In our case, I have not been persuaded, to say the least, that it is justified to obligate the defendant to fulfill the payment in full or that there are "exceptional exceptions".
The plaintiff claims payment in the sum of ILS 585,000 (including VAT) based on the price quote (Appendix 1B to the claim). In the absence of a written agreement - a defect that goes to the root of the matter, since the aforementioned price quote was not signed (even though it was proven that it was transferred to the defendant; see Appendix 5 to the claim and the testimony of Roni Levy at p. 18) and when no expert opinion or references were attached on behalf of the plaintiff regarding the "customary prices in the field", this is sufficient to determine that there is no basis or justification for awarding in favor of the plaintiff the full consideration.
However, it is clear that the fact that the plaintiff performed the work required of her in the project should not be ignored, and it is not justice or basic fairness to exempt the defendant for nothing, but for the reason that no contract was signed between the parties (I will elaborate on the conduct of the parties in this matter below).
- Therefore, I saw fit to determine that the plaintiff was entitled to monetary consideration, albeit partially, for her work for the defendant. "In the framework of section 31 of the Contracts Law, the court has another option, and that is to order the fulfillment of the part of the obligation. In the case of monetary consideration, the court can order the payment of part of the consideration that was agreed upon" (Rosenblum, at paragraph 30).
- In this matter of determining the partial amount in which the authority should be obligated, the case law instructs us to consider the following considerations (Rosenblum, paragraphs 34-35):
"In the framework of exercising discretion, the court will give its opinion to the good faith of the parties and the extent of their guilt in the illegal engagement, to the conduct of the parties and to the background to the conclusion of the agreement... On the other hand, the court must take into account the social purpose underlying section 232 of the order and section 30 of the Contracts Law, which seeks to deter parties from entering into an illegal contract, as well as the particular purpose of section 232 of the order, which seeks to protect public funds and require supervision of their expenditure... In examining the circumstances of the case, the court must examine the conduct of the parties and determine whether the service provider or the person performing the work was in good faith, or knew that he should have met the requirements of section 232 of the order... Whether the authority acted in good faith, was negligent, or created a false representation towards the service provider or the person performing the work, according to which the engagement as it was made is sufficient to bind it... whether the contractual consideration was approved within the framework of the budget for the relevant period; and whether the defect in the engagement is marginal or substantial. After examining all of these, he must determine how to balance the result that appears to be a just result in terms of the relations between the concrete parties to the conflict and the desired result, taking into account the purposes that I discussed above... In determining the amount that the authority must pay, if any, objective criteria should be preferred for assessing the value of the work or service that the authority enjoyed, and in any case where the service provider or the person performing the work is not completely in good faith, this lack of good faith must be expressed by reducing the amount at which the service or work is evaluated objectively."
- In the circumstances of the case before me, I found that the parties were jointly guilty of their illegal engagement and that they both committed a bad faith sin in their conduct regarding the project.
The parties knew that they had to comply with the requirements of section 203 of the Municipalities Ordinance (see, inter alia, the testimony of Mr. Fahoum on p. 15, para. 39 and p. 16, paras. 1-7) and both chose not to carry out the project on the assumption that during its execution or even at its completion, a written agreement would be signed between them.
- The plaintiff lists a number of reasons why a written contract was not signed at the beginning of the project, mainly because this was the norm that was accepted at the time in the Nahariya Municipality (testimony of Mr. Fahoum, at p. 2), as well as the relationship of trust that was created between the parties, in which the plaintiff used to receive work orders from the defendant without first drawing up written contracts, for which he was paid without any problem.
- From the testimonies of the parties, it appears that the Nahariya Municipality did indeed practice at the time a kind of organizational/managerial culture according to which the signing of an agreement, in certain cases, was not done at the beginning of the road (testimony of Mr. Levy at p. 18, paras. 33-39 and at p. 19; testimony of Mr. Fares at p. 25, paras. 35-39 and at p. 26 and testimony of Mr. Szymanovich at p. 36, paras. 21-23).
- However, even if the plaintiff chose to carry out the work based on the same norm that was accepted at the time in the Nahariya Municipality, as well as on the representation presented to her that the matter of the contract would be settled later, it was still the plaintiff's choice to take upon herself the risk that in the end an agreement would not be signed, as indeed happened in practice.
And see the words of Mr. Fahoum, "And I came to my senses afterwards, as if... that I simply won't work without a contract" (p. 2, S.; 18-19 See also p. 16, paras. 4-15).
- With regard to the question of why the terms of the engagement or the matter of payment for the plaintiff's work were not settled at the end of the day, the parties' testimonies indicate that the reason for this lies in the elections that took place in the city and the change of government.
See the words of Mr. Levy, "Unfortunately, this story fell into the seam between one mayor or new elected officials who run the municipality" (p. 19, paras. 1-5); Mr. Fares' words: "It fell between the seam of 2018 during the election period... And somehow we wanted to bridge the gaps (p. 22, paras. 32-35) and later he said, "So I said, this seam of the change in the authority's management (unclear) and the authority's entry into a recovery plan and an accompanying accountant, brought us to this situation. Otherwise, I think, it could have been disposed of within the walls of the Authority, without any problem. This project was budgeted to the best of my memory... (p. 26, paras. 20-23); See also his words on p. 27, paras. 29-30.
- According to the plaintiff, the new management in the municipality refused to honor the agreements made with the previous management (section 26 of the lawsuit), while according to the defendant, the change of government in the city was not supposed to affect the municipality's obligations, but this was on condition that these commitments were made lawfully, i.e., in accordance with section 203 of the Municipalities Ordinance (section 45 of the defense).
Rather, the defendant is naïve in this claim. As noted above, the defendant has a common fault with regard to the failure to comply with the requirements in section 203 of the Municipalities Ordinance, especially since the absence of a written contract did not prevent it from receiving from the plaintiff all the services required of it (planning and supreme supervision).
- After I considered the conduct of the parties as described above, considered all the relevant considerations in the matter and made the necessary balance, I found the sum of ILS 150,000 to be awarded in favor of the plaintiff.
In this regard, the words of the Honorable Justice E. Rubinstein in the Rosenblum case (section 4) are appropriate: