And the same thing, otherwise: the question of "softening" the written requirement is concerned with the brokerage agreement itself, and with the question of whether it establishes a charge for the brokerage fees for the person who entered into it, despite the absence of a writer. On the other hand, the question of Attribution The charge of brokerage fees by virtue of the brokerage agreement for someone to whom he was allegedly not a party does not deal at all with the brokerage agreement itself. On the contrary, the starting point with regard to the question of attribution of the charge of brokerage fees is that the brokerage agreement itself was drafted in accordance with the law and law, and that there is no reason to ponder its validity. Instead, the issue of this question is the existence of a cause of action in the general law for which a party who was not a party to the brokerage agreement must be liable to the obligation set out in the brokerage agreement.
- Before I examine this question on its merits, I will note that support for the aforementioned distinction between "softening" the written requirement and attributing a charge by virtue of the brokerage agreement to a person who was not a party to it can be found in the article of the scholar Avi Weinroth, who expressed a similar position according to which such a case does not constitute a classic "full softening" (i.e., overcoming the complete absence of a reporter). Thus, with regard to Civil Appeal (Tel Aviv District) 2216/09 Yair v. Stoller [Nevo] (April 28, 2011), in which the District Court was liable for the brokerage fees of a partner who claimed that he was not bound by a brokerage agreement signed by his partner, the learned Weinroth noted that:
"This is not a classic full softening of the wording, since these rulings did not deal with a situation of a complete absence of a reporter, in which the realtor tries to demand a commission without having any document in his possession. In the aforementioned cases, he was a writer, and the question was what his fields were, who he obligates and for which transactions he obliges." (Avi Weinroth, The Written Requirement in a Real Estate Brokerage Transaction, Law and Business, 22, 156-157 (2020)).
- And now to the question before us – should the charges by virtue of the brokerage agreement signed by Koffler be attributed to Kestenbaum and the company he owns? In examining this question, we must answer two questions: first, is the basic charge by virtue of the brokerage agreement valid; The second is whether by virtue of the general law there is a reason to attribute this valid obligation to a person who was ostensibly not a party to the brokerage agreement. It should be precise, in accordance with the above, that the question of the existence of a written, in accordance with the statutory requirement set forth in section 9 of the Contracts Law, relates only to the first question: in order for the broker to be entitled to the brokerage fees on the brokerage agreement to meet the written requirement. On the other hand, the second question is not about the requirement of the written.
In our case, it is clear that no difficulty arises with regard to the first question: the brokerage agreement between Yaacobi and Kopler was made in writing and therefore meets the prescribed requirement In the section 9 The Disputers Law establishes the right of Yaakobi to receive the brokerage fees if the condition set forth therein – the purchase of the property by Koffler is met.