Application for Leave to Appeal
- On the judgment of the District Court, Kestenbaum and the company he owns filed the application for leave to appeal before us.
In their motion, Kestenbaum and the company he owns argue that the claim raises a question of principle that goes beyond the interests of the parties to this proceeding: according to them, the question of which cases should be decided in which there is room to "soften" the fixed written requirement In section 9(a) to the Realtors Law. According to them, in the judgment in the Mizrahi This Court noted that the question of the interpretation of the written requirement in the Realtors Law is still awaiting a decision, and that this decision is required in its case.
Thus, according to Kestenbaum and the company he owns, there is room to soften the written requirement only in exceptional cases of "actual fraud" or extreme bad faith. According to them, the District Court's judgment obligated them to pay the brokerage fees even though they did not sign the brokerage agreement and even though the exceptional and extreme circumstances that were recognized as suitable for softening the written requirement set forth in the Realtors Law did not exist in their case. In this context, Kestenbaum and the company he owns claim that another judgment given by the District Court (Civil Appeal (Tel Aviv District) 20847-10-25 Sagi v. Deri [Nevo] (August 6, 2024), for which an application for leave to appeal is pending before this Court (Civil Appeal Authority 9659-11-24 Sagi v. Deri, [Nevo] Hereinafter: Civil Appeal Authority Sagi)), contradicts the decision in our case, since it was determined in this judgment that the written requirement can be softened only in the case of "substantial fraud".
It was further argued that the District Court erred in obligating Kestenbaum and the company he owns to pay the brokerage fees, even though the brokerage agreement, which was not signed by Kestenbaum and the company he owns, lacks a material detail – the amount of the transaction – in a way that contradicts the Regulation 1(4) For the Regulations Real estate brokers (Written Order Details), 5757-1997, hereinafter: Brokers Regulations). Kestenbaum and the company he owns note that while the District Court made up for this shortcoming, it erred in ignoring the fact that the brokerage agreement was signed against the background of a concrete proposal for a transaction that was substantially different from the one in which Kestenbaum ultimately entered. Thus, while in the brokerage agreement signed by Koffler, the brokerage fees were conditional on the conclusion of a sale transaction in accordance with Koffler's offer to purchase the property for the sum of NIS 1,000,000, in practice Kestenbaum purchased the property for NIS 2,500,000.