The court ruled that even if we accept the assumption that the conditions of expectations are met, the second and third conditions were not met. With regard to the conditions of effect on the contract, it was held that "partial fulfillment or temporary prohibition does not lead to the thwarting of the contract, except when the delay causes an unreasonable delay in the date of fulfillment agreed upon in the contract or when the dates of performance are one of the principles of the contract" and with regard to the third condition, it was ruled that this condition imposes a positive duty on the breacher, to prove that he could not have prevented the effect of the frustrating circumstances on the contract.
- And yes, in La Reine's appeal , it was held:
"... In my view, it is doubtful whether the applicant has the claim of thwarting, in light of the fact that the state provided financial assistance to businesses that were harmed during the COVID-19 period due to the restrictions imposed on them, and the implied decrease in the scope of their activities and income (see: section 8 of the Economic Assistance Program (Novel Coronavirus) (Temporary Order) Law, 5780-2020).
Moreover, it should be noted that over the years, the defense of prevention in our case law has been interpreted in a limited and precise manner: "The approach that has taken root in our law was that in the reality of life in Israel, even the most difficult and extreme events can be foreseen" (see: Gabriela Shalev Contract Law - General Part 630 (2005); and see: Civil Appeal 3402/95 S. Gamliel - Building and Development Company in Tax Appeal v. Feingold, para. 24 [published in Nevo] (August 21, 1997))."
And from the general to the individual:
- In our case, my grandfathersaid thatthe argument of thwarting, raised by the Champions Workshop, should not be accepted. For I am satisfied that with the outbreak of the Corona virus, the Champions' Workshop made a self-judgment, one-sided and immediate.
- On the one hand, the Champions Workshop claims that Meitar presented a tough and inconsiderate position, in light of the coronavirus crisis. On the other hand, it acted unilaterally and also took an uncompromising position;
- According to her, Anavi did not offer any reduction in rent, and claimed that the business was open, since it was an essential business.
An examination of the correspondence between the parties (Appendix 18 to Levy's affidavit) shows that there was indeed no reduction proposed by Meitar regarding the rent.