Second, it is necessary to discuss whether the card signed by the members of the group committee in 2020, which included the total amount of the debt as well as a breakdown of the debt of each group member (as stated in the paragraph 13 supra), prevents the plaintiffs from disagreeing with the total amount of the debt stated therein, as the defendants claim; Is its status binding only with respect to the relative division between the class members, but not with respect to the total amount of the debt, as the plaintiffs claim; Or a different position should be adopted on this matter.
Third, if the plaintiffs are entitled to dispute the amount of the debt according to the invoice, it is necessary to find out what the correct amount is, and calculate it according to the provisions of the loan agreements between the parties and the provisions of the law regarding interest. In this regard, there is great relevance to the expert opinion of the court, who calculated the amounts of the debt according to the provisions of the agreements and the law according to his understanding The same.
FourthThe question of whether the plaintiffs are entitled to claim offset amounts of the contractor's alleged debts against them for delay in delivery, and if so, what are these amounts. This question is also related to the question of whether the plaintiffs should be exempted from interest for the alleged period of delay.
Fifth:, the question of whether interest should be added to the amounts of debt that will be determined for the period that has elapsed since the end of the venture in 2019 until today, or whether the defendants' conduct justifies exempting the plaintiffs from these interest rates.
- I will now say that with regard to the first question, I have reached the conclusion that the plaintiffs' liability for the balance of the debt is "jointly and severally"; with regard to the second question, I have reached the conclusion that in the framework of a legal proceeding, the plaintiffs are entitled to disagree with the amount of the debt set out in the card; with regard to the third question, the correct amount must be calculated in accordance with the provisions of the agreements and the provisions of the Fair Credit Law, in accordance with what is stated in Chapter E(2) below; With regard to the fourth question, my conclusion is that the plaintiffs are not entitled to raise claims regarding the delay in delivery and its consequences, in view of the waiver of claims that binds them as well; and with regard to the fifth question, I am of the opinion that the conduct of the defendants justifies exempting the plaintiffs from interest for the period from July 24, 2020 until the date of the judgment.
- I will detail my reasons for these conclusions, in their order. The first two questions will be discussed together, because, as stated, both are intrinsically connected to the question of the meaning of the provision of clause 6.6 of the second agreement: this is the provision which, according to the plaintiffs, changed the regime of mutual liability between the members of the class that was determined in the agreements, and by virtue of which each member is liable only for his individual debt, in accordance with his relative share of the total debt according to the invoice; And this is the instruction that, according to the defendants, prevents the plaintiffs from disagreeing on the amount of the debt according to the ticket. I will then address the other questions.
E(1) Clause 6.6 of the Second Agreement: Status of the Ticketing and the Question of Liability "Together and Separately"
- Both the first agreement and the second agreement stipulated, as aforesaid, that the liability of the class members is "all together and each separately" (see the title of the first agreement and clause 6.2 thereof; as well as the title of the second agreement). The two agreements also talk about the total amounts of loans that the lenders will provide to the group, and relate to the group as a whole. Clause 6.6 of the Second Agreement is almost the only place where the class members are treated individually and separately.[6]
- Clause 6.6 is part of clause 6 entitled "Collateral", which deals with collateral that will be given for the repayment of the loan given to the members of the class by virtue of the second agreement. As already noted, in the framework of clause 6, the members of the class undertook to register a mortgage on the land as a whole. Against the background of this undertaking, there is a provision of clause 6.6, the relevant parts of which I will quote again:
The collateral, as stated above, is a lien on the entire land, this collateral will be converted into an individual collateral against each borrower, as soon as it is possible to register an individual lien on each apartment at the Land Registry Office... The amount of the debt of each borrower in the real estate will be determined in accordance with a card issued by the group committee, which will constitute conclusive evidence of the borrower's debt, and for this amount the individual lien will be recorded, to the extent that it is possible as stated above. Only after receiving a letter from the lender and the group committee that the specific borrower has paid his debt in full to the lender and the group will the lien be lifted.
- The plaintiffs argue, as stated, that the aforementioned clause embodies a material change in the liability regime "jointly and severally" set forth in the agreements. According to them, this means that from the stage at which it is possible to register an individual lien on the share of each group member (i.e., after the division of the land into registration units, each of which will be registered in the name of a specific group member), the liability of each member will be only in his proportional share of the total debt according to the ticket. As to the status of the card as "conclusive evidence of the borrower's debt", in the words of the section, according to the plaintiffs, the intention is that the card will be conclusive evidence only of the relative division among the members of the class, but not of the total amount of debt from which the debt of each member is derived.
- The defendants argue, on the other hand, that the provision of clause 6.6 does not replace the liability regime "jointly and severally" set out in the agreements, and that the status of the card is binding for all intents and purposes, both with respect to the total amount of the debt and with respect to the individual debt of each class member.
- If so, we are interested in the question of the interpretation of a specific sub-clause, within a specific clause, within a specific contract.
As is well known, the question of what methodology should be adopted for the purpose of interpreting a contract has occupied the legal world for generations. For our purposes, it is sufficient to mention that Section 25(a) of the Contracts (General Part) Law, 5733-1973 (hereinafter: The Contracts Law) states that a contract shall be interpreted "according to the intentions of the parties, as it is implied in the contract and the circumstances of the matter, but if the intentions of the parties are expressly implied by the language of the contract, the contract shall be interpreted in accordance with its language." The case law held that the intentions of the parties "are the goals, objectives, interests, and plan that the parties jointly sought to realize" (Civil Appeal 4628/93 State of Israel v. Apropim Housing and Development (1991) Ltd., IsrSC 49(2) 265, 311 (1991), and that "The court must do everything possible to trace the subjective intentions of the parties to the contract, and to be as careful as possible against reading new clauses into the contract." (Additional Civil Hearing 8100/19) Bibi Dirt Roads and Development in Tax Appeal v. Israel Railways Ltd., paragraph 13 (April 19, 2020)). It was further determined that