The date of delivery was conditional on the payment of a balance of consideration in the sum of ILS 2,000,000, and in the words of clause 6H of the sale agreement (emphases added):
"Last payment - the balance of the consideration in the sum of ILS 2,000,000 (two million) will be paid by the buyer to the seller by bank check/bank transfer only until July 15, 2021 Against the Delivery of Possession and the contents of the apartment and the delivery of all the necessary original documents and permits."
In practice, the plaintiffs were willing and even asked to pay the balance of the consideration in exchange for the delivery of possession, but - in order to carry out the provisions of the agreement, they were forced to take legal proceedings - as some of them were already detailed in clause 5.1 above, in the framework of presenting a summary of the plaintiffs' claims. Either way, the apartment was finally vacated and about this in the next paragraph.
- On April 23, 2023, a judgment was given in Civil Case 48659-09-22 (the Honorable Judge G. Hess), which related to the eviction of the apartment and the commercialization of possession thereof and ruled as follows (Appendix 18 to the amended statement of claim) - "... An order is hereby issued instructing the defendants to vacate the property.... and return it to the plaintiffs free of any person and object. For the avoidance of doubt, the physical evacuation proceedings can begin as early as April 19, 2023 at 09:00 without the need for additional warning from the Execution"
The apartment was finally evicted by the Execution Office, on April 30, 2023 (Appendix 18 to the statement of claim). In other words, possession of the apartment was delivered only after nearly two years after the delivery date set in the sale agreement.
- The date of delivery of possession of the apartment is normally a fundamental condition in the provisions of a sale agreement, and therefore it is usually possible to determine that its breach is a fundamental breach of the agreement. This is in accordance with the provisions of Section 6 of the Contracts Law (Remedies for Breach of Contract), 5731-1970 (hereinafter: "the Remedies Law"), which defines a fundamental breach as follows - "a breach in respect of which it can be assumed that a reasonable person would not have entered into that contract if he had foreseen the breach and its consequences, or a breach that was agreed upon in the contract that would be considered fundamental; A sweeping clause in a contract that commits breaches to fundamental breaches without distinguishing between them, is invalid unless it was reasonable at the time the contract was concluded."
In our case, the delivery of possession was determined in any case as a provision whose violation confers a right to receive agreed compensation. The delivery of possession was determined in clause 6 of the sale agreement, and subsequently - clause 10 of the sale agreement established provisions regarding agreed compensation for violation of various provisions of the agreement - including the provisions of clause 6. In the words of clause 10(a) of the sale agreement: