Caselaw

Civil Appeal 4612/95 Itamar Matityahu v. Shatil Yehudit - part 23

October 17, 1997
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Therefore, the meaning of the provision of the section must be understood 3To the Addendum to the Contract, Against the Background of the Purpose of the Addendum and all its Provisions.  It is clear from the preamble to the addendum that in the addendum to the contract, the parties did not intend to bring about a material change in the amount of contractual consideration.  The reason for making the addition to the contract was a change in circumstances - an engagement between the company and Bank Leumi in a tax appeal - which led to a change in the building plan, and prevented the execution of the contract in the original way that the parties had determined for themselves.  This change in circumstances required the parties to determine a different way, which would fulfill the original contract.  This is the purpose for which the parties agreed on the addition to the contract.  This is explicitly evident from the introduction to the addition, in which it is stated that:

" ...As a result of a change in the parties, it is not feasible to execute the aforementioned agreement in the same way as set forth in the aforementioned agreement, although the mutual obligations specified in the aforementioned agreement can be executed in their entirety" (emphasis added).

These words shed light on the result intended by the parties in the provision of the 3To the addendum to the contract, ordering the deletion of clause 5To the contract.  They teach that the purpose of the provision of section 3, which is at the heart of the addendum, is to adapt the manner in which the contract was executed to the change that took place in the circumstances, which prevented the delivery of three apartments in the same building to the appellants.  It emerges from it that the parties did not intend to cancel the principle set forth in section 5, with regard to the size of the total area that the appellants would receive: the parties explicitly stated that they did not wish to change their original undertakings, but only to adapt their manner of execution to the new reality in which they operated.  It is clear, therefore, that there is no basis for what is implied by the appellants' arguments, as if they were expressed in the addendum to the contract any agreement between the parties regarding an increase in the contractual consideration to which the appellants are entitled.  The opposite is true: it was explicitly agreed upon, a change in technique, not substance.

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