Yaacobi and the company he owns also claim that the District Court's ruling is consistent with the ruling in the matter Mizrahi According to which it is not possible to charge brokerage fees to someone who has joined as a partner to a brokerage agreement After The conclusion of the brokerage agreement, whereas in our case Koffler and Kestenbaum were partners at the time of the conclusion of the brokerage agreement, and this is the determining date regarding the charge of the brokerage fees. In this context, Yaacobi and the company he owns emphasize that the claim of partnership between Kestbaum and Kopler was made in the statement of claim, and that even if it had not been claimed, it would not have had any effect when in the framework of the pleadings and affidavits of the other parties, including Kestenbaum, this claim was made. It was also argued that the court may reach a legal conclusion based on the facts in the parties' pleadings even without argument in the pleadings. It was further argued that the Magistrate's Court did not consider the partnership claim on its merits, but only because it based Kestenbaum's obligation on a provision Section 6(II) Law The Mission, and not because he rejected the partnership claim. In this context, Yaacobi and the company he owns claim that the Magistrate's Court's determination that Kestenbaum exceeded his authorization as an agent does not contradict the partnership's claim, and that Kestenbaum can be held liable both by virtue of partnership and by virtue of his deviation from his authorization as an agent.
Another argument by Yaacobi and the company he owns is that Kestenbaum should also be held liable for his extreme lack of good faith. This lack of good faith makes it possible, according to them, to overcome the written requirement set forth in the Realtors Law. It was also argued that in the present case there was substantial proof of fraud on the part of Kestenbaum that makes it possible to overcome the aforementioned written requirement.
- In Koffler's response to the request for leave to appeal, it was argued, in essence, that the application should be rejected because it does not meet the criteria for intervention in a "third incarnation".
- In Bar Yosef's response to the request for leave to appeal, Bar Yosef left the decision on the application for leave to the discretion of the court. However, Bar Yosef argued that the argument of Kestenbaum and the company he owns that the deal that was ultimately concluded was different from the one discussed in the brokerage agreement should be rejected. Bar-Yosef argued that the aforementioned argument was rejected by the court not only because it was an extension of the façade, but also because it contradicted other claims by Kestenbaum, and that on the merits of the matter, the payment of the brokerage fees was not conditional on the purchase of the property for a specific amount. Bar-Yosef also notes that the appellate court, all the more so in a "third incarnation", does not usually intervene in factual findings.
Discussion and Decision
- As is well known, leave to appeal in a "third incarnation" will be granted in exceptional cases where a legal question of principle arises that deviates from the parties' individual interest, or when the rejection of the application for leave to appeal will result in a miscarriage of justice (Civil Appeal Authority 23485-06-25 Ankava - Beit Aviv inTax Appeal v. Fleischer, para. 8 [Nevo] (October 15, 2025); Civil Appeal Authority 44760-06-25 Trabelsi v. Zadok, para. 7 [Nevo] (October 9, 2025)).