: the defendant entered into an agreement with a receiver for the purchase of a real estate property that was offered for sale as part of receivership proceedings. After a little less than two years, and before the rights in the property were transferred and registered in his name, the defendant sold the property to the plaintiffs.  As part of the agreement with the plaintiffs, the defendant undertook to register the rights in the property in his name by an agreed date (which is forty days from the date of signing the agreement).  The defendant did not fulfill this undertaking, even after he was given extensions by the plaintiffs, and therefore the lawsuit that is the subject of this case was filed against him, and the plaintiffs are petitioning to charge the defendant with the payment of the agreed compensation set out in the agreement in the sum of ILS 150,000.
2. At the same time as the statement of defense was filed, the defendant sent a notice to a third party, in which he petitioned to compel the receiver to indemnify him for any compensation imposed on him, on the grounds that the receiver's negligence in the sale transaction entered into between him and the defendant led to the defendant being unable to fulfill his obligation to the plaintiffs. This is in the essence of the claim before me.

Key Facts

3. The plaintiffs are brothers who are residents of the city of Nazareth, who signed a sale agreement with the defendant on May 6, 2012, according to which they purchased from him a real estate property (plot) that is part of Plot 2 in Block 16540 of the Nazareth lands (hereinafter: the "Property" or the "Real Estate"). Of the three plaintiffs, plaintiff No.  2, Mr.  Janem Ibrahim Janim, was the one who testified in the case on behalf of the plaintiffs.
4. The defendant entered into an agreement with the receiver for the purchase of the land and about two years later entered into a sale agreement with the plaintiffs for the sale of the land. As stated, at the time the defendant undertook to sell the land to the plaintiffs, the ownership rights in the property had not yet been registered in his name.
5. The receiver, Adv. Doron Zar (hereinafter: "the Receiver"), was added to the proceeding as part of a notice to the third party filed against him by the defendant.
6. We need two factual tractates. The first is the factual relationship between the plaintiffs and the defendant; The second is the factual relationship between the defendant and the receiver.  The facts are intertwined, and it would be appropriate to review them in chronological order, jumping from one factual set to another.
7. On July 19, 2010, an agreement was signed between the receiver and the defendant, according to which the latter purchased the property (hereinafter: the "First Agreement"). There is no dispute that in the framework of this agreement, an agreed upon date was not set by which the receiver was required to register the rights in the land in the defendant's name.

The Ottoman Settlement [Old Version] 1916

8. 12-34-56-78 Chekhov v. State of Israel, P.D.  51 (2)Regarding the transfer of the rights in the property in the defendant's name, two main problems arose: first, the payment of the betterment levy.  The receiver, by virtue of his position, acted in order to return to the receivership fund the betterment levy that was paid to the Nazareth Municipality, while acting to obligate the municipality to issue a betterment levy certificate, which is necessary for the purpose of registering the rights in the defendant's name.  Second, the assessment issued by the tax authorities was high in relation to the self-assessment issued by the receiver, and therefore the receiver worked with the real estate tax authorities in order to obtain an exemption/reduction.
9. On 06/05/2012, while the difficulties in registering the rights in the defendant's name exist and he is aware of them, the sale agreement was signed between the defendant and the plaintiffs, in accordance with which the defendant sold the property to the plaintiffs (hereinafter: the "Second Agreement"). At this stage, only a warning note was written in the defendant's name.  In this agreement, the defendant undertook to register the rights in his name by June 15, 2012.  In other words, within 40 days from the date of signing the agreement (clause 3.1 of the second agreement).
10. In the second agreement, the parties determined that in the event of a breach, an agreed compensation in the amount of ILS 150,000 would be paid (clause 14 of the second agreement).
11. As I noted earlier, the defendant did not fulfill his obligation to transfer the registration of the rights in the property in his name within the date set in the second agreement, a move that was required as a first stage for the purpose of transferring the rights in the land in the name of the plaintiffs.
12. For several years after the signing of the second agreement, the defendant continued to deal with the receiver in order to complete the actions required for the transfer of the rights in the property in his name, which are mainly the restitution of the betterment levy payment, the receipt of approval from the Nazareth Municipality, and the reduction or exemption from the tax authorities. Considering that the matter did not take place, and that the date on which the defendant should have fulfilled his obligation to the plaintiffs had already passed, on September 27, 2012, the defendant's attorney at the time, Adv. Marwan Mashraki, sent a warning letter to the receiver in accordance with Rule 31 of the Bar Association Rules (Professional Ethics), 5746-1986.  On October 9, 2012, the receiver sent a fax to the defendant's attorney, stating that he had contacted the tax authorities with clarification about the assessment they had issued.
13. On February 21, 2013, the defendant's counsel filed a motion with the Writ of Execution Registrar, in which he petitioned to compel the receiver to complete the transfer of rights and to submit a detailed report regarding the receivership proceeding. About two months later, on April 24, 2013, a hearing was held in the execution proceeding, in which the parties reached agreements.  Among other things, the parties agreed that within 60 days, the receiver would act to settle the remaining debts, to the extent that they apply to him, and to provide the appropriate approvals to the defendant's attorney, while the receiver exhausted his claims before the tax authorities.  On June 26, 2013, when the receiver did not fulfill what was agreed upon in the framework of the hearing in the execution case, the defendant's attorney contacted the receiver in a complaint about it.
14. Quoted from NevoOn July 17, 2013, when the receiver did not succeed in his approach to the Nazareth Municipality, he submitted a request to the Writ of Execution Registrar in which he petitioned for the return of the betterment levy that was paid and for the municipality to issue for him the certificate that would allow the registration of the rights in the defendant's name. The Execution Registrar allowed the municipality to respond in writing, and when it did not do so, he summoned it to a hearing.  Despite this, a representative of the municipality did not appear, and for this reason, on October 17, 2013, the Execution Registrar issued an order instructing the Nazareth Municipality to return the funds and to provide the Land Registrar with the documents required for the registration of the rights in the defendant's name.
15. On March 31, 2014, a report was submitted to the Execution Registrar on behalf of the receiver. In the report, the receiver updated that he is still working with the tax authorities in order to obtain an exemption from payment.  The Receiver also updated that the Nazareth Municipality, despite the decision of the Writ of Execution Registrar, has not yet provided him with the necessary approval for the purpose of registering the rights in the defendant's name.
16. On September 29, 2015, the plaintiffs' attorney sent a warning letter to the defendant through his attorney at the time, Adv. Mishraki.
17. On October 27, 2015, the defendant's attorney informed the receiver regarding the receipt of the approval from the Nazareth Municipality, and asked him to sign deeds of sale for the purpose of transferring the rights in the land. The defendant's counsel also requested that the tax exemption be approved and that the foreclosures on the property be removed.  On October 28, 2015, the receiver provided the defendant's attorney with signed deeds of sale and a ruling approving the sale, in order to remove the foreclosures on the property.  On December 2, 2015, the receiver provided the defendant's attorney with a certificate of payment of property tax, after the receiver acted to reduce the debt.
18. On January 6, 2016, a summary report was submitted to the Registrar of Execution on behalf of the receiver. In the report, the receiver detailed the actions he performed as part of the receivership process, including:   Approval of the sale request and signing of a formal order; B.  Transfer of possession of the land to the defendant; c.  Receiving an exemption from betterment tax; d.  Receipt of a betterment levy approval from the Nazareth Municipality; e.  Transferring the approvals to the defendant's attorney for the purpose of transferring the rights in the property, etc.
19. Counsel for the defendant replied to the aforementioned report that all the necessary approvals for the registration of the rights had not been transferred, and the Writ of Execution Registrar gave a decision requiring the receiver to submit all the necessary documents within 30 days. On March 30, 2016, the defendant deposited the registration file with the Land Registry Office, which was returned to him, on June 20, 2016, for the purpose of completing details.
20. On September 7, 2016, an application for the registration of the land was again rejected on the grounds that there were foreclosures on the property that were registered after the formal order for the sale of the property was issued. The defendant submitted a request to the Writ of Execution Registrar to amend the formal order and his request was approved.
21. After all this, only on November 15, 2016, the land was registered in the defendant's name, and thus the defendant completed his obligation to the plaintiffs under the second agreement. However, this was more than a year after the day on which the defendant's attorney was served with the warning letter on behalf of the plaintiffs.

The parties' arguments in summary

22. The plaintiffs claim that the defendant breached the contract with them even after he was given many extensions, and therefore he is liable to pay the agreed compensation in the sum of ILS 150,000. On the other hand, the defendant makes a number of claims:   The claim became statute of limitations and alternatively was filed with delay; B.  The defendant's obligation in the sale agreement is an obligation to make an effort and not to oblige a result; c.  The fundamental breach clause and the compensation agreed upon in the second agreement is a sweeping clause and therefore null and void; There is room to reduce the agreed compensation because it is unreasonable in relation to the damage that the parties could have foreseen at the time of the conclusion of the contract.
23. Parallel to these claims, the defendant claims that the receiver was negligent and breached the duty of care towards him, which led to the fact that he could not fulfill the undertaking he undertook at the time, and therefore, if agreed damages are imposed on him, they should be imposed on the receiver. On the other hand, the receiver argues that the claims (both the main and the notice to the third party) are time-barred, and at least they were filed with delay; that in the circumstances of the case, there is no concrete duty of care between him and the defendant because in the first agreement it was agreed that the defendant was not entitled to sell the land until the registration of the rights in his name was completed, and since the defendant did so in contravention of the agreement, then the receiver could not and should not have foreseen the occurrence of the damage, according to him.  The receiver further claims that he acted reasonably and that he was not negligent and even claimed that there was no causal connection between his conduct and the damage.  In conclusion, the receiver argued that even if it is found that he should be held liable for damages, the defendant should be attributed contributory fault at a rate of 100%.

Discussion and Decision on the Statute of Limitations Claim

24. As has already been held, the burden of proving the claim of limitation lies with the defendant claiming the statute of limitations, while the burden of proving the existence of one of the exceptions that suspiciously, prolong or restart the statute of limitations rests on the plaintiff who "has the burden of arguing and proving the existence of the facts, which justify such deviation" [CA 34/88 Josephina Rotenberg Reiss v. Estate of the late Hannah Aberman, IsrSC 44(1) 278 (1990); At p.  283 Sifa.  See also: LCA 6916/18 Histadrut Medicinit Hadassah v.  Anonymous [Nevo] (December 5, 2018), para.  12; CA 1206/16 Samuel Diamond Company - Rosenbaum (1992) Ltd.    State of Israel - Ministry of Industry, Trade and Labor [Nevo] (October 9, 2018), para.  35; Tal Havkin, Statute of Limitations (2021), at p.  65; and Israel Gilad, Statute of Limitations in Civil Law (2022), at p.  96, note 70, and at pp.  294-295].
25. The burden imposed on the defendant claiming the statute of limitations is the burden of persuasion, and as a result of this he has the burden of bringing evidence to prove the claim, which is secondary and accompanying the burden of persuasion [LCA 1530/13 Edward Gadolov v. HaHargaz - Transportation Factory Ltd.  [Nevo] (05/05/2013), para.  9].
26. It was further ruled that the defendant has the burden of proving the day on which the cause of action arose for the purpose of calculating the limitation period [CA 945/11 Shankol Marketing (1937) Ltd.   Somekh Chaikin KPMG [Nevo] (20/08/2014, paragraph 9 of the judgment of the late Vice-President (as described at the time) M.  Naor].
27. Section 5 of the Statute of Limitations, 5718-1958, states that a claim in a matter that is not in real estate becomes obsolete after seven years, and it is needless to say that a monetary claim for payment of agreed compensation is such.
28. Section 6 of the Statute of Limitations states that the limitation period begins "on the day the cause of action was born". "In summary, it can be said that the formula formulated in the case law on this matter states that 'the cause of action consists of the totality of the facts that entitle the plaintiff to the relief he demands from the defendant'; and that the statute of limitations begins "on the day on which if the plaintiff had submitted his claim to the court and had proved all the material facts, he would have won a judgment" [CA 595/22 Bar Idan Manufacturing and Development Ltd.    Shapir Regional Council [Nevo] (March 28, 2023); Paragraph 13].
29. In contract law, the cause of action is born in principle on the day of the breach of the contract, upon the perfection of the breach. However, when the victim of the violation claims compensation for damage caused to him as a result of the breach after a period of time, the cause of action will arise on the date on which the damage was created, which is later than the date of the infringement [CA 3599/94 Shimon Jupiter v.  Bank Leumi Le-Israel Ltd., 50(5) 423, at pp.  430-432 (1997); and CA 8438/09 Rubab Property Company Ltd.    Dunitz Brothers Ltd., IsrSC 65(2) 635, at p.  651].
30. A claim for agreed compensation belongs to the first category. In other words, a cause of action for receiving agreed compensation is born on the day of the breach of contract.  See, for example , the case of Rubab above, in which the Honorable Justice (as he was then called)   Amit clarified that:

"Breach of contract may give rise to two separate causes of action: one - a cause of action created on the day of the breach, by virtue of which the injured party may, for example, sue for the enforcement of the contract or its cancellation or payment of agreed compensation; and the second - a cause of action arising on the day of the formation of the damage caused by the breach, when only the combination of the breach of contract and the damage caused by it gives rise to the injured party the cause of action that revolves around the claim for compensation for the breach" (ibid., at pp.  651b-c) (my emphasis, A.S.)

31. In our case, the defendant's undertaking to register the rights in the property in his name, for which the plaintiffs are in breach of the agreed compensation, should have been fulfilled by June 15, 2012, as stipulated in clause 3.1 of the second agreement. Hence, on the date of filing the claim, on January 23, 2022, about nine and a half years had passed since the date on which the defendant was supposed to fulfill his said undertaking, and therefore, the claim was prima facie statute of limitations.
32. However, in the statement of claim, the plaintiffs claimed that following the defendant's requests to them, they agreed several times to extend the said date (paragraphs 7-14 of the statement of claim). Plaintiff No.  2 repeated this version in his affidavit of his main testimony (paragraphs 16-24 of his affidavit) and he repeated it in his cross-examination (p.  22 of the transcript).
33. The defendant, who initially denied in his statement of defense the claim that such an agreement had been reached between the parties (paragraphs 30-38 of the statement of defense), admitted in his affidavit that the plaintiffs had agreed to extend the date for the fulfillment of his obligation, but further claimed that the extension that was agreed upon was until the date of the actual registration of the rights in his name, and this is stated in paragraph 43 of his affidavit: "As stated, the plaintiffs agreed to extend the date set out in the sale agreement that I signed until the date of registration of the rights in the plot in my name...".
34. The defense witness, Adv. Mishraki, also confirmed this in his affidavit in which he stated: "I will add and emphasize that counsel for the plaintiffs gave his consent to extend the date for the performance of the obligations of Mr. Soheil that he undertook in the framework of the sale agreement that he signed" (paragraph 62 of his affidavit).  He reiterated this in the framework of his cross-examination (p.  73 of the transcript, verses 5-9).
35. In fact, this is an admission by the defendant that the parties had indeed agreed to extend the date for fulfilling his obligation under the second agreement to register the rights in the property in his name, at least until December 31, 2015, according to the plaintiffs' version.
36. As is well known, the parties to a contract are entitled to orally agree between themselves on a change in one of the terms of the contract, even though it is a written contract, and there is no need for the agreement to be made in writing, even not in those cases where the written requirement is material as in a real estate transaction [Gabriela Shalev and Effi Zemach, Contract Law (2019), at p. 270].  Therefore, there is no impediment to the parties orally agreeing to change the date set in the agreement for the fulfillment of a condition or undertaking and to extend - by mutual agreement - the date set for the fulfillment of the condition or undertaking [see, for example, CA 464/81 Baruch Shamir Enterprises Building and Investment Company Ltd.    Bruria Hoch, IsrSC 37(3) 393 (1983), at pp.  416-417; Civil Appeal (Jerusalem District) 4175/02 Aharon Rivlin v.  Geo Bar 92 Civil Engineering Ltd.  [Nevo] (October 15, 2006), paragraph 75 and the judgment in the appeal filed against it - CA 10064/06 Geo-Bar (92) Civil Engineering Ltd.  v.  Aharon Rivlin (Nevo, February 21, 2013), paragraph 22(a); Judgment (Beer Sheva District) 53269-03-15 DSI - Dimona Silica Industries Ltd.  v.  The Official Receiver [Nevo] (December 29, 2015), para.  12; and Daniel Friedman, Nili Cohen, Contracts (Vol.  3, 2003), at p.  44].
37. In a situation where a contract is modified by the parties, by mutual agreement that has been formulated between them, then a breach of the previous provision of the contract, which was changed by the parties, should not be regarded as a breach of contract. When the parties agree to extend the time for the fulfillment of an obligation, one party cannot complain that the other party did not fulfill its obligation on the original date as stipulated in the contract, for it agreed to extend the date for its fulfillment.  In such a case, that party was not granted - during the extension period agreed upon between the parties - "power of action" to file its claim, and to the extent that it had filed such a claim before the new date agreed upon by the parties had passed, its claim would have been rejected on the grounds that the defendant had - in accordance with the agreement between the parties - an additional period of time for the fulfillment of the undertaking.
38. See also Civil Appeal (Shalom Jerusalem) 41288-03-22 Dudu Deri v. Eyal Salman [Nevo] (November 6, 2023), in which it was noted that:

"32.  By agreeing to an extension, each of the two parties undertakes something and waives a right in his hands.  Thus, the lender waives his right to take action to repay the loan (such as depositing the security check), while he receives a postponement of the statute of limitations.  and the opposite is true of the borrower and the guarantor, who receive a grace period during which no proceedings will be taken against them, and on the other hand, they waive the claim of giving birth to the claim by that date."

39. I agree with the defendant's argument that the plaintiff should not be left with the control, or the choice, in determining the date of the start of the statute of limitations, and that "a situation in which the key to the start of the statute of limitations race will be in the hands of the plaintiff should not be appropriate" [CA 595/22 Bar Idan Manufacturing and Development Ltd.   Shapir Regional Council [Nevo] (28/03/2023), para.  19].  It follows that the plaintiff should not be allowed to postpone this date by granting extensions to the other party to fulfill the obligation that was breached.  However, this is the case with the length of time given unilaterally by the plaintiff, but this is not the case when it comes to a mutual agreement that was formulated between the parties to change a condition in the contract by way of extending the time for the fulfillment of an obligation set forth therein, as in our case.
40. The defendant's arguments in his summaries that the plaintiffs' claim regarding the agreement to extend the date for the fulfillment of the undertaking has not been proven and is based only on the testimony of a litigant (paragraphs 14-15 of the defendant's summaries). As stated above, both the defendant and Adv. Mashraki, who testified on his behalf, confirmed in their affidavits that an agreement had been reached between the parties to extend the deadline, and it is a pity that the defendant is not accurate in his arguments.
41. Therefore, in light of the evidence material, it can be determined that the cause of action arose at the earliest on the date of sending the warning letter dated September 29, 2015, which put an end to the extension of the deadline by consent, in which the plaintiffs in fact clarified that they were no longer willing to extend the contract and that this constitutes a breach of the contract between the parties, while expressly stating that they stand for their rights under the Contracts Law for breach of contract. It should be noted that Adv. Mishraki confirmed in his cross-examination the receipt of the said letter (p.  73 of the transcript, verses 10-19).  Less than seven years passed from that date until the date of filing the claim, and therefore the claim has not become statute of limitations.
42. For the purpose of completing the hearing, I will briefly address a number of arguments raised by the defendant's counsel on the matter. It was argued that since the plaintiffs did not file a reply, in which they should have raised arguments against the claim of limitation, then they are silenced from arguing for the suspension or resumption of the limitation period.  Indeed, it has often been held that "a plaintiff who wishes to reject a claim of limitation included in a statement of defense, must file a statement of reply and argue in it the facts that substantiate his claims" [LCA 1345/13 Sami Sa'ida v.  Aseel Wood Transportation and Trading Company Ltd.  [Nevo] (05/03/2013), para.  8 and references therein].  It was held that "in this situation, the plaintiff will be prevented from bringing before the court the essential facts that have the power to take the sting from the defendant's claims, with all that derives and implications thereof" [Civil Appeal (Tel Aviv District) 26086-12-16 David Gabbay v.  Ofer Stratiner [Nevo] (11/02/2018), para.  1 and references therein].  If so, when a reply is not filed, and when a claim against the statute of limitations did not arise in the statement of claim, then the plaintiff has no "mouth to argue for an extension of the statute of limitations" [CA 7599/18 Anonymous v.  Eliyahu Insurance Company [Nevo] (3/03/2020), paragraph 4 and references].  In other words, the plaintiffs cannot make any claim regarding the suspension, extension or reboot of the limitation period.
43. However, a distinction must be made between the prohibition of invoking exceptions by virtue of the statute of limitations that suspend, initiate or extend the statute of limitations, and an argument with respect to the date on which the cause of action arose for the purpose of opening the statute of limitations. In accordance with the above rulings, a party who has not filed a reply against the statute of limitations argument is silenced from arguing for the exceptions set forth in the Statute of Limitations, but there is no impediment to arguing that the cause of action has not yet been born, and this, of course, is subject to the facts presented in the course of the proceeding and to what is claimed in the statement of claim.  In other words, the conclusion that the claim was not statute of limitations is not by virtue of the exceptions in the Statute of Limitations, but by virtue of section 6 of the Law, which determines the date on which the cause of action was born.
44. Moreover, as stated above, the plaintiffs already argued in the statement of claim regarding the agreement that was reached between the parties to extend the date for the fulfillment of the undertaking, and hence there is no expansion of the front in this matter.
45. The defendant further argued that even if the claim was not statute of limitations, it was filed with a delay for which it should be dismissed. I cannot accept this argument either.  As is well known, "a claim of delay raised against a civil action before the statute of limitations has passed is a difficult argument on various levels" [CA 6805/99 Talmud Torah General and Yeshiva Etz HaChaim in Jerusalem v.  Local Planning and Building Committee, Jerusalem, IsrSC 57(5), 433, 445 (2003)].  The argument must be examined with extreme caution in order not to render the statute of limitations meaningless.  Accepting the claim will shorten the statute of limitations and thus bring about a change in the balance between the plaintiff's rights, on the one hand, and the defendant's rights, on the other, and it may harm the plaintiff's expectations to finance his steps within the limitation period.
46. Therefore, it was held that only in exceptional cases and in rare circumstances will a claim be dismissed due to delay [CA 4352/15 Daniel Koren v. Oren Harel [Nevo] (August 2, 2017), paragraph 3 of the judgment of the Honorable Justice N.  Hendel], "and that the burden that the claimant must bear to dismiss a claim due to delay is heavy" [CA 2483/14 Zvika Shlomovitz v.  Beit Hananya, Moshav Ovdim for Settlement [Nevo] (July 14, 2016), para.  34].  The passage of time alone is not enough, and the defendant must prove that two cumulative conditions are met: first, that the delay was due to a representation that the plaintiff waived his rights; The second is that as a result the defendant changed his situation for the worse.  In addition, it must be proven that the delay was caused by bad faith [CA 2950/07 Younes Muhammad Suleiman v.  State of Israel - Israel Lands Administration [Nevo] (October 26, 2009), para.  33; CA 2919/07 State of Israel - Atomic Energy Commission v.  Edna Guy-Lippel, IsrSC 66(2) 82 (2010), paragraph 96 of the judgment of the Honorable Justice (as he was then called) Y.  Amit; CA 6182/14 Investlum Holdings Ltd.  v.  Yefet Library Ltd.  [Nevo] (3/05/2016), para.  13; CA 9839/17 Habitat Ltd.  v.  CAFOM [Nevo] (17/12/2018), paragraphs 33-34].  It was held that "a delay in filing a claim does not in itself attest to the plaintiff's waiver or waiver of the right to sue.  Delay within the limitation period is the right of the litigant" (Talmud Torah, at p.  446 E).
47. Even if the aforesaid conditions are met, the court is still given discretion to decide what significance should be given to the delay in the case before it, and the more weight it is concerned with a claim based on a right, the more it will be inclined not to prevent its investigation (the Habitat case, para. 34; the Inbestlom case, para.  13).
48. In the summaries on behalf of the defendant, the claim of delay completely embraces the claim of limitation. The defendant did not prove that the plaintiffs abandoned their claim, that it changed his situation for the worse, or that the plaintiffs acted in bad faith (and such a claim could not have been accepted in our case, in which the plaintiffs showed patience and went a long way toward the defendant when they agreed to extend the deadline for fulfilling his undertaking for a period of more than three years).
49. The defendant's main argument (as raised in the statement of defense but not explicitly claimed in the summaries) is that after the registration of the rights was carried out, he did not receive a letter from the plaintiffs complaining about his conduct and that he did not receive a demand or warning for payment. However, this does not prove that the plaintiffs did indeed abandon their claim.  The plaintiffs had already sent a warning letter before taking proceedings in which they warned the defendant that if he did not fulfill the contract, they would turn to a court of law.  The fact that no additional warning letter was sent after the rights were finally transferred does not in itself indicate that the claim has been abandoned, all the more so in view of the heavy burden imposed on the claimant for delay.  We will reiterate that there is no suffice in proving that the plaintiffs were embarrassed to file a statement of claim until near the end of the statute of limitations, since even the filing of a claim days before the end of the statute of limitations does not, in itself, attest to a delay (Talmud Torah, at p.  449; the Koren case, paragraph 3 of the judgment of the Honorable Justice Hendel).
50. In view of these things, the conclusion is that the claim has not become statute of limitations and the conditions justifying its rejection due to delay have not been proven. As a result, the notice to the third party also did not become statute of limitations, since it was ruled that the statute of limitations in the notice to a third party begins, at the earliest, with the issuance of the judgment in the main claim that obligates the defendant to pay in favor of the plaintiff [CA 1386/05 Cebus Rimon Industries Buildings and Development Ltd.    Technion Institute for Research and Development Ltd.  [Nevo] (July 2, 2008); CA 5635/13 Coral-Tel Ltd.  v.  Avihu Raz [Nevo] (April 1, 2015), para.  17; and Israel Gilad's essay, Statute of Limitations in Civil Law (2022), at pp.  146-148].

The Defendant's Claims Regarding the Contract and its Breach

51. First, it should be noted that the defendant did not reiterate in his summaries his claim in paragraph 43 of his affidavit that the plaintiffs agreed to extend the date for the fulfillment of his undertaking until the date on which the rights were actually registered in his name. Therefore, there is no need for me to decide the dispute that arises from the parties' versions regarding the last extended date until which there was mutual agreement of the parties, whether it was until December 31, 2015 according to the plaintiffs' version (paragraph 24 of plaintiff 2's affidavit), or until the date of the actual registration of the rights in the defendant's name on November 15, 2016 according to his version in his affidavit, in light of the precedent that "a claim that was argued in the statement of claims but was not raised in the summaries - whether by mistake or intentionally - is lawful as a claim that was abandoned and the court will not listen to it."CA 447/92 Henry Roth v.  Intercontinental Credit Corporation, IsrSC 49(2) 102, at p.    See also: LCA 3642/15 Shlomo Edri Electrical Services Ltd.  v.  Shimon Edri, para.  6 [Nevo] (09/06/2015); CA 2950/07 Younes Muhammad Suleiman v.  State of Israel - Israel Lands Administration, para.  32 [Nevo] (October 26, 2009); CA 8168/03 Yair Arnon v.  Zoabi Electricity Ltd., para.  28 [Nevo] (08/11/2009)].
52. Moreover, this is a clear defense argument and as such the burden of proving it is on the defendant, but he did not meet this burden. The argument is based on the defendant's only testimony, for which I did not find assistance or reinforcement, nor did I find any special justification for sufficing with it as required by section 54(2) of the Evidence Ordinance [on the nature of the requirement for reasoning, see: CA (Nazareth District) 1029/06 Traffic Michal Cement Ltd.    Benny Rushkansky [Nevo] (21/11/2006), para.  9].  At this point, it should be noted that Adv. Mashraki also confirmed in his affidavit, as stated above, that the plaintiffs' counsel gave his consent to the extension of the deadline, but did not claim that the extension according to this agreement was until the date of the actual registration of the rights in the defendant's name.
53. Hence the arguments raised by the defendant in his summaries regarding the contract and its breach, which are mainly two: first, that the defendant's obligation to register the rights in the land in his name is an obligation to make an effort and not a consequence obligation, and since the defendant tried to fulfill the contract, he should not be considered as having breached it despite the fact that he was unable to fulfill it; Second, the sale agreement between the parties includes a stipulation that defines all breaches of the agreement as fundamental breaches that entitle to agreed compensation at the same rate, and therefore this stipulation is void. It should be noted that these two arguments were raised only in the summaries, and were not argued in the statement of defense, as it was correct to do [I discussed the need to state the main legal arguments in the statement of claims in the judgment in Tel Aviv (Shalom Nazareth) 54733-11-21 Iskandar Matar v.  Yosef Matar [Nevo] (November 30, 2023), paragraphs 48-65].  Therefore, the arguments should be dismissed out of hand, but they must also be rejected on their merits.

00 Charge of Effort or Charge of Result?

54. 0The obligation to make an effort obligates a party to the contract to act and take all appropriate measures in order to achieve a certain result, but without committing that it will actually be realized. On the other hand, the obligation of a result imposes on a party to a contract an obligation to achieve a certain result [CA 7664/00 Avraham Rubinstein & Co.  Contracting Company Ltd.    Holon Municipality, 56(4) 117 (2002), at pp.  131 C-D.  CA 2887/91 Ben Zion Gol v.  Elitzur Uriel [Nevo] (September 28, 1995), para.  7.  See also: Gabriela Shalev, Yehuda Adar, Contract Law - Remedies (2009), at pp.  118-119].
55. "The distinction between the obligation to make an effort and the obligation to achieve a result has significant implications. As a rule, an obligation to obtain a result imposes on a party to the contract "absolute responsibility" to fulfill the obligation imposed on it, when failure to fulfill it would amount to a breach of contract.  In contrast, the classification of a contractual obligation as an effort obligation requires an examination of whether the party to the contract acted reasonably to fulfill the obligation, and the burden of proving that it did not do so rests with the other party" [CA 1463/22 The Greek Orthodox Patriarchate of Jerusalem v.  Himanuta Ltd.  [Nevo] (July 14, 2025), paragraph 68 of the judgment of the Honorable President   Amit].
56. "When it comes to contractual obligations, the key to classifying them as consequence positives or endeavor obligations is the consent of the parties." Only "in the absence of clear consent, the usual means of interpretation and completion of contracts should be assisted, with the assistance of life experience regarding what is customary in various fields of occupation" [Eyal Zamir, The Contracting Contract Law, 5734-1974 (Commentary on the Contract Laws, edited by G. Tedeschi, 1994), at p.  35].  Therefore, the question of whether we are dealing with an obligation to conclude or an obligation to make an effort depends first and foremost on the language of the contract [Eyal Zamir, The Sale Law, 5728-1968 - Commentary on the Laws of Contracts (  1, 2023), p.  352].

See and compare: CA 4176/20 Dror Cohen v.  Golan Ltd.  [Nevo] (May 30, 2023), para.  12; and CA 3313/13 David Nagar v.  Rosh Ha'Ayin Municipality [Nevo] (November 22, 2015), para.  18.

57. In the context of sales agreements, "although the execution of the registration may be delayed for reasons that are not dependent on the seller, the rule is that the transfer of ownership is a consequential obligation imposed on the seller and not only an obligation to try to transfer ownership" (Eyal Zamir, The Sale Law, 1968 - Commentary on the Contract Laws ( 2, 2023), p.  322).
58. In our case, since we are dealing with a real estate sale transaction, the registration of the rights according to the aforementioned rule is an obligation to consequence and not only an obligation to make an effort. An examination of the language of the second agreement also leads to the clear conclusion that we are dealing with a positive outcome.  Thus, for example, in clause 3.1 of the second agreement, it was determined that:

"The seller undertakes to register the aforementioned real estate in his name, since until this day, only a warning note has been registered in his favor, and this no later than June 15, 2012" (emphasis in original)