"If the breach of contract is the result of circumstances that the breacher, at the time of entering into the contract, did not know and should not have known about them or did not see and should not have seen them in advance, and could not have prevented them, and the performance of the contract in those circumstances is impossible or fundamentally different from what was agreed upon between the parties, the breach will not be grounds for enforcing the breached contract or for compensation."
- As has been determined in the case law, more than once, theCOVID-19 pandemic is indeed an exceptional event, which neither side could have foreseen. Therefore, it was ruled that it is not appropriate to place the full responsibility for the "damages" caused by the coronavirus on only one party.
- In my opinion, a determination that a tenant may cancel the lease agreement immediately, without paying any compensation to the landlord, is an unreasonable, unjust andunfair outcome, and does not balance anddivide between the parties the consequences of the Corona pandemic. A determination that a party may cancel the agreement due to thwarting leads to the conclusion that it is exempt from any payment for the cancellation of the agreement.
- In the framework of the summaries of the answer (section 10), the counsel for the Champions Workshop noted in "Rachel, Your Little Daughter" that there is no justification for placing the responsibility for the Corona pandemic and its ramifications on the shoulders of the Champions Workshop, alone.
- More often than not, the parties succeed in reaching agreements regarding the division of responsibility for the damages caused by the COVID-19 pandemic. In our case, the parties did not reach agreements, and each one hurled accusations, one at the other, which is a shame.
- It has already been ruled more than once that the COVID-19 pandemic should not be viewed as a factor that can establish a claim of thwarting in a way that will allow one party to impose full responsibility and bear the damage on the other party (see: Civil Appeal (Center) 11146-04-22 Isoonic Kid Systems in a Tax Appeal v. La Rhine Entrepreneurship and Events in a Tax Appeal [published in Nevo] (August 22, 2022) (hereinafter: "the La Rhine case");
Decision on an Appeal against this Judgment - Civil Appeal Authority 7637/22 (hereinafter: "La Rhine Appeal"); and Insolvency (Tel Aviv-Yafo) 26076-02-20 Adv. Israel Bachar - Trustee of the Pillars of Shlomo Brothers Yadgrove Trade in Tax Appeal v. Convenience Systems (2007) in Tax Appeal [published in Nevo] (July 8, 2020)).
- For the sake of the ear's opinion, in the La Rhine case it was held:
"The law of thwarting is therefore intended for cases in which the contract has been breached, and it provides the violator with protection from an enforcement claim or compensation, provided that three conditions set forth in the section are met. The first condition is the condition of non-expectation, according to which thwarting refers to circumstances that the violator did not know and should not have known existed at the time of entering into the contract. The second condition is the condition of effect on the contract, according to which thwarting relates to circumstances in view of their existence the performance of the contract has become impossible or fundamentally different from what was agreed. And the third condition is the preventative condition, according to which the thwarting relates only to circumstances that the violator could not have prevented (e.g., Civil Appeal 5054-11 Sapir and Barkat Real Estate (Holiland) in Tax Appeal v. Adv. Yaakov Amster [published in Nevo] (07.03.2013); (Hereinafter: "The Sapir and Barkat Case", and the references therein)".