"Without derogating from the aforesaid, in order for the plaintiff not to benefit from the very violation of the patriarchy, and since if the settlement agreement had been signed and fulfilled in real time, the plaintiff would have assigned to it its rights vis-à-vis the Weinroth Group (and even though the patriarchate would not have exercised these rights), if the court accepts the plaintiff's claim against the patriarchy in full, including the amounts of the contractual interest as aforesaid, which are intended to compensate the plaintiff for the period of time that has elapsed since the date of payment and the lengthy and complex proceedings that she was forced to conduct, In a manner that in effect places the plaintiff in a situation equivalent to a situation in which the Patriarchate would have fulfilled the settlement agreement on time, and only in such a case will it be appropriate to determine that the plaintiff's rights vis-à-vis Adv. Weinroth will be assigned to the Patriarchate against payment of the amount of the judgment, in accordance with the said agreement.
In such a case, and only in that case, there will be room to view the sums paid by the Weinroth Group to the plaintiff as sums paid to it by the Patriarchate under the Settlement Agreement on the dates on which they were paid, and these will be deducted from the Patriarchate's obligation to pay, and from those dates they will cease accruing the contractual interest" (paragraphs 378-379 of its summaries).
- The District Court rejected the Patriarchate's claim for deduction of the sums collected from the additional defendants, on the grounds that the cause of action for charging the Patriarchate is contractual and rooted in the settlement agreement, and this is not a tort claim in which the Patriarchate was sued jointly and severally with the other wrongdoers as a joint tort. With regard to the arrangement with Weinroth, the court sufficed with the determination that it was not persuaded to "order the assignment of the plaintiff's rights vis-à-vis the Weinroth Law Group", because the parties were not given a fair opportunity, in the procedural and substantive aspect, to argue the matter, and since the issue "was not clarified in order to be able to decide it" (paragraph 173 of the judgment). The patriarchate, naturally, undermines these assertions.
- It is not for nothing that we have quoted above parts of Himanuta's arguments in the District Court, since it seems that the entirety of her arguments raises a certain difficulty. On the one hand, Himanuta acknowledges that it is not supposed to receive more than $20 million (estimated) in its lawsuit and that the compensation to be borne by the Patriarchate is intended to improve this damage; On the other hand, Himanuta admits that if the Patriarchate had upheld the Settlement Agreement, it would not have sued the Weinroth Group at all; On the other hand, Himanuta objects to the deduction of the sum paid by the Weinroth Group from the compensation to be borne by the Patriarchate, as well as to the deduction of the sum of approximately ILS 2.3 million collected from the other defendants; On the fourth hand, Himanuta argues that if its claim against the Patriarchate is accepted in full, including the contractual interest (the agreed compensation), then the amount paid by Weinroth should be deducted from the compensation to which the Patriarchate will be obligated and Himanuta's rights vis-à-vis the Weinroth Group should be assigned to the Patriarchate, so that Himanuta would not benefit from the violation of the Patriarchate.
- Personally, I found it difficult to accept Himanuta's proposition that connected the question of the agreed compensation to which the Patriarchate would be charged or not (the annual dollar interest rate of 8%), and the question of whether the sum of $5.5 million paid by the Weinroth Group to the JNF as part of the settlement agreement between the two should be deducted. On the face of it, we are dealing with two separate issues. The agreed compensation component is intended to compensate Himanuta for the delay in payment of $13 million agreed upon with the Patriarchate; While the sum paid by the Weinroth Group was intended to indemnify the JNF Group for part of the damage caused as a result of the fraud affair. Although the two issues have implications for the amount of total compensation that will reach the JNF and Himanuta, there is no material connection that creates a reciprocal relationship between them. In short, the answer to the question of whether the amount paid by the Weinroth Group to the KKL-JNF Group should be deducted from the amount that the Patriarchate must pay to Himanuta should not be derived from the question of whether Himanuta is entitled to the agreed compensation set out in the settlement agreement between it and the Patriarchate.
In addition, it is not entirely clear why, if the Patriarchate had upheld the settlement agreement, then the JNF and Yamnota would have refrained from suing the Weinroth Group and would have made do with the $13 million paid by the Patriarchate; Now, since the settlement agreement has not been fulfilled, Himanuta is entitled to $13 million from the Patriarchate In addition to to $5.5 million paid to it by the Weinroth Group. Another point that was not clarified and which the parties did not claim is the $7 million IPOs that the JNF allegedly managed to return to it before the settlement agreement with the Patriarchate.
- Despite these questions, I too have come to the conclusion that the sums received by Himanuta should not be deducted from the amount of compensation to which the Patriarchate should be obligated. The reason for this lies in the fact that the obligation of the Patriarchate to pay the compensation in the amount of $13 million is a contractual obligation by virtue of the Settlement Agreement, and this is not a tort claim in which all the wrongdoers are sued jointly and severally. This distinction between the payment to be borne by the Patriarchate by virtue of the Settlement Agreement and the right of the JNF Group to be repaid from the other wrongdoers was even explicitly expressed in the original version of the Settlement Agreement that was attached at the time to the Detail (Draft A), as well as in the final version of the Settlement Agreement that was prepared for signing. Thus, in clause 7.2 of the original version, it was clarified that "all the rights and claims of the JNF in connection with the land affair are reserved against any party that was involved in or connected to it, in any way, including, but not limited to, the return of all the monies paid in connection therewith by the JNF and/or compensation for the damages and expenses caused to the JNF as a result of and/or in connection with it." In addition, in clause 9 of the settlement agreement, it was determined that "for the avoidance of doubt: the provisions of clause 8 above shall not derogate from the rights of the JNF towards any third party that was involved, directly or indirectly, in the land affair, for the return of the funds paid in connection therewith by the JNF and/or for compensation for the damages and expenses caused to the JNF as a result of or in connection with it. And these rights are fully protected by the JNF." As noted, similar provisions were set out in the last version of the settlement agreement (clauses 7.6-7.5, 9).
In these circumstances, the amount that the Patriarchate is required to bear and the various sums paid to the JNF and Trustee by other defendants should not be regarded as a "single piece", since a contractual obligation is not the same as a tort obligation (see and compare to the judgment of Judgment 2Civil Appeal Authority 4474/20 Nun v. Hershkovitz [Nevo] (November 1, 2020), where it was held that When a tort proceeding ends with one wrongdoer in a settlement agreement for the damage caused by him, this does not affect the amount of compensation that can be collected from the other tortfeasors for the damage caused by them). To be precise: this does not mean that Himanuta will be able to be repaid in the framework of the proceeding in an amount exceeding $20 million (estimated). As stated, she herself clarified this in her summaries in the District Court, and from the ruling she submitted to the District Court, it appears that these sums were deducted from the charge imposed on defendants 1 and 4. However, this "ceiling" of the amount of the claim does not necessarily translate into the deduction of the sums paid by the other defendants from the payment you will bear The Patriarchate By virtue of The Contract between it and Himanuta.
- With regard to the arrangement that was made with the Weinroth Group and the check letter that was supposed to be given to him, I will not deny that I was disturbed by Himanuta's clarification in the District Court that if the Patriarchate had fulfilled the settlement agreement and paid the sum of $13 million, the KKL-JNF Group would not have sued Weinroth at all, but would have assigned its rights against him to the Patriarchate (which was ostensibly supposed to exempt the Weinroth Group from payment). While Himanuta is now "credited" with both sums: $13 million from the Patriarchate + $5.5 million from the Weinroth Group (although these sums were deducted from the charge imposed on defendants 1 and 4). Added to this is the difficulty in Himanuta's position in the District Court, which we discussed above, that it was willing to deduct the amount paid by the Weinroth Group from the total compensation to be paid by the Patriarchate, had its claim been accepted in full, including the contractual interest component (the agreed compensation).
Despite these difficulties and question marks, this does not change our conclusion. First, Himanuta's aforementioned clarification in the District Court referred to a theoretical situation in which the Patriarchate would have signed and fulfilled the settlement agreement, and we will recall that the last version of the settlement agreement was accompanied by the letter of check in question intended to exempt Weinroth. However, the theoretical situation described was never realized, and just as we did not find it appropriate to enforce on the parties the agreed compensation clause that was added to the final version of the settlement agreement (which was never signed), so the parties should not be enforced, within the framework of the appeal at hand, the assignment of the right of the KKL-JNF group towards Weinroth to the Patriarchate, while deducting the amount he paid from the amount of compensation that the Patriarchate must bear.