It should be noted that the trial court refrained from determining any findings of reliability regarding versions
The parties at this point.
Ultimately, the court's conclusion was that the appellants had only a cause of action against the company (para. 13To the Judgment). Since the company was not sued, the claim against all the defendants, the respondents in this appeal, was dismissed.
- In their arguments before us, the parties stand, in essence, the arguments that were made
by them in the first instance. We will now discuss the main arguments that arose in the appeal.
The appellants' waiver of the collateral
- As described above, the appellants' claim is based on the fact that they suffered damage, due to the fact that the respondents caused a situation in which the appellants do not have security that would ensure the fulfillment of the company's obligations to them. This situation was caused by the registration of a mortgage in favor of the United Mizrahi Bank on the property, which was intended to guarantee the rights of the appellants.
At this point, respondent No. 3 claimed in his affidavit that the appellants had agreed to the registration of the mortgage
The aforesaid, against the background of the fact that the two apartments they received from the company exceeded in value and size the consideration agreed upon between the parties. His version was that the value of these two apartments was equal to at least the value of the three apartments that the appellants were supposed to receive from the company under the contract. According to respondent No. 3's version, in a meeting that took place between him and the appellant, the appellant replied to this argument that "the plaintiffs still lack about 45 square meters and therefore he is entitled to compensation." Respondent 3 argues that against this background, it was agreed between the parties that the appellants would not receive a third apartment, but that a reckoning would be made between the appellants and the company, and that the party who would be found entitled to this by account would receive what he was entitled to. Respondent 3 further argues that in view of this summary, the appellants agreed, according to the argument, that the collateral asset would be mortgaged in favor of Mizrahi Bank. This is how this found expression in the affidavit of respondent 3:
- In light of the dispute as stated above, it was agreed between us, in the presence of the late Adv. Eliezer Toister, that the subject of the dispute between us would be decided by way of calculating the value of the additions as opposed to the value of the missing area, and whoever would be entitled to the balance would receive from the other party what he was entitled to.
- It was also expressly agreed that since we had given the plaintiffs more than 255 square meters out of
The 300 square meters that we were obligated to hand over to them, the plaintiffs will not be given a third apartment