Summary of the Patriarchate's Appeal (Civil Appeal 1463/22)
- The Patriarchate's appeal focuses on the trial court's determination that the Patriarchate withdrew from the negotiations in bad faith, and that it was obligated to pay subsistence compensation as a result. Essentially, it was argued that the Patriarchate did not act in bad faith when it withdrew from the negotiations because it had practical and legitimate reasons to do so, first and foremost - The fact that a third party that was supposed to finance the settlement amount withdrew its intentions; that this is a deal that is not good for the patriarchy, which constitutes an attempt to exploit its weakness, and therefore its withdrawal from the negotiations cannot be seen as bad faith; and that even if the actions of the Patriarchate amount to bad faith, this is not a case that justifies a ruling on subsistence damages, since it is not possible to determine that the lack of good faith of the Patriarchate is the sole cause of the failure to conclude a binding contract, the circumstances of the matter do not give rise to a "cry of fairness", and at this stage it was not possible to know under what conditions the binding agreement would have been concluded, if such had been concluded.
It was further claimed that Himanuta was the one who acted improperly by refusing to delete the warning note that was fraudulently recorded and by exerting improper pressure on the Patriarchate to enter into a compromise agreement with it that is contrary to public policy; that the trial court erred in the interpretation of the particular, which explicitly determined that only a physical signature would lead to the perfection of the agreement; that the Patriarch was not authorized to commit on behalf of the Patriarchate without the Declaration of Recognition; and that the preliminary conditions for the agreement were not fulfilled - it was not proven that the approval of the authorized bodies in the JNF was given, the approval of the Holy Synod was given only with respect to the financing of the settlement amount by a third party but not with regard to the signing of the agreement, and the letter of recognition was given only after the date set out in the details had passed. Finally, the Patriarchate argued that the proceeding should be postponed because of the timing of its submission, which amounts to abuse of legal proceedings; and that, alternatively, the sum of the sums collected from the additional defendants in the preliminary proceeding should be deducted from the amount in which the Patriarchate was charged.
- On the other hand, Himanuta argued, inter alia, that contrary to the claims of the Patriarchate, the conditions set out in the particular, including the granting of the approval of the Synod, were fully met; that the obligation to sign the settlement agreement is a contractual obligation; that the evidence and testimonies indicate that the patriarchate acted of free will and for economic and political considerations; that there were no material disputes that had not yet been agreed upon between the parties, as claimed by the Patriarchate, and that already on March 12, 2007, the settlement agreement was drafted in a final and agreed-upon manner; that Himanuta had announced without any delay that it was insisting on the fulfillment of the settlement agreement and had informed the court hearing the Patriarchate's lawsuit; and that some of the Patriarchate's claims should be rejected as they constitute an expansion of a prohibited front, including the claims of exploitation of the Patriarchate's distress, that the agreement contradicts public policy or discriminates, that Himanuta acted in bad faith, and more.
- In its reply summaries, the Patriarchate reiterated its arguments, including that there is no basis for Himanuta's claim that a binding contract was entered into between the parties, since the judgment of the trial court was based on withdrawal from negotiations; that awarding subsistence damages by virtue of bad faith in negotiations will be made only in rare cases that meet the condition of the "cry of fairness"; that in accordance with clause 6.1 of the Particular, the sophistication of the Agreement requires a physical signature; and that Himanuta's claim for the expansion of a prohibited front is fundamentally wrong.
Summary of Himanuta's appeal (Civil Appeal 1467/22)
- Himanuta's appeal focuses on the agreed compensation set out in the particular, according to which for every delay in payment of the settlement amount, an annual dollar interest rate of 8% will be paid. It was argued, inter alia, that the trial court erred when it decided to intervene in the agreed damages, certainly where the patriarchate did not raise arguments against the agreed interest in the statement of defense, but for the first time in its summaries; that he should have at least used his authority to reduce the amount of the agreed compensation instead of cancelling them completely; that the Patriarchate's argument that the amount of interest should be reduced due to the length of time the proceeding is ongoing cannot stand, since it is the Patriarchate itself that is responsible for the delay; and that, alternatively, Himanuta is entitled to at least interest according to the law.
- The Patriarchate argued that Himanuta's appeal should be rejected. Among other things, it was argued that once the subsistence compensation was awarded due to lack of good faith in the negotiations, and it was not determined that a binding contract had been concluded, there is no room to award agreed damages that were not perfected at all; that there is no reasonable relationship between the "damage" that will be caused to the count, which has not been proven to exist at all, and the amount of the agreed compensation; and that when the injured party himself contributed to the delay in payment of the compensation to which he is entitled, there are considerations that justify a reduction in the compensation, and the discretion is left to the court.
- In the summaries of her reply, Himanuta reiterated her arguments, arguing, inter alia, that the determination of the trial court that a binding contract was entered into is not an incidental remark as claimed by the Patriarchate, but rather a conclusion of legal significance; that a subsistence compensation ruling resurrects the laws that apply to breach of contract, and therefore also allows for the award of agreed damages; and that it is certainly not possible to avoid any interest ruling in the framework of the judgment.
Discussion and Decision
- The 2000 fraud scandal and the events that followed may remind the reader of Dan Brown's book The Da Vinci Code, and the reader should not be surprised if he finds himself walking in his imagination through the chilly and dark corridors of the Greek Orthodox Church, searching for the Holy Grail and the Patriarch's seal. Reading the decisions made throughout the present proceeding, and after examining the arguments of the parties and the evidence material, it is even difficult to ignore the feeling that the picture that was revealed to the court is a partial picture that does not shed light on all the events, circumstances, interests and motives of each of the actors in this complex affair, which mixes the criminal world with the world of religion and the conduct of business in real estate assets of huge value in Jerusalem (see, for example, The words of the District Court in the judgment in the criminal proceeding, which found it appropriate to note that It is not possible to rule out the involvement of elements within the walls of the Patriarchate in the acts of fraud (paragraph 360 of the judgment)).
Unfortunately, we will not be able to remain in the world of suspense and mystery literature, and we are doomed to return to the depths of the proceedings before us, which at the end of the day revolves around "generic" legal issues of entering into a contract and breaching it.
- A reading of the arguments of the parties in the District Court and in the appeal reveals two quite different narratives as to the circumstances surrounding the engagement between the parties.
The Patriarchate presented itself as a victim of the original fraudulent transaction and as someone whose lands were (almost) stolen by the JNF and Himanuta. According to her, the JNF and Hemanuta were "grossly negligent" towards her in their involvement in the fraudulent transaction and were "accomplices in the contempt for the rights of the Patriarchate and its property"; perhaps they were behind "an improper attempt to concoct such a dubious deal behind the backs of the patriarchate and its institutions"; They also sinned by not taking action to delete the warning notes immediately when the fraud became apparent. The Patriarchate also claimed that the compromise outlineֱG. "in an attempt to exploit the weakness of the patriarchy so that 'the Christians will pay what the Jews stole or received and refused to return,'" and oblige the patriarchate "to pay the money stolen by some good Jews through the gross negligence of a few other good Jews." According to the Patriarchate, this is a "cynical exploitation of the weakness of the Patriarchate"; "These are 'methods' of the underworld and not of a state or just people"; and that if an agreement had been signed between the parties, this would have imposed on the state "the mark of Cain of an attempt to oppress a weak religious minority" and there would even have been room to discuss claims of coercion, oppression and public policy (I will refer to, inter alia, chapters a, b(1)-b(3) to the summaries of the patriarchy in the District Court; paragraph 10 of the notice of appeal).