50% of Unit 2 - 520,500 NIS - according to a signed agreement with the reservation.
40% of Unit 1+2 - 928,800 - will be paid upon delivery - in Phase 1 and 2 inspection at the plant next to technologies in accordance with specifications.
10% of Unit 1 + 2 - 232,200 NIS - will be paid after installation and training at Kioskay.
Total: NIS 2,322,000" (see: Appendix to the Understandings, Appendix 4 to Hamami's first affidavit).
- The payment schedule, which was attached as Appendix 5 to Hamami's first affidavit dated August 17, 2020, which allegedly corresponds to the parties' card, shows that as of September 9, 2015, 50% of the price of Unit 1 (Assemblies A+B) in the sum of NIS 640,500 had been paid; and that on November 26, 2015 (two days after the signing of the Memorandum of Understanding) the plaintiff paid the defendant an additional sum of NIS 520,500, which is 50% of Unit 2 (assemblages C+D+E).
- This payment schedule corresponds to the payment schedule and the amounts as detailed in the Appendix to the Understandings, and it appears from it that the plaintiff paid the defendant 50% of the total consideration for the machine as a whole, its two units and all its assemblies.
- Moreover, after the hearing of the evidence and before the summaries in this proceeding were submitted, the plaintiff requested to submit additional evidence – tax invoice No. 3082 dated December 29, 2015 of The Defendant addressed to the plaintiff, in which it is stated that a sum of NIS 1,161,000 (before VAT) was paid and that this sum was paid for "50% complete production line for cigarette rolling packaging + filter package BOOKLET + FILTERS PACK"It was further noted that the appellant will pay taxes in the amount of NIS 197,370 until January 15, 2016. The request to attach the evidence was granted in my decision of February 16, 2025.
- This evidence shows that even in real time, it was understood by the parties that the payment in the amount of NIS 1,161,000 was made for 50% From the machine as a whole - From the entire production line – and not as the defendant now claims, that this is a full payment for assemblies A+B only. Moreover, the full payment for these assemblies in accordance with the memorandum of understanding is NIS 1,280,000, and not NIS 1,161,000.
- This determination is important because it shows that the parties intended to uphold the agreement Fully and not to be carried out partially or in stages that are not dependent on each other, as the defendant claims. The plaintiff paid half of the cost of the machine As a whole, in view of the defendant's counter-undertaking to provide the complete machine. Hence, even if Assemblies A and B (which make up the first unit) were indeed ready for delivery at the time the claim was filed, this is not sufficient to determine that the defendant did not breach the agreement, since this is only a partial performance of its undertaking. However, I did not see the need to determine the rivets on this question, because, as will be clarified below, I did not find it acceptable to accept the defendant's argument that the first unit was indeed ready for delivery in accordance with the defendant's contractual obligation at the time the claim was filed.
Was the first unit (assemblies A+B) ready for delivery at the time of filing the claim?
- The defendant's other argument is that at the stage when the claim was filed, assemblies A+B were working and were ready to be delivered to the plaintiff, but the plaintiff refused to accept them. It seems that in this way the defendant seeks to make the following argument: even if the machine was never manufactured in its entirety in accordance with the defendant's undertaking in the agreements, it was partially manufactured – since the first unit of the machine was completed. Hence, according to the defendant, the breach that should be attributed to her is not an absolute breach.
I cannot accept this argument.
- First, the date for the delivery of Unit 1 (Assemblies A+B) was, in accordance with the Appendix to the Understandings, on November 30, 2016, but it appears that there is no dispute between the parties that at that time Unit 1 was not ready.
- Second, even according to the defendant's own approach, Unit 1 did not meet the production capacity agreed upon in the appendix to the Memorandum of Understanding – production of 120-140 per minute (see: paragraph 21 of Kiselowitz's first affidavit of October 27, 2020). In addition, in another affidavit, Kiselowitz noted the following:
"The work on Assemblage A was completed, when a Kioskai team arrived to see the machine in action, it was clearly seen that the machine was working... And due to a malfunction in the type and quality of the paper supplied by Kioscai itself, due to it being expired and not kept in accordance with the manufacturer's requirements, it was unable to complete its intended purpose and it was not possible to work with the specific paper. Similarly, the paper did not meet the initial requirements and did not suit the needs of Kioskai and the production in the assembly that was produced. The problem also arose with respect to the carton that was supplied, it does not comply with the requirements regarding the depth of the folding lines, and therefore makes it difficult to work with the carton and fold it as required" (paragraph 18 of Kiselowitz's third affidavit dated July 24, 2023; emphasis added, L.S.).