It is clear from these statements that at the stage when the claim was filed, and despite the fact that three years had passed from the agreed date of delivery of the first unit, this unit did not succeed in producing the product as required and agreed. Although the defendant attributes the lack of success to the type of paper and cardboard supplied by the plaintiff, it is not clear why the defendant, as an expert and knowledgeable in the field of packaging machinery engineering, did not find suitable solutions, or defined in advance the types of paper and cardboard required for the production of the machine as agreed.
- Third, and this is the main thing, the plaintiff's evidence shows that a few months before the filing of the claim, and about two years from the agreed date for the delivery of the first unit in the machine, the machine was not ready to be delivered functionally and in accordance with the agreed specifications. In fact, it is highly doubtful whether the machine has been able to produce any product at this point.
- Thus, the plaintiff attached a video and transcript of two meetings that took place between the parties – one on November 6, 2018 and the other on November 22, 2018, a few months before the filing of the lawsuit. The meetings were held at the defendant's factory, in the presence of Kiselowitz, Hamami and his former counsel (Adv. Lahav). The video was transcribed (see Appendices 5 and 7 to Hamami's supplementary affidavit of March 15, 2023). An examination of the video and transcripts shows that at the stage when the meetings were held, about two years after the agreed delivery date, the first unit (assemblies A+B) was not ready and did not act as required and in accordance with the agreement.
- For example, see what was said at the meeting on November 6, 2018:
"Yaakov Kiselowitz: If it works, yes.
Adv. Lahav: Just a second, is it produced at a rate of 100 to 120 per minute?
(Talking Together)
Yaakov Kiselowitz: Right now, I've managed to get to 100 120 and my papers are torn..." (See: Appendix 5 to Hamami's supplementary affidavit, p. 36, lines 10-13).
- Further, Kiselowitz noted that as long as Hamami brought him the paper rolls he ordered, it would be possible to operate the machine ("Paper rolls. I would be very happy for you to bring them to me and we will run the Galilee, with your paper rolls" (See: Appendix 5 to Hamami's supplementary affidavit, page 36, line 18). Therefore, another meeting was scheduled for November 22, 2018, in the presence of the parties and Hamami's previous counsel.
- At the beginning of the second meeting, Hamami noted that the purpose of the meeting was to examine the production line of cigarette rolling papers, and to examine whether the production line was working. Later, Kiselowitz is seen trying to operate the first unit of the machine for many minutes. The machine appears to be running, but the papers fed into it get stuck and tear. Adv. Lahav notes later in the video as follows:
"We're in a Lidd factory. The machine, the production line is visible in the background... We've been here since 11 o'clock, until now, for an hour and five minutes, the machine still doesn't work. In the background you can see Yaakov Milad Technologies trying to operate the machine and bring it to a situation where it will be possible to run the experiment, so far without success..." (See: Appendix 7 to Hamami's supplementary affidavit, p. 46, lines 6-11).
- Following this, Kiselowitz is heard explaining why the machine (at this stage, as mentioned, it is only the first unit - assemblies A+B) fails to produce the packaging of the rolling papers:
"Yaakov Kibelovitz: Yes, it came in. Do you see how it comes in? It goes in there, but what happens. Oh, I can't make it. You see? That's Interpol, that's what actually comes out. What's happening, because I can't get to the center, ... Then they fold up nicely, ... As soon as they fold up nicely, they don't fit into my carton as well as I would like. That's the point. (See: Appendix 7 to Hamami's supplementary affidavit, p. 46, lines 18-24).