In our case, it was not proven that the plaintiff abandoned his right to sue, and it was not proven that the defendants' situation deteriorated as a result of the delay, and it was not proven that the plaintiff's conduct was tainted by bad faith, and therefore this claim should be dismissed as aforesaid.
In this context, I will note that Adv. Manor did not testify in the present proceeding due to a serious illness that unfortunately she contracted. This fact was brought to the attention of the court and the other parties in the advanced stages of the proceeding, when no request to collect prior testimony was submitted by Adv. Manor's counsel, at any stage. In this state of affairs, and despite the sorrow of the matter, the argument regarding the deterioration of the situation as a result of the timing of the filing of the claim will not be heard.
- Contributor's fault/the buyer should be careful
The defendants argued that the plaintiff should be charged with significant contractual contributory fault for not performing the inspections at the local planning and building committee in accordance with his undertaking in clause 4 of the sale agreement.
In the circumstances of the case before us, I am not persuaded that to impose contractual contributory fault on the plaintiff, and in this context I refer to the precedent established in other municipal applications 8068/11 Uri Eini v. Chen Shifris [Nevo] (February 11, 2014), and in the words of the Honorable Justice Melcer (as he was then called), according to which he said:
"In a conflict between a seller-infringer who knew (or should have known) at the time of the conclusion of the contract the existence of certain facts, which he did not disclose to the buyer - and the negligence of the buyer who did not examine and disclose those facts (and even declared that he did so) - the buyer has the upper hand. He is therefore entitled to all the remedies granted by law to the injured party due to a breach due to a non-conformity, including: cancellation of the contract, together with restitution and agreed compensation. In such a case, contributory fault should not be attributed to the buyer's obligation."
- Compensation
In the statement of claim, the plaintiff petitioned to oblige the defendants to pay compensation in the amount of ILS 705,115, which includes: ILS 650,000 for the value of ownership rights of the "apartment" as a residential apartment built with a building permit in accordance with the law, the sum of ILS 7,020 attorney's fees for the criminal proceeding, the sum of ILS 20,000 for the monetary fine paid as a result of the criminal proceeding, the sum of ILS 4,095 in the fees of the appraiser Mr. Volkan, The sum of ILS 24,000 for the loss of income "from the apartment" from the date of the sentencing until the date of filing the claim. During the trial, the plaintiff stated that he had sold the "apartment" for the sum of ILS 120,000, and the amount of the claim was reduced to the sum of ILS 585,115 as aforesaid.
- The defendant claimed that the plaintiff did not suffer any damage, taking into account the rent he collected over the years and the consideration he received from the sale of the "apartment", and added that the plaintiff did not act to reduce his damages by "qualifying" the apartment for residence.
Adv. Manor argued that the rule in determining compensation for the tort of negligent misrepresentation is the award of reliance damages, i.e., compensation that places the injured party in the situation he would have been in had the tort not been committed against him. Accordingly, the plaintiff is entitled to demand the restitution of the difference between the consideration paid by him for the "apartment" in the sum of ILS 172,000 and the value of the apartment in its planned condition at the time of purchase, which is approximately ILS 90,000 in accordance with the appraiser's opinion on their behalf, and therefore, his damage amounts to a maximum of ILS 82,000 according to their approach. They further claimed that from this sum the consideration in the sum of ILS 120,000 received by the plaintiff for the sale of the "apartment" should be deducted (this is a double offset!! My note, c. C), as well as benefits that accrued to him following the purchase of the "apartment" in the form of rent, in the total amount of ILS 375,600. Therefore, according to them, not only was the plaintiff not harmed by the transaction, but for an investment of ILS 172,000, he received a sum of about ILS 500,000 after a decade, three times the investment in the purchase of the apartment, meaning that he did not suffer any damage when he received back the full value of the apartment and even more, whether by selling it or by renting it out (paragraphs 68-78 of the summaries of defendant 2).
- As I noted above, the source of the charge has implications for determining the type of compensation that the plaintiff can repay from the defendants.
On the contractual level , the compensation remedy is intended to protect three interests: the interest of existence or expectation (positive compensation), the interest of reliance (negative compensation), and the interest of restitution. The types of compensation relevant to our case are reliance compensation and subsistence compensation.