This requirement for a written contract, which constitutes an exception to the prescribed "freedom of form" In the section 23 Law The Contracts (General Part), 5733-1973, is not unique to the Realtors Law and exists in other arrangements throughout civil legislation, the most familiar of which (although as aforesaid, there are many other arrangements) is the permanent arrangement In the section 8 Law The Real Estate, 5729-1969. Although these provisions have been interpreted, as a rule, As substantive requirements of a constituent nature, and not of a purely evidentiary nature, the case law that was ruled in their context recognized the possibility of "softening" the written requirement and overcoming it (see: Daniel Friedman and Nili Cohen Contracts Vol. 1 525-526 (2nd ed. 2018); Gabriela Shalev and Effi Zemach Contract Law 263-274 (4th ed. 2019)).
In the matter Mizrahi, the court was asked whether there is room to allow a similar "softening" in relation to the written requirement in section 9 to the Realtors Law. In its ruling, this court distinguished between filling in missing details in brokerage agreements, and overcoming the complete absence of a reporter. Whereas with respect to the completion of missing details, it was determined that in the appropriate cases "There is no room to insist on the written requirement in this regard in a precise manner" (Name, paragraph 46 of the judge's judgment D. Barak-Erez), in relation to the complete absence of a reporter, it was held that "It is difficult to think of a situation in which it would be possible to completely waive the basic requirement for the existence of a written brokerage contract in order to impose a brokerage fee charge" (Name, paragraph 50 of the judge's judgment D. Barak-Erez; See also paragraphs 48-51 of her judgment, as well as paragraph 7 of the judge's opinion Y. Elron).
- In the framework of the present proceeding, the parties focused on the question of whether, in view of what was stated in the Mizrahi case, it should be recognized, in the circumstances of the present case, the "softening" of the written requirement in the Realtors Law, even in the complete absence of a written: on the one hand, Kestenbaum and the company he owns argued that the "softening" of the written requirement should not be recognized, at least not in the circumstances at hand. On the other hand, Yaacobi and the company he owns argued that in the unique circumstances of our case, it is necessary to recognize such "softening". Indeed, the question of whether there are unique circumstances in which there is room to overcome the written requirement in the Realtors Law, despite the absolute absence of a written, and what are those circumstances, is a weighty question, which may arise in the Sagi Civil Appeal Leave Proceeding, which is pending before this Court (Justices Barak-Erez, G. Kanfi-Steinitz, and myself).
However, in my view, the matter of the case at hand is not at all the question of "Softening"The written requirement in the Realtors Law. Instead, The question that arises before us is a question of Attribution A brokerage agreement made in writing to a party to which he was allegedly not a party. This distinction is of crucial importance. While you asked"Softening"The requirement of writing arises when the basis of writing is not met, so you asked Attribution The obligation by virtue of the agreement made in writing to a person who was not a party to it, arises precisely when a written brokerage agreement is drawn up in accordance with the requirement of the Section 9 to the Realtors Law. In any case, the "geometric location" of these questions is completely different – while the question of "softening" the written requirement is rooted entirely in the laws of real estate brokerage and the scope of its application Section 9 According to the Realtors Law, the question of attributing the obligation by virtue of the brokerage agreement to someone who was not a party to it, is not a derivative of real estate brokerage laws specifically, but rather from the general law.