Indeed, in view of the considerable significance of the decision regarding the signing of the waiver of claims, it is possible that it should have been brought before the members of the class and not presented as a final decision of the committee. It is also possible that it would have been appropriate to allow the members of the group a longer stay to address it. However, The overall conduct shows that the plaintiffs did not repudiate the signature, even retroactively, and even enjoyed its results. Thus, They should be seen as those who at least approved the decision retroactively, or alternatively as those who are now prevented from denying it by virtue of the duty of good faith.[17]
- The conclusion, therefore, is that the plaintiffs are bound by the waiver of claims dated May 2, 2019. This is first and foremost as those who, in their conduct, retroactively approved the signature on behalf of the committee, or at least are silenced from denying it. It is not impossible that the plaintiffs' continued behavior toward the board or toward the defendants also granted the board permission to represent them before the defendants. It is possible that the class members even authorized the board in advance to represent them before the defendants in a decision of the general meeting, as required by the partnership agreement.
- By virtue of that waiver, the plaintiffs are prevented from raising claims regarding the delay in completing the project: they are claims regarding the existence of a debt on the part of the contractor, due to an alleged delay in delivery; and they are claims regarding the non-charging of interest for the amounts of the debt owed to the lenders during the alleged delay period.
E(3)(3) The claims regarding the defendants' liability for the delay in completing the project on their merits
- Taking into account the above conclusion, there is no prima facie need to go into detail about the plaintiffs' claims regarding the defendants' liability for the delay in completing the project. I will therefore address this matter only briefly, and for the sake of caution.
- As already noted, the construction of the project was supposed to be completed by May 13, 2017, but there is no dispute that the occupancy permit was granted only on May 19, 2019. The burden of proving that this delay does not establish grounds for compensation rests on the contractor.
- The contractor did not submit an affidavit on her behalf, nor did she attach the work diaries or other documents. This evidentiary omission might have made it difficult for the contractor to prove its claims, but its implications were contingent on the testimonies of Mr. Rachmin and Mr. David, as well as on the submission of the performance accounts (Exhibit N/2; see also some of the accounts in Appendix 8 to the affidavit of Plaintiff 1).
The execution accounts indicated that most of the works were already completed during the second half of 2017, not far from the date on which they were supposed to be completed under the third agreement (see accounts from May 17, 2017 onwards;[18] See also Mr. Rachmin's testimony on page 62 of the transcript of the hearing of September 10, 2025; Mr. David did not remember the exact date on which the work was completed, but he estimated that there was a gap of "one plus year" plus about four months between him and the receipt of the occupancy certificate (ibid., p. 79). Support for the fact that the work was completed during 2017 can be found in a WhatsApp message sent by one of the group members on August 31, 2017, in which he complained that "the house has been finished for six months and is standing for nothing" (the WhatsApp correspondence submitted by the plaintiffs on September 21, 2025).