And that's what I thought and said to myself, Ziv, I think, I'm sure, I can, I believe it's possible. Ok? And I failed in that part, okay? It might not have been another month, two more months depending on how much I invest in it. But the energy it consumes from me, the investments it consumes from me, are huge, they exhaust me mentally, physically, mentally..." (See Appendix 7 to Hamami's first affidavit, pp. 7-8; emphases added, to the Mishnah).
- From these words of Kiselowitz himself it emerges that the intentions of the parties at the time of signing the contract were indeed that the defendant undertook to provide "a certain consideration", but this consideration (the machine) was not ultimately provided. It also emerges from Kiselowitz's words that he did think, and it seems that he even told Hamami, that he had the power to bring about the result to which he had committed himself, and that he was unable to deliver the said result after such a long period of time, it means that he has failed.
- [I will note that in the later stages of the proceeding, the defendant made various arguments regarding the admissibility of the transcription of the said recording. Thus, for example, in the evidentiary hearing, it was claimed by the defendant's counsel that this was a secret recording made by a lawyer, and therefore it was argued that the said evidence should not be admissible. However, at no stage of the proceedings was an orderly and reasoned motion filed by the defendant to disqualify the evidence, and in fact this argument was abandoned in the framework of the defendant's summaries. In this state of affairs, I have not found it necessary to address and decide the defendant's arguments in this matter].
- In conclusion: From the language of the agreements and the rest of the evidence indicating the intentions of the parties at the time of the engagement, it appears that the defendant's main obligation in the framework of the agreements was Result Billing, in which she undertook to manufacture the machine and supply it to the plaintiff. The Parties Anonymous We intended to make do with the positive Effort, as the defendant now claims.
- Against the background of the aforesaid, the question that must now be examined is whether the agreements were breached by the defendant by not providing the said result, i.e., did the defendant manufacture the machine as undertook in the agreements and sought to supply it to the plaintiff, or did it fail to do so?
- Breach of the Agreement
- As will be clarified below, it appears that there is no dispute between the parties that the defendant did not succeed in producing the machine as a whole. In other words, even according to the defendant, at no stage was the machine with its two units and five assemblies ready to be handed over to the plaintiff. Thus, for example, in paragraph 9 of Kiselowitz's second affidavit dated June 21, 2021, it was noted that "Assemblies A and B were ready to be delivered to the plaintiff," while with regard to the rest of the machine, it was not stated that it was ready. In addition, in paragraph 22 of Kiselowitz's third affidavit dated July 24, 2023, he noted that "a balance paid for the advance of assemblies C, D, E, was offset and no payment was required for them Even though they were in a very advanced process" – that is, they were not ready for delivery.
- However, the defendant has two main arguments regarding the infringement itself and its intensity:
- The Claim The first is that the amount paid by the plaintiff is the total price for assemblies A+B, which make up the first unit of the complete machine, and that the plaintiff did not pay at all for the other assemblies that make up the machine when it was finished. Her claim The second of the defendant is that assemblies A+B Produced by the defendant prior to the filing of the claim, and they were willing to hand it over to the plaintiff, but she refused to accept them. The conclusion that derives from the combination of these arguments of the defendant, according to the defendant, is that the defendant is not obligated to return to the plaintiff any sum that was paid, since this sum was paid for assemblies A+B (the first unit), and this unit was manufactured and the plaintiff only had to agree to receive it (see: paragraphs 40-48 of the defendant's summaries).
- I will examine the defendant's two aforementioned claims.
Was the total payments that the plaintiff paid to the defendant by virtue of the agreements consideration for assemblies A+B only, or was it a (partial) consideration for the machine as a whole?
- As will be clarified below, I am of the opinion that the defendant's argument that the payments made by the defendant were consideration for assemblies A+B only should be rejected, and the plaintiff's argument that the amount paid was part of the consideration for the machine should be accepted As a whole.
- First, an examination of the appendix of the Memorandum of Understanding shows that the payment plan was as follows:
"50% of Unit 1 - NIS 640,500 - paid.