"Without derogating from the aforementioned undertaking [to pay $13 million to Hymanuta], the Patriarchate and the JNF declare aware and agree that the Patriarchate is financing the payment of the aforementioned sum by a third party, which is a private entity that is not connected in any way to the land affair."
A second addendum stipulated Agreed Compensation In the event that the Patriarchate is late in making the payment, and it appears in clause 11 of the settlement agreement, which reads as follows:
"Without derogating from the provisions of section 10 above [which granted each party a right to remedies by virtue of the Drugs Law - 10], it is hereby agreed that any delay in making the payment stated in section 3 above will bear an annual (dollar) interest rate of 8%, without derogating from the JNF's right to any other or additional remedy."
These two additions did not appear in the original version of the settlement agreement that was attached to the particular, and both are based on arguments raised by the parties in the appeals before us. The issue of the financing of the payment by a third party is at the center of the Patriarchate's claim regarding the dispute that arose between the parties after the reading of the Particular, a dispute that, according to the Patriarchate, justified its failure to sign the Settlement Agreement. On the other hand, the issue of the agreed compensation is at the center of Himanuta's appeal, which complains that the District Court did not rule in her favor of this compensation in addition to the patriarchate's obligation to pay $13 million. We will first discuss the issue of funding by a third party, and we will address the issue of agreed compensation later in our discussion of Himanuta's appeal.
[Side note: There are a number of other differences between the original version of the settlement agreement and its final version. Some of the changes are updates related to developments in the criminal proceedings. In addition, the date of the payment of $13 million was updated by the Patriarchate. It was determined that this payment would be made 45 days from the date of signing the settlement agreement, and this would have passed 7 days from the date of the issuance of the letter of recognition as stipulated in the original version, a date that had become irrelevant since the letter of recognition had already been given on December 24, 2007. Another change stipulated that the settlement agreement would replace any previous agreement made between the parties prior to the date of signing the settlement agreement. These and other differences were not mentioned in the judgment of the trial court, and the parties did not argue about them in the appeal before us, and we did not mention them except for the sake of the completeness of the picture].
- The Patriarchate argues in its summaries in the appeal that in the period following the meeting of the reading of the particular, following negotiations that took place between the parties in 2008, "material changes were made to the draft agreement", and refers to the judgment of the trial court (at paragraph 141). In addition, the Patriarchate clarifies that although it conducted negotiations in parallel with the sale of the rights in the land to a third party (the Sofer Group), these negotiations were unsuccessful, and according to it, the negotiations conducted with Himanuta in the period after the reading of the details did not mature into the signing of the settlement agreement.
- First of all, it should be said that unlike the manner in which the Patriarchate presented the matter, the trial court did not rule that "material changes" had been made in the settlement agreement. On the contrary. The trial court ruled that at the time of the reading of the particulars, "the settlement agreement was drafted in a final and agreed-upon manner with all its appendices," while adding, "in parentheses," that "additional amendments were indeed made over time, however, there is a certain logic in the introduction of changes Easy and tailored After a significant amount of time has passed, and this vision has not been breached, in an ongoing negotiation, especially in view of its essence and purpose to regulate business relations, when various considerations and political interests are involved" (paragraph 141 of his judgment, emphasis added - 10). Thus, there were no "material changes" in the wording of the settlement agreement, but rather "minor and adapted changes" in view of the passage of time.
- The Patriarchate is of the opinion that the trial court erred in ruling that its withdrawal from the negotiations with the JNF was done in bad faith, after the court was convinced that the financing of the payment by a third party was not made a condition for entering into the settlement agreement. And this is her argument in its own words (the emphases below are all in the original):
"This is a mistake that mixes a signed agreement with a draft agreement that was not signed. If an agreement had been signed and after the signature, the Patriarchate would have claimed that receiving funding from a third party constitutes a condition for payment, there would have been room to examine whether this is a condition of the billing agreement. However, in our case, there is no dispute that an agreement was not signed. In any event, even if the draft agreement did not contain a clause relating to the financing of the transaction at all, a party may withdraw from negotiations and refrain from signing on the grounds that the financing party withdrew from the funding, provided that this is not a 'false story' on its merits" (paragraph 10 of the Patriarchate's summaries in the appeal).