At the same time, I will note, without setting any precedents on the matter, that in my view, even if there had been no partnership relationship between Kestenbaum and Koffler, but only a relationship of mission between a lawyer and his client, there would have been room to determine that Kestenbaum was liable for the brokerage fees by virtue of the general law. Thus, it seems that there is a real difficulty in a situation in which the lawyer of a person who entered into a brokerage agreement, and who was exposed in the course of his mission to the business opportunity of purchasing the property, will be exempt from brokerage fees, when he eventually purchased the property for himself.
In this context, it should be noted that the Magistrate's Court obligated Kestenbaum to pay the brokerage fees on the basis of the laws of emissary, and viewed the purchase of the property by Kestenbaum for himself as a deviation from the authorization, which allows Yaacobi to view Kestenbaum as his "agent", in accordance with Section 6(b) to the Law of Mission. At the same time, the Magistrate's Court noted that it was possible to reach the same result by virtue of the laws of enrichment and not by law. In our case, in view of the District Court's factual determination that Kestenbaum and Koffler were partners, I am not required to decide whether, in the absence of a partnership relationship, Kestenbaum was liable by virtue of one of the alternatives proposed by the Magistrate's Court, or by virtue of another arrangement in the general law (for example, by virtue of a breach of the fiduciary duties imposed on the agent by virtue of Section 8 The Law of Mission (and see: Aharon Barak The Law of Mission - Volume 1 (2nd ed., 1996), which noted that: "Hence the prohibition on the sender to take advantage of a "business opportunity" of the sender for his own benefit")).
- Before concluding, I will note that my conclusion that Kestenbaum should be charged the brokerage fees is consistent with the rulings of this court in the Mizrahi In the Mizrahi case, the court ruled in relation to a company that was not a party to the brokerage agreement, but ultimately purchased the property, that it was not liable for the brokerage fees, since "at the time of signing the brokerage contract, there was no partnership or mission relationship at all", but only at a later stage (Mizrahi, paragraph 60 of the opinion of Justice D. Barak-Erez). It appears that from this reasoning of the court it emerges that if at the time of entering into the brokerage agreement, the company was a partner of the company that entered into the brokerage agreement, then there would have been room to obligate it by virtue of this partnership. In our case, in accordance with the District Court's ruling, at the time of Koffler's engagement in the brokerage agreement, he and Kestenbaum were partners. Therefore, it appears that even in accordance with the court's reasoning in the Mizrahi case, Kestenbaum should be charged the brokerage fees, even though he did not enter into the brokerage agreement himself.
- Finally: I would suggest to my colleagues that leave to appeal be granted and that the request for leave to appeal be heard as an appeal, and that the appeal be dismissed.
I will also suggest that in the circumstances of the case, Kestenbaum and the company he owns will bear the expenses of Yaacobi and the company he owns in the sum of NIS 10,000, and the expenses of Koffler and Bar Yosef in the amount of NIS 2,500 each.
Yechiel KasherJudge |