In addition to the above, between the Weinroth Group and the "KKL-JNF Group" (KKL-JNF and Himanuta), mediation proceedings were held before the Honorable Judge (ret.) T. Or, at the end of which the parties reached a settlement agreement under which the Weinroth Group paid the JNF Group a total of $5.5 million. This agreement was submitted to the trial court and received the force of a judgment on January 14, 2013.
- The trial court ruled that of the sums to which the defendants were charged In tort In the judgment (defendants 1 and 4 and defendant 3, who were charged in the sums of $20 million and $4.5 million, respectively), the sums paid by the other defendants (defendants 1-17) will be deducted, and the sums of money seized or paid to be counted in connection with the real estate transaction will be deducted until the date of the judgment (paragraphs 221, 230 of the judgment).
It should also be noted that in a ruling submitted to the trial court and approved by the court, the sum paid by the Weinroth Group in the amount of $5.5 million, as well as the amount charged by the Patriarchate in the amount of $13 million, was deducted from the amount awarded to defendants 1 and 4.
- The essence of the Patriarchate's argument is that from the sum of ₪13 million that it must pay, the amount collected by Himanuta from the Weinroth Group (₪5.5 million) and the amount collected from two other defendants after the amendment of the statement of claim (ILS 2.3 million from defendants 9 and 12) should be deducted.
[Terminological note: The Patriarchate used the term "offset" and argued that "all sums collected by Himanuta from other defendants must be deducted after the date on which the negotiations were conducted in relation to the settlement agreement" (paragraph 31 of its summaries). And to be precise: Offset is the union of two independent charges, and in the context of The Contracts Law The offset is made between different charges originating from the same transaction (Section 53(A) of the Contracts Law; Hello Lerner Offset charges 42 (2009)). In this case, we are not dealing with independent obligations between the parties, so we are not dealing with an offset, but with a deduction or reduction].
- At this stage, we will return for a moment to the contacts that took place between the JNF and the Patriarchate after the break-up of the particulars and before the relations between the parties ran aground. The final version of the settlement agreement (April 2008) was supplemented with a version of the Letter of Protest (Appendix 7 to the Patriarchate's appeal). According to the letter of check, in exchange for receiving the payment in the amount of $13 million from the Patriarchate, the JNF and Hymanuta were supposed to assign to the Patriarchate any right or claim they had against the Weinroth Group in connection with the land affair. According to Adv. Weinroth's testimony, this issue arose from the very beginning as a precondition on the part of the Patriarchate for the settlement agreement, according to which the JNF would waive any claim or claim against Weinroth. For this purpose, the letter of check was intended, by means of which the rights of the JNF towards Weinroth were assigned to the Patriarchate, and the latter was supposed to Exemption Weinroth (paragraph 39 of Weinroth's affidavit; transcript of February 15, 2018, p. 84; see also the proposed text that Adv. Mograbi forwarded to Adv. Elhanani dated April 1, 2007, Appendix 25 to the Patriarchate's appeal).
The problem is that the settlement agreement was not signed, the Patriarchate did not pay the JNF the $13 million, and Hymanuta filed its claim in the trial court, in which, as stated, the Weinroth Group was included as a defendant (defendants 18-22). As noted above, following the filing of the lawsuit, a mediation proceeding was conducted between the Weinroth Group and the KKL-JNF Group that gave rise to a settlement agreement, pursuant to which the Weinroth Group paid the JNF Group a total of $5.5 million.
- Interim Summary: KKL-JNF "lost" $20 million as a result of the fraudulent deal; Later, she managed to get her hands on $7 million and get it back into her hands; The settlement agreement with the Patriarchate is intended to restore the $13 million difference; and during the proceedings in the District Court, she was returned an additional ILS 2.3 million, as well as ₪5.5 million from the Weinroth Group (in addition to additional sums that it was able to collect and which led to a significant reduction in the amount of the claim, sums that the parties did not claim in the appeal before us).
It also appears that if the settlement agreement had been executed and the Patriarchate had paid the JNF $13 million, then the JNF would have waived its claims against the Weinroth Group (while preserving its rights vis-à-vis third parties) and assigning its rights to Weinroth to the Patriarchate, which in turn would have been supposed to exempt Weinroth from replying. However, the settlement agreement was not signed and was not executed, and as a result, the Weinroth Group paid the JNF Group a total of $5.5 million by virtue of a settlement agreement reached by the parties at the end of a mediation proceeding. This is while preserving the right of the Weinroth Group to request that it receive back this sum (in whole or in part) in the event that the JNF Group repays the Patriarchate on the basis of its claims regarding the settlement agreement under which the Patriarchate was supposed to pay it $13 million.
- Let us now turn to Himanuta's arguments. The summaries submitted by Himanuta-the plaintiff to the trial court ended with reference to the question of the relationship between the amount of the judgment and the amount of the claim and the amounts collected from the additional defendants, as well as the question of the relationship between the amount of the judgment and the arrangement with the Weinroth Group. We will discuss the main points of her arguments.
As to the question of the relationship between the amount that the Patriarchate will be charged and the amounts collected from the other defendants, Himanuta argued that in the settlement agreement with the Patriarchate, its full rights vis-à-vis the other defendants were preserved, so that "alongside receiving payment from the Patriarchate under the Settlement Agreement, [Himanuta is entitled] to exhaust its rights against defendants 1-17 Until the full amounts of the damage caused to it are collected". It was further argued that the Patriarchate's undertaking in the settlement agreement is a contractual undertaking, which was given with the knowledge that there are additional tortfeasors that Himanuta has sued or intends to sue, and with the agreement that the settlement agreement does not prevent Himanuta from exhausting its rights vis-à-vis them (paragraphs 367-368 of Himanuta's summaries in the District Court, emphasis added - 11). Himanuta continued: