Moreover, if the parties' agreement on this matter was indeed perfected, a few years earlier, it is not clear how there was a dispute between them in 1986, on the same point. It is interesting to note that in the affidavit of respondent 5 it was not claimed that in view of the appellants' position, Mr. Shatil claimed that in the past an agreement had been reached on this point between the parties. There is also no argument on the part of respondent 5 that Mr. Shatil resented on that occasion the appellants' alleged withdrawal of such consent. Against this background, serious doubts are cast over the respondents' version, as if such an agreement was formulated as early as 1983.
III. It should also be noted in this context that in the letters sent to the Betterment Tax in 1986by
Respondent 5 (Exhibit P/4B in the trial court) mentions the company's undertaking to provide the appellants with three apartments. And in the appellants' letters from 1987 to the company, they insist on their right to receive the third apartment, without a response from the company to these letters, as if a different agreement had been reached. They also support the position of the appellants, who deny the claim that some agreement was reached in 1983, in which they gave up a third apartment.
- To all this, it should be added that the appellant denied in his affidavit that was submitted as a primary witness on behalf of
The appellants agreed with each of the aforesaid, and this was also argued in his testimony in court in supplement to his main interrogation. In the cross-examination, the appellant was not asked any questions on this matter. The trial court, as we have already noted above, did not base its determinations on findings of reliability, and did not reject this testimony.
- And more. As mentioned above, also according to respondent No. 3's version, when they waived
Their right to a third apartment and security from the company The appellants claimed that they were entitled to compensation from the company, because the area of the apartments they received from the company was about 60 square meters smaller than the area to which the company undertook in the contract and in the addendum thereto. Assuming that the price of an apartment with an area of about 100 square meters that is the subject of the contract was about $110,000-000 on the day the claim was filed, according to the appellants, this is a claim for compensation of at least about $50,000. What motivated the appellants to waive their contractual right to collateral that would secure this alleged debt of the company towards them? No explanation was offered by the respondents to this perplexity either. Against this background as well, it is very difficult to accept the respondents' version that the appellants waived their right to security.
- The aggregate result that arises, therefore, from the analysis of the evidence at this point, shows
that it is not possible to accept the respondents' version that the appellants waived their right to a third apartment, and that in view of this waiver they also waived their right to security from the company.
- Before I examine the legal liability of the various respondents towards the appellants, I will briefly address the reasons that motivated the court to accept the respondents' arguments on the question of The appellants' waiver of the third apartment and their right to a mortgage on the collateral property.
First, with regard to the delay in filing the claim by the appellants. In my opinion, in view of the appellants' oral and written requests regarding their right (see, in this regard, for example, the appellants' letter to the company dated 15.4.87, Appendix A/ 5To the affidavit on behalf of the appellants in the trial court), it cannot be concluded from the stay of the claim that the appellants waived any rights granted to them under the agreement with the company. In this context, I will further note that the appellants had an explanation for the delay in their action. The appellant testified explicitly that he was not aware that a warning note was not registered in favor of the appellants' right to the collateral property. The absence of a warning registration and a pledge of the collateral property to Mizrahi Bank became known to the appellants only years later when a dispute arose between the parties, and a lawyer who acted on behalf of the appellants discovered this when he checked the registration at the Land Registry Office.