In this regard, it should be said that the plaintiffs proved that they paid a sum of ILS 8,000,000 out of the consideration. Moreover, on March 30, 2023, an order was issued according to which, subject to the deposit of ILS 2,000,000, possession of the apartment would be given to the plaintiffs and defendant 2 would be evicted from the apartment. Accordingly, on April 17, 2023, a sum of ILS 2,000,000 was deposited in the court's coffers.
- The defendant refers to the fact that the plaintiffs breached the sale agreement, since they did not pay the sum of ILS 270,000 for the contents of the apartment. In this regard, it was agreed between the parties in the framework of Appendix B to the sale agreement entitled "The contents of the apartment", as follows - "It is agreed between the parties that upon the transfer of the rights to the apartment, the buyers will also be given the following (the 'contents')... It was agreed that for the contents, the buyer would pay the seller a sum of ILS 270,000...".
- On the other hand, the plaintiffs claim that they duly sent a notice of cancellation on April 4, 2023 (Appendix 2 to the amended statement of claim). In the notice, which was defined as "Notice of Cancellation of an Agreement for the Sale of the Contents of the Property", the plaintiffs stated as follows:
"3. After the eviction order was issued in the framework of the Civil Case 48659-09-22 My client decided to visit the property in order to assess its condition and prepare for repairs accordingly...
- During my client's visit to the property, he was surprised to discover that all the contents stated in the agreement for the sale of the contents of the property were destroyed or absent, there was a hole in the ceiling in one of the rooms, the pool was destroyed and full of carcasses, and the elevator was malfunctioning, and other damages that would be detailed in the appropriate proceedings.
- Therefore, and since you have not fulfilled your obligations in accordance with the agreement for the sale of the contents of the property, my client informs you of the cancellation of the agreement for the sale of the contents of the property."
- The agreement between the parties can be separated, and from here it is possible to receive the cancellation notice
- The sale agreement, which includes an appendix and a reference to the contents, is a separable agreement. Hence, the provision of section 7(c) of the Contracts Law (Remedies for Breach of Contract) applies, according to which - "The contract is given for separation into parts and one of its parts is breached in a breach that has grounds for canceling that part, the injured party is entitled to cancel only the part that was breached; If the breach also constitutes a fundamental breach of the entire contract, the injured party is entitled to cancel the part that was breached or the entire contract."
- The obligations in the agreement are not intertwined in such a way that they cannot be separated and there is a purpose in fulfilling one without fulfilling the other. This can also be learned from the District Court's attitude regarding the completion of the consideration and the evacuation of the property (Civil Case 48659-09-22), which ignored the contents agreement and focused only on the transfer of the property. Thus it was determined on March 30, 2023 (the Honorable Judge G. Hess, as stated inCivil Case 48659-09-22, Appendix 16 to the amended statement of claim) - "There is no dispute between the parties that an agreement was signed according to which the plaintiffs purchased the apartment from the defendants in exchange for ILS 10 million stipulated in the contract. There is also no dispute that the plaintiffs have paid ILS 8 million and other sums to date. The additional sum, in the amount of ILS 2 million, was supposed to be paid against the delivery of possession.... The plaintiffs will deposit the full balance of the consideration in the court's coffers within 21 days from today.... Subject to the deposit of the balance of the consideration, an order is hereby issued ordering the delivery of possession to the plaintiffs. In addition, an order was issued to remove defendant 2 from the property, starting from the day the balance of the consideration was deposited."
- For the sake of completeness, it should be said that both the testimony of the plaintiff and the testimony of the defendant, as will be brought below, indicate that the contents were not delivered in their condition as they were at the time of the signing of the agreement.
- The plaintiff's testimony indicates that after the cancellation of the contents agreement, the plaintiffs allowed the defendants to come and collect the contents that were not connected by a permanent connection, and this is how he was asked and answered (Tax Appeal 12 para., paras. 23-31):
"Mr. Greenbaum: In any case, we canceled the furniture agreement because we got the completely destroyed apartment with completely destroyed furniture, we just evacuated it to the warehouse and allowed you to come and do it,