On the basis of this conclusion, the District Court ruled that the Patriarchate must compensate Himanuta with monetary compensation in the amount of $13 million, in accordance with the alternative set out in the settlement agreement (Draft A), according to the exchange rate on the day of the judgment. It was determined that this payment must be made within 60 days from the date of the judgment, plus interest and linkage from that date until the actual date of payment. In addition to the aforesaid, the District Court rejected Himanuta's argument that the Patriarchate should be obligated to pay the agreed compensation set out in section 11 of the Settlement Agreement, in the form of an addition of dollar interest at the rate of 8% per annum for any delay in payment, in the absence of a reasonable proportion to the damage and taking into account the totality of the circumstances of the case. In addition, the court ruled that payments that Himanuta received from other defendants should not be deducted from the amount of compensation.
- As detailed in detail above, my conclusion is different from that of the trial court, and in my opinion, the particulars should be viewed as a valid contract that stands on its own. This determination naturally has implications for the remedy that should be ruled in favor of Himanuta. This is because once we have before us a valid contract that is enforceable, we can "suffice" with the enforcement remedy, and we are not required to resort to the path of awarding subsistence damages due to a breach of the duty of good faith at the negotiation stage by virtue of Section 12 Law The Contracts And you went Cal Building, a path reserved for exceptional cases and exceptional situations that must be walked with great caution (Civil Appeal 6370/00 Easy Building on Appeal Taxes v. A.R.M. Ra'anana Construction & Rental Ltd.IsrSC 56(3) 289 (2002); Yes they saw Civil Appeal 8144/00 Alrig Properties (1987) inTax Appeal V. Brainer, IsrSC 57(1) 158 (2002); Civil Appeal Authority 235/12 Gilboa Iris in Appeal Taxes v. Omer Engineering Ltd., paragraph 9 and the references there [Nevo] (27.2.2012); Friedman & Cohen vol. 1, p. 753; Peaceful and Plant at pp. 136-140, and see the criticism of the rule that allows for the award of anticipation compensation by virtue of Section 12 Law The Contracts, ibid., pp. 140-143).
- In the circumstances of the case before us, the meaning of the enforcement remedy is to enforce on the parties the provisions of the Particular, i.e., to oblige them to sign the Settlement Agreement (Draft A) as they undertook to do in the framework of the Particular. Like the subsistence damages awarded by the trial court, the enforcement remedy was also intended to serve the interest of the contract, and from the moment the signing of the settlement agreement imposed a financial obligation on the patriarchy, the operative significance of the two remedies coincides to a large extent in the circumstances at hand: the patriarchate must pay the contractual consideration in the amount of $13 million, in exchange for the waiver and consent of the JNF and Trustee as detailed in the agreement.
- This is not the end of our discussion, and we must address two additional issues that are also in the realm of relief. The first issue is the component of the agreed compensation demanded by Himanuta and an interest ruling, an issue on which Himanuta's appeal revolves; The second issue is the Patriarchate's claim that sums that Himanuta was able to collect from other defendants should be deducted from the amount of compensation. We will discuss the two issues in their order.
Agreed Compensation and Interest Judgment
- The agreed compensation clause (quoted in paragraph 73 above) was inserted into the wording of the settlement agreement After Conclusion of the particulars, as part of the contacts that took place between the parties prior to the signing of the Settlement Agreement. This section provided that "Any delay in making the payment of $13 million will bear an annual dollar interest rate of 8%, without derogating from the JNF's right to any other or additional remedy". The trial court refrained from ruling in favor of Himanuta the agreed compensation component, even partially. This is the main point of Himanuta's appeal, which believes that it is entitled to this interest from the date on which the Patriarchate should have paid it the said amount, i.e., since 2008. It should be noted that a request to correct a clerical error submitted by Himanuta to the Court of First Instance regarding the interest ruling was rejected (decision of January 4, 2022).
- Section 15(A) Law The Contracts (Remedies for breach of contract), 5731-1970 (hereinafter: The Medicines Law) grants the court jurisdiction Reduce The rate of agreed compensation, "If he finds that the damages were determined without any reasonable proportion to the damage that could have been foreseen at the time of the conclusion of the contract as a probable result of the breach." In this regard, I had the opportunity to express My position is that the court is not authorized to reduce the agreed damages to zero (Yitzhak Amit "Agreed Compensation - Issues and Aspects" The Book of Gabriela Shalev - Studies in the Theory of Contracts 621, 634 (2021) (hereinafter: Associate)). Against this background, there is לכאורה The reason for Himanuta's argument is that there was room to rule in her favor of the agreed compensation determined in the last version of the settlement agreement, i.e., an annual dollar interest rate of 8%, at least at a reduced rate, and certainly not to ignore it altogether.
- The claim should be rejected. A prerequisite for the operation of an agreed indemnity clause is that the contract between the parties Valid, and the test that the court is required to apply when considering exercising the power of reduction is the test of the parties' expectations at the time of Conclusion of the Agreement (Associate, pp. 626, 634). In the case before us, the agreement entered into is DetailsAll - That did not include an agreed compensation clause. The Settlement Agreement (Draft A) that was attached to the Detail, which the parties undertook to sign, also did not include an agreed compensation clause (and we will recall that the text of the Settlement Agreement that was attached to the Detail was, at that time, a final and agreed version). In these circumstances, since we are dealing with the enforcement of DetailsAll and of the obligations determined by virtue of it, the obligations that were added to the final version of the settlement agreement following the later negotiations between the parties should not be imposed on the parties. This is sufficient to dismiss Himanuta's appeal with regard to the agreed compensation component.
- Himanuta raised an alternative argument in its appeal, according to which even if the agreed compensation was not awarded in its favor (or reduced), there was room to award interest in its favor according to Interest Rulings and Linkage Law, 5721-1961 (hereinafter: The Interest Ruling Law). In the circumstances of the case at hand, this argument is also liable to be rejected.
The Court of First Instance mentioned the case law that held that where a charge is in dollars, the rate of the charge in shekels must be determined according to the representative rate on the day the judgment is rendered, and until the date of the judgment Dollar interest must be added, and from the date of the judgment until the actual payment, interest and linkage must be added according to the Interest Ruling Law (Civil Appeal 4360/90 Bar Chen v. Kochavi, IsrSC 47(2) 311, 322 (1993)). If we apply this line to the state of affairs in this case, there would have been room to add a component of dollar interest to the sum of $13 million until the date of the trial court's judgment in December 2021 (and compare Appeal Civilian 3021/11 Hartavi-Bornstein-Basson & Co., Law Firm v. The Greek Orthodox Patriarchate of Jerusalem [Nevo] (19.12.2012) (hereinafter: the Matter Hartabi), where it was determined that the debt must be converted from dollars to shekels at the representative rate at the time the claim was filed, and from that date onwards interest should be added in accordance with the Interest Ruling Law).