From the general to the individual
- In this context, the defendants raise two arguments, as to why the agreement between Hajj and Jarays should not be enforced: the first argument is that the granting of rights in the subject was not the intention of the parties; The second claim is that Jarees sold Hajj rights in an agricultural plot, while now if Hajj receives rights in Musha'a, he will receive rights that are land for construction, and this is a material deviation from the original agreement between the parties. i.e., To the extent that enforcement of the sale transaction is carried out approximately, the plaintiff will gain rights in the residential land, for which he did not pay. Haj responds in his summaries that although the sale transaction was made only on agricultural land, according to him, all the owners of the rights in the plot today are in Musha. Therefore, there is nothing to prevent his rights from being like this. In addition, the defendants have no right to stand on this claim since only defendant 1, the heir of Jeryes, can claim it, as a party to the transaction.
- Having considered the arguments of the parties, I am of the opinion that the defendants' arguments do not constitute an obstacle to the prosecution and to the approximate existence by registering in favor of Hajj in unspecified parts. First, in accordance with the Supreme Court's ruling An execution that grants the purchaser of real estate rights in a mosha instead of a specific part can constitute an approximate existence (See: The Aaronson case).
Second, the granting of rights in the land is only a stage before the stage of dissolution of the partnership in the land. At the stage of dissolution of the real estate partnership, each party will probably be allocated a specific part, while awarding balance payments if necessary that will preserve the rights and interests of all the landowners. Therefore, the realization of the agreement in such a manner, in which rights will be registered in the subject, does not constitute a materially different performance of the agreement. The fear that Hajj will receive a plot that is for construction where he purchased an agricultural plot is out of place. As part of the dissolution of a partnership, if areas defined as agricultural areas remain, a liquidation court is supposed to assign Hajj rights from this part, in order to balance the parties. Of course, if by that stage all the land is already designated for construction, this will not constitute a different execution from the original agreement. When Hajj Majrais purchased Plot 17/21, it was expected that Plot 17/21 might change its designation from agricultural to residential in the future. I do not see the need at this stage to decide which of the Partition Plan that was the focus of the previous and current litigation is the correct one, taking into account Munir's claims that Plan M/10 is a forgery, although it appears that Plan M/8 is the agreed plan on the basis of which all third parties, including Hajj, acquired their rights. However, this matter will be decided in the framework of the claim for dissolution of partnership and no decision is required at this stage.