Mr. Kiselowitz: That's right, I didn't argue and we did it.
...
Q: You also said earlier that you confirmed earlier that you can make such a machine, which is what you told Ziv.
Mr. Kiselowitz: What do you mean, I don't understand you, do you think I'll agree to go into a project and tell him that I don't know what to do, so how do I get into it? Of course I know, I know how to make machines.
(See: Minutes of the hearing of December 1, 2024; p. 141, lines 11-13, 23-25)
- 46. From the aforesaid it appears that even according to Kiselowitz's own approach, the parties assumed that the defendant would be able to manufacture the machine that is the subject of the agreements, and that within the framework of the agreements the defendant even undertook to manufacture the machine, and not only to try to manufacture it.
- Second, even from the conduct of the parties after the relationship ran aground, it appears that the defendant recognized that her undertaking in the framework of the agreements was to manufacture the machine and supply it to the plaintiff, and that if she failed to do so, she was required to return to the plaintiff the sums paid by the plaintiff by virtue of the agreements.
- For example, in an e-mail correspondence sent to Hamami by Ms. Dafna Kiselowitz, one of the defendant's owners and Kiselowitz's wife, on December 31, 2018, she noted that: "... In any case, you are right and we will refund the sum of 1,588,170... I hope that this is how we will end this saga"; And later: "Ziv, I want to close the issue. and refund you the entire amount you paid up to the last penny. You must take into account that Yad has also been harmed by the many investments we have made here and the consequences for them" (see: Appendix 9 to Hamami's supplementary affidavit of March 15, 2023). From these words it emerges that Ms. Dafna Kiselowitz recognized the defendant's obligation to return to the plaintiff the sums paid by the plaintiff by virtue of the agreements, and that the defendant's mere investment and effort in the project does not lead to the conclusion that she met her contractual obligations.
- In addition, in an e-mail correspondence dated June 28, 2016, Kiselowitz wrote to Hamami, "True, I promised you times and I will not meet them" (Appendix 6 to Hamami's first affidavit dated August 17, 2020). In other words, according to Kiselowitz himself, he undertook to provide a result within an agreed time frame, and not just to try to provide it or make an effort to meet the deadlines.
- In addition, in a conversation that took place between Adv. Shmuel Lahav (Hamami's attorney at the time) and Kiselowitz on December 9, 2018, which was recorded and transcribed, Kiselowitz said the following:
"... Look at the fact that the court tells him that he is right, I don't have a case here, I don't have a case. If I had a case, I would still say, Bona, there's some kind of case here. What case? What am I going to start arguing with now? Nothing came out of it, I know from it. In general, technically he's right, he paid money for a certain consideration and didn't get that point. So it's true that I can come and say, listen to the fact that he agreed to it and the fact that he was with me and he was a partner in it and I promised that it was his project and I was developing it only for him and he took part, as if for that matter, he has part of the risk and he didn't allow me to sell it to anyone else. I can come and you know and we can apply this sentence to a great God, I don't know where. I don't want to go to this place, because I think he was Pierre with me. That's all. And because he was Pierre with me, it hurts my heart to be a maniac. But I'm not like that, I'm not like that in my nature...