He went on to say in connection with clause 4 of the sale agreement quoted above:
"Q. You read this paragraph, didn't you ask her? You didn't tell her, so what should I do?
A: I read and understood him as I understood him in front of me to the lawyer who represents me, at least she would have told me Erez to read but take it home and check, take a day or two, or maybe emphasize to me in a positive way as the lawyer is obligated to do, to tell me to leave, stop you, take someone to check it for you, an engineer, an appraiser, someone to check it, She didn't do it" (p. 42, paras. 35-39)
Needless to say, the plaintiff's testimony was reliable in my opinion, and it was not contradicted in his cross-examination.
- On the other hand, when the two defendants were asked why it was not stated in the sale agreement and/or in any other document, the fact that the "apartment" does not have a lawful building permit, they did not give satisfactory answers. The defendant replied that she could not answer this question and that the person who drafted the sale agreement was Adv. Manor (pp. 87-88 of the transcript), while Adv. Manor referred to this matter in the criminal proceeding by saying the following:
"..... Since we knew there was a problem with the permit. There is clause 4 that I refer to the Planning and Building Committee in clause 4, paragraph 2 of the contract. I will not write that there is no permit in the contract because it does not seem logical to me when the contract goes to the municipality to comment on it" (p. 11, paras. 14-16 of the minutes of the hearing of January 10, 2019)
The aforementioned answers of the two defendants were not convincing in my opinion, since considering their claim that the plaintiff knew that we were dealing with an opaque space and that the apartment did not have a lawful building permit, what could be simpler than signing a written declaration, either in the framework of the sale agreement or in the framework of a separate document, regarding his knowledge of these facts and his waiver of any claim against them in this matter!! The absence of such a statement strengthens the impression of the truth of the plaintiff's version regarding the concealment of this material fact from him in the presence Signing the sale agreement.
- Moreover, in clause 16.7 of the sale agreement it is written "Upon the signing of this Agreement, any contract and/or memorandum of understanding and/or other agreement, whether oral or written, between the seller and the buyer are void and cancelled - If there were any". This clause, which was drafted by Adv. Manor as aforesaid, omits the basis under the legal validity of any other agreement, insofar as it existed between the defendants and the plaintiff prior to the signing of the sale agreement (which was not proven in the case before us).
- In support of their defense, the defendants claimed that the "apartment" was sold to the plaintiff at a price lower than the market price, and that this strengthened their claim that the plaintiff knew about the planning problem of the "apartment", including the lack of a lawful building permit for which it was purchased.
I do not accept this argument.