Civil Case (Tel Aviv) 11540-04-23 Uri Greenbaum v. Moshe Sherman - part 2

The total components of the claim -                                                                                       2,616,017 NIS

After deducting the amount in respect of which a settlement was reached (section 42.10 of the amended statement of claim) -                  (17,684 ₪)

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Antitrust                                                                                                                       2,598,333 ₪

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The amount of the claim - apparently due to the omission of the sum of 499,200 collective disputes (a) above -     2,099,133 ₪

3. The Outcome of the Judgment
   • The plaintiffs did suffer damages and are entitled to the agreed compensation for the breach of the agreement. At the same time, and as will be expanded in section 8.6 below, the rule is that the injured party should not be given double compensation for one head of damage.  In cases where the agreed compensation and the required compensation are intended to compensate for the same injury, the injured party must choose one of them or accept the higher of the two.  As will be detailed below, the damages that were proven are less than the agreed compensation, and therefore the defendants were charged a total sum equal to the agreed amount of compensation only.
   • At the conclusion of the judgment, the claim will be partially accepted, while the defendants will be required to pay the sum (principal) of ILS 1,000,000, which is the amount of the agreed compensation, as well as a charge of additional sums (principal) in the amount of ILS 13,599 due to payment of betterment tax paid by the plaintiffs on behalf of the defendants, as well as a sum of ILS 4,265 (principal) for a debt to the local authority paid by the plaintiffs instead of the defendants. All sums will bear linkage differentials and interest as required by law from the date of filing the amended statement of claim until the date of actual payment.

Part Two - The Witnesses Heard and the Details of the Parties' Arguments

4. The Two Witnesses Heard

In the course of the proceeding, only two witnesses were heard - plaintiff 1, and the defendant.

5. The parties' arguments
   • Extracted from NevoSummary of the Plaintiffs' Arguments

• The plaintiffs referred to the fact that the defendants, a lawyer and a lawyer, undertook in the agreement "jointly and severally". On April 12, 2021, an agreement was entered into between the parties for the purchase of an apartment for the sum of ILS 10,000,000 (hereinafter, respectively: the "Agreement" and the "Apartment").  Together with the apartment, its contents were also sold in the sum of ILS 270,000,000.  The defendants breached the agreement to sell the contents, and therefore it was canceled in a notice dated April 4, 2023.
• The plaintiffs transferred to the defendants, in accordance with the provisions of the agreement, a total of ILS 8,000,000. After the agreement was signed, the parties began to fulfill it.  After the plaintiffs paid the first payment in the sum of ILS 1,000,000, on April 13, 2021, a cautionary note was recorded in favor of the plaintiffs.  In total, the plaintiffs transferred ILS 8,000,000 to the defendants, with the last payment in the sum of ILS 2,000,000 conditional on the delivery of possession of the apartment.  In addition, the plaintiffs paid a sum of ILS 547,270 for purchase tax.
• Prior to the transfer of the last payment of ILS 2,000,000, the plaintiffs approached the sellers' attorney, but the defendant thwarted the transfer of the last payment , "barricaded herself in the apartment and refused to hand over possession of it" (paragraph 17 of the amended statement of claim). Subsequently, on July 26, 2021, the defendant announced the cancellation of the sale agreement on the grounds that the sale agreement was subject to a judgment in the framework of divorce proceedings between the defendants, and on the grounds that the defendant was not complying with the provisions of the judgment.  This argument was abandoned, and at a later stage it became a new argument regarding an option for an exchange of assets.  An option that will allow the defendant to live in the property where the plaintiffs live, and in return the plaintiffs will purchase the apartment that is the subject of the suit.  None of the claims appear in the agreement.
• On July 27, 2021, the plaintiffs rejected the defendant's claims in writing, warning that the delivery date had passed and that the agreement stipulated an agreed compensation in the sum of ILS 1,000,000. On August 15, 2021, the plaintiffs sent another letter that did not receive a substantive response, and thus the plaintiffs were forced to file a lawsuit with the Magistrate's Court (Civil Case 39496-08-21).  The plaintiffs were forced, against their will, to conduct many legal proceedings in various courts.
• In April 2023, a judgment was issued ordering the evacuation of the property, conditional on the plaintiffs depositing the balance of the consideration in the court coffers in the sum of ILS 2,000,000.
• Even after the judgment ordering the evacuation of the property, the way to its evacuation was not paved. The plaintiffs were forced to file a motion for an 'operative ruling' in a proceeding between the defendants themselves in the Family Court.  In this regard, the plaintiffs turned to the Family Court, where the divorce proceedings are being conducted between the defendants, in the framework of claims after the settlement of litigation 43793-07-21, 56098-07-21 and 43818-07-21.  The Family Court rejected their request, and an appeal proceeding conducted in the District Court was also rejected (the proceeding was conducted within the framework of the Family Appeals Authority 25984-07-22).
• The plaintiffs elaborated at length in their statement of claim and detailed the various legal proceedings they were forced to take, referring to the proceedings before the Honorable Judge Carmela Haft (Magistrate's Court); before the Honorable Judge Iris Ilotovich (Family Court); before the Honorable Judge Shaul Shochat (District Court); The Honorable Judge Sigal Ressler Zakai (District Court); and the Honorable Judge Gilad Hess (District Court). They also claimed a change in circumstances as a result, according to them, the placement of a grenade at the entrance to the property.
• For the purpose of presenting the dispute as required at this stage, I will not elaborate on each of the proceedings and discussions, but will refer to the fact that on April 17, 2023, the plaintiffs deposited the balance of the consideration and the eviction order came into effect. According to the plaintiffs, the defendants had not yet vacated the apartment, and it was necessary to take execution proceedings to evict it.
• The plaintiffs note that in their opinion, there is no doubt that the defendants breached the agreement when they undertook to deliver the apartment by July 15, 2021 (clauses 7A and B of the agreement), and in practice the order to vacate the property was received only in April 2023. The plaintiffs suffered damages and financial expenses, as detailed in paragraph 2 above.
  • Summary of the defendant's arguments
• The defendant had no defense arguments, since she did not file a statement of defense at all.
• Although the defendant did not file a statement of defense, she was well aware of the proceeding and even filed various motions in it. Thus, it is possible to refer to a response to a request to amend the statement of claim filed on September 12, 2023; and a request to amend the response submitted on September 12, 2023; Update from September 20, 2023; and a document submitted on September 30, 2024, which I will not refer to due to the privacy and dignity of defendant 2.
  • Summary of the defendant's arguments
• According to the defendant, the claim against him should be dismissed out of hand. The defendant referred to the fact that proceedings were being conducted between him and the defendant in the Family Court.  The defendant claimed that he had fulfilled the sale agreement and vacated the apartment on the scheduled date, and even cooperated with the plaintiffs in order to assist in the defendant's eviction.
• The defendant added that the parties had previously reached an agreement regarding the eviction of the defendant from the apartment. The defendant even reached an arrangement with the plaintiff whereby the plaintiffs would be paid the sum of ILS 10,000 for each month of rent, out of the money of the contents of the apartment in the sum of ILS 270,000, which the plaintiffs undertook to pay but did not pay.
• All the contents that the defendant undertook to transfer remained in the apartment. Therefore, the plaintiffs cannot retract their obligations to pay the sum of ILS 270,000 for the contents of the apartment. The defendant filmed the apartment on the day it was handed over to the plaintiffs, and it appears that the plaintiffs received all the equipment as the defendant undertook in the agreement.
• The defendant reiterated that it was agreed with the plaintiffs that they would be paid a sum of ILS 10,000 for each month of rent, from July 15, 2021, the date of delivery of possession of the apartment until the date of the actual eviction of the apartment on April 20, 2023, i.e., a sum of ILS 220,000 to be paid to the plaintiffs by defendant 2, which in fact postponed the date of the eviction of the apartment, when most of the time period was with the consent of the plaintiffs.
• Only on April 18, 2023, did the plaintiffs complete part of the balance of the consideration in the amount of ILS 2,000,000 in accordance with the decision of March 30, 2023. The plaintiffs were the ones who breached the agreement when they chose not to pay the sum of ILS 270,000 for the contents of the apartment.  The agreement regarding the contents was not cancelled and this is a unilateral act by the plaintiffs.
• The plaintiffs were aware that the apartment was being sold as part of a divorce proceeding that took place between the defendants. The damage to the apartment was estimated at a few thousand shekels and included repairing a plasterboard ceiling and cleaning a pool. The plaintiffs are trying to get rich illegally at the defendant's expense and refuse to pay him the sum of ILS 270,000.  It is not clear to the defendant why the plaintiffs did not pay the balance of the consideration in the sum of ILS 2,270,000 on the day of delivery of possession.
• The defendant added that the defendant's notice that the defendant was not responsible for her actions did not prevent the plaintiffs from completing their obligation in the sale agreement. The defendant acted in order to assist the plaintiffs in evicting the defendant, cooperated in the legal proceedings, hired the services of Adv. Avidan Arbiv in order for him to search for an apartment for the defendant and accompany her in renting an alternative apartment, and complied with all the written and unwritten, recorded and unrecorded agreements that existed between him and the plaintiffs.  His great assistance succeeded and the defendant moved into a residential apartment that she rented with the defendant's assistance on April 30, 2023.
• The defendant accused the plaintiffs of taking advantage of the couple's distress in a divorce proceeding, purchasing a property in the amount of ILS 10,270,000, the value of which was approximately ILS 15,000,000 on the day of the purchase, and they were aware of this. All along the way, the defendant offered them their money back, and they refused knowing that they had made a handsome profit when they signed the sale agreement, since it was a triplex apartment in Neve Aviv in Ramat Aviv, whose value was higher than the purchase price.
• The defendant further adds an argument that in any case has no place in the proceeding here - but rather in the proceeding between the defendant and the defendant. According to the defendant, in accordance with a judgment given by the Family Court in the framework of a threatening harassment proceeding and a protection order 25558-07-71 on February 21, 2021, the defendant's share in the residential apartment is ILS 1 million, of which a total of approximately ILS 218,000 remains in the court's coffers. After the mortgage payment is made, the remaining funds belong to the defendant who, as part of the arrangement as stated in the Family Court, agreed that an apartment would be purchased for the defendant and the defendant's joint children, the apartment would be registered in the children's name, and the defendant had no property rights in this apartment.  In other words, the sum of ILS 2,000,000 deposited in the court's coffers by the plaintiffs does not belong to either the defendant or the defendant but to their joint children, and to the extent that a judgment is given against the defendant, the plaintiffs have no authority to make use of these funds.

Transitional note - The above does not bring the full arguments of the parties, but it is sufficient to lay the foundation for the continuation of the judgment.