Civil Case (Legal Investigation) 30720-09-20 Liran Shapira v. Lital Dechner - part 2

(b) If the fundamental non-conformity or non-conformity is rediscovered after the Seller has corrected it one or more times over a period of two years commencing on the date of the Buyer's or Sub-Buyer's notice of the fundamental non-conformity or non-conformity, or the correction of the fundamental non-conformity or non-conformity is urgent and the Seller has not corrected it within a reasonable time from the date of the Buyer's or Sub-Buyer's notice of such Purchaser, the Buyer or Sub-Buyer may comply with the Regulation and the Seller shall bear the costs of the repair.

134. This is especially true with regard to moisture defects, which are usually not visible when the apartment is handed over, but are only exposed after a period of time. Once moisture defects are discovered, their repair is urgent due to their impact on other components of the apartment (such as the flooring and flooring infrastructure, as noted by an expert in court).  The contractor's right to repair defects and defects in the apartment is also an obligation to repair them [compare to the arrangement In section 3(a) of the Contracting Contract Law].
135. With regard to the right and duty of the contractor to repair defects and defects, he and the plaintiffs are not strangers; There is a rivalry between them, even though they are second-hand buyers and not the first buyers of the apartment at the end of its construction. The law does not grant the contractor an exemption from fulfilling his obligations with regard to inspection and liability for repairing defects in the apartment just because its first buyers sold it to others.  The reason for the rights of the apartment buyer vis-à-vis the contractor is done by virtue of the law; Its existence is not contingent upon a declaration of it in the sale contract between the first purchasers and the subsequent buyers.  This stems from the cogent nature of the contractor's obligations with regard to repairs; They cannot be stipulated or reduced, in favor of the contractor [Civil Appeal 656/99 Dr. Bar Shira v. Dormitories and Building Ltd., IsrSC 57(5) 1 (2003)].
136. In this case, this was open and clear to the plaintiffs. They insisted that in the sale contract entered into between them and the defendants, there would be an explicit declaration regarding the assignment of the defendants' rights with respect to the contractor's obligations in relation to the apartment in accordance with the purchase contract entered into with him [paragraph 3.10 of Appendix A toA/1].  Thus it was determined there: "[...] The sellers hereby assign all their rights with the mortgage company, including for construction defects in accordance with the original purchase agreement and in accordance with theThe Sale Law".  Adv. Zini, counsel for the defendants in the drafting and signing of the sale contract, testified that the inclusion of this clause in the contract stemmed from a demand made by the plaintiffs, through their counsel [paragraphs 8 and 11 of theP/2].  The plaintiffs did not voice the lawyer who represented them in the process of concluding the contract and did not contradict it.  In fact, in filing the claim against the contractor, the plaintiffs relied on the fact that they stepped into the defendants' shoes in their relationship with him [paragraph 17 of the statement of claim].
137. The plaintiffs contacted the contractor at the beginning of March 2020, identified themselves as the buyers of the apartment from the defendants, presented him with the sale contract, registered with the contractor as the buyers of the apartment, and asked him to receive the documentation regarding repairs to the apartment so far. The contractor rejected their request and refused to fulfill it; Hoffman, the contractor's witness, confirmed this [paragraphs 19-20 inP/4].  This conduct of the contractor must be criticized loudly and clearly, while determining that it was illegal.
138. The documentation regarding the repairs did not apply to any legally recognized confidentiality due to which the contractor was entitled to conceal it from the plaintiffs, after he recognized them as the purchasers of the apartment from the defendants. The apartment – a real estate asset – does not enjoy a right to privacy, as if it were a human being; The legal right to privacy does not provide a contractor with a reason to refrain from presenting the documentation to the plaintiffs, as they request.  Nor was the contractor able to pin his refusal to provide the documentation to the plaintiffs on the privacy of the defendants.  The defendants, the sellers of the apartment, have a broad duty of disclosure vis-à-vis the plaintiffs, the apartment buyers, regarding the history of repairs in the apartment as expressed in the documentation.  This will be discussed at length later.
139. With regard to information that the defendants are required to disclose to the plaintiffs in the sale of the apartment, the contractor was unable to hide behind the defendants' shoulders – in the name of the right to privacy or any other right – as an excuse not to give it to the plaintiffs after they purchased the apartment. As evidence, the contractor presented the documentation during the investigation of the claim without requiring the consent of the defendants or a judicial order.  The law obligated them to do so; The obligation applies even before the claim is filed, from the moment the plaintiffs identify themselves to the contractor as the buyers of the apartment.  The contractor would do well to internalize this in future cases.
140. The reasons for the contractor's conduct that Hoffman tried to provide must be rejected with both hands. According to him, the contractor is not obligated to provide the plaintiffs with the documentation regarding the repairs, since towards the plaintiffs, the developer and Danya are not the 'sellers' of the apartment, are not a party to the engagement between the plaintiffs and the defendants, and do not have a duty to disclose the condition of the apartment [paragraphs 19-20 inP/4].  Hoffman's testimony sharpened the defect in the contractor's refusal to present the plaintiffs with the history of the apartment's treatments.  He stated that when a second-hand buyer approaches the contractor with a complaint about a problem, the contractor checks with the documentation in his possession what has been done so far and whether it is an ongoing problem for which there have been previous inquiries [pp. 25, 14-20].  A contractor who has nothing to hide, who has set his sights on his duty to repair defects in the apartment until it is in good working order and without defects, would have given the documentation to the plaintiffs while inviting them to inform him whether any defect that has been dealt with so far will recur.
141. Hoffman found it difficult to justify not providing the plaintiffs with documentation regarding the amendments. According to him, "We are committed to the person who owns the apartment at that point in time.  Danya was not a partner in the sale of the apartment [...]" [p. 26, paras. 27-28].  In his main testimony, Hoffman stated that the refusal to provide the plaintiffs with the history of the treatments was done despite the fact that they identified themselves as the buyers of the apartment by presenting a signed sales contract and identity cards and did everything necessary to register with the contractor as the owners of the apartment [paragraphs 19-20 inP/4].  It follows from this that even according to Hoffman, at the time the plaintiffs approached the contractor, they were the owners of the apartment and therefore the contractor was obligated to give them full access to past documentation regarding it.  In light of the contradiction in his testimony, Hoffman found refuge on the grounds that the contractor did not give the 'second-hand' buyers information regarding the history of the apartment [pp. 27, 1-9; p. 31, 9-10].  In the same breath, he confirmed that today the contractor's liability is towards the plaintiffs, the purchasers of the apartment [pp. 31, 23-25].
142. For the purposes of the right of repair, the contractor relied on the plaintiffs being substitutes for the defendants, the original purchasers; For the purposes of his own rights, Yahav projected on the sale contract between the defendants and the plaintiffs, in which the plaintiffs were assigned the rights of the first purchasers vis-à-vis the contractor as the seller of the apartment. For the purposes of insisting on his own rights, the contractor did not see any difficulty in relying on a contract to which he was not a party [paragraphs 42-42 of the statement of defense].
143. It is not possible to hold the stick at both ends: on the one hand, when it is in accordance with the contractor's self-interest and his desire to get another opportunity to repair the defective apartment in the apartment, to recognize that the plaintiffs stepped into the shoes of the original purchasers; On the other hand, when it is inconvenient for the contractor – when he is required to provide documentation that will reveal his attempts to deal with severe dampness problems in the apartment on a considerable scale and over time – to view foreign plaintiffs as not entitled to receive any information and documentation regarding repairs made to the apartment prior to its purchase. This is conduct that is not in good faith and has no place.
144. The plaintiffs' conduct was also faulty in this regard. Shortly after they entered the apartment, in the winter of 2019-2020, they were exposed to dampness in it [paragraphs 4 and 6 of theA/1].  They did not inform the contractor about them.  The plaintiffs' expert visited the apartment on March 6, 2020 and documented moisture defects in it; His opinion was given on April 1, 2020, but was not forwarded to the contractor.  He was first exposed to it when it was attached as an appendix to the statement of claim [see Hoffman's testimony at paragraphs 18, 24-25 inP/4 and at p. 31, paras. 19-21].
145. The claim was filed on September 14, 2020, about five months after the plaintiffs held the expert opinion on their behalf; It was not preceded by a letter of demand or a warning to the contractor. The plaintiff was forced to confirm this, even if in weak language and while referring to his counsel as someone who had knowledge of the matter [p. 43, paras. 14-29].  The plaintiffs presented a preliminary warning letter to the defendants, prior to filing the claim; They did not present parallel documentation regarding the contact with the contractor.
146. In their conduct, the plaintiffs committed a sin of the duty of good faith. They, too, are not allowed to make a selective argument that emphasizes their rights towards the contractor but ignores their obligations to him.  The assignment of the defendants' rights vis-à-vis the contractor to the plaintiffs in the sale contract also means the acquisition of the defendants' obligations to the contractor.  The plaintiffs were required to inform the contractor that there were signs of dampness in the apartment, to give him the opportunity to examine them and even to present him with the expert opinion on their behalf immediately after it was given, all before the claim was filed.  The contractor's refusal to provide the plaintiffs with the documentation regarding the repairs, even if he was guilty of a crime, did not relieve them of these burdens and they should have been meticulous and upheld.
147. The proper balance between the rights of the parties – the plaintiffs on the one hand and the contractor on the other – is that the contractor should be allowed to exercise his right to repair in relation to the defects found in the apartment: first and foremost the defects that are expressed in the appearance of dampness and, incidentally, also the general defects, all in accordance with the determinations of the court's expert.
148. On the one hand, I reject the contractor's argument that due to the plaintiffs' failure to give notice of dampness defects in the apartment immediately upon their appearance, and in any event, prior to the filing of the claim, the contractor is immune from a claim regarding the condition of the apartment, whether for a repair in kind or for monetary compensation in lieu of a repair [paragraphs 29-30 of theP/4]. This is a far-reaching claim, certainly from a contractor who did not take advantage of the opportunities he received to fix the dampness problem and did not manage to solve it before it passed from hand to hand. When she changed hands, he acted in bad faith and refused to provide buyers with information about the repairs he had made to the apartment so far.
149. On the other hand, I reject the plaintiffs' argument that the contractor lost the right to repair the defects in the apartment, so that he should be obligated to compensate them by paying the value of the repair in lieu of a repair in kind [paragraph 20 of the statement of claim; and see the plaintiff's testimony at pp. 45, para. 39 to p. 46, para. 2]. This is also a far-reaching claim by apartment buyers who acted towards the contractor in bad faith and concealed from him the defects in the apartment and the opinion they received from an expert about them.
150. This result is appropriate to the status of the contractor's right of repair [Civil Appeal (Beer Sheva Department) 61076-03-23 Ramon Engineers in Tax Appeal v. Becker (2024)]. It is also consistent with the contractual obligations that apply to the parties.
151. During the defendants' stay in the apartment, the contractor knew that she was suffering from moisture defects, which he called 'severe'. He performed various actions in an attempt to correct the defect.  The fact that the problem was not solved before the sale of the apartment to the plaintiffs should not negate the contractor's right to repair defects in the apartment and make the most of it.  If the plaintiffs had contacted the contractor and informed him of the appearance of signs of dampness in the apartment during the first winter of their residence in the apartment, then he would have been given an opportunity to examine the actions he had performed so far and to understand that re-sealing the wall separating the apartment from the yard and sealing the laundry hiding place was not enough.  The plaintiffs were not gifted with prophetic capacity and could not have known that this time, too, the contractor would not succeed in solving the problem so that it would not happen again.
152. At the same time, even within the framework of a proper balance between the rights of the parties, it should not be ignored that the contractor dragged his feet with regard to dealing with the recurring appearances of dampness in the apartment. In the present proceeding, the contractor had to show that even with proper diligence and reasonable expertise, he was unable to repair the dampness defects in the period prior to the sale of the apartment to the plaintiffs.  His evidence did not provide proof of this.  In order to show this, he had to be honored and present real evidence: the internal documentation regarding the discussions regarding the defects in the apartment and their repair, which Hoffman insisted on, the testimonies of the supervisors on his behalf regarding the execution of the repairs to the apartment, and the testimonies of the contractors who dealt with the repairs.  None of these were presented or heard.  It has already been said above: this establishes an evidentiary presumption that acts against the contractor and indicates that the repair process he took was not optimal, to say the least.  This is supported by Hoffman's testimony quoted above, in which emphasis was placed on the contractor's very arrival to carry out an inspection, while admitting that the documentation regarding the repairs does not provide sufficient detail of the material work carried out during them.
153. As a result, the contractor will not be allowed to carry out the repairs independently, but will be subject to the supervision of a court expert. It should also be noted that the contractor's adherence to the expert opinion on his behalf until the end of the investigation is tantamount to mockery of the poor [paragraphs 31-33 inP/4; p. 22, paras. 16-22].  It demonstrated an escape from responsibility where it should have been accepted, while insisting on exercising the right to amend.  The contractor's expert opinion does not have a proper professional approach to an apartment that suffers from a severe dampness problem for a long time, and with the reality that the contractor's efforts to fix it have not gone well.  Until the end of the investigation, the contractor repudiated the court's expert rulings and refused the contractor [pp. 26, 13-18; pp. 34, 28-32].  The contractor will therefore be obligated to correct the defects, but this is in accordance with the opinion of the court's expert and subject to his supervision.  The opinion of the expert on behalf of the contractor has no effect in carrying out the repairs.
154. In doing so, I reject the contractor's argument that the general defects in the apartment were apparent at the time the plaintiffs examined the apartment prior to its purchase, and therefore a presumption that they were expressed in the price of its purchase [paragraph 14 of theP/4]. This is a brazen claim that the contractor is not allowed to make; It is intended that the sale of an apartment that he built will establish a curtailment in all matters relating to his obligations to correct defects – a legal obligation that should not be stipulated.

Contributory fault should not be imposed on the plaintiffs against the contractor

155. The contractor sought to impose contributory fault on the plaintiffs for the existing dampness damages in the apartment, at least for that part of them that was aggravated between the appearance of signs of dampness after they received possession of the apartment and the date on which the claim was filed; It was argued that due to the failure to notify the contractor of the existence of damp damage and the failure to present the plaintiffs' expert opinion prior to the filing of the claim, the damp damage in the apartment was exacerbated by the plaintiffs' conduct.
156. The court's expert confirmed that as long as the root of the problem is not addressed – that is, the lack of adequate drainage of the yard – any additional rain that falls exacerbates the damp damage in the apartment [pp. 24, 27-28]. Nevertheless, the plaintiffs should not be held liable for the damp damage in the apartment due to contributory fault, while reducing the contractor's liability for the full extent of the damages and accordingly repairing them until they are fully destroyed.  First, the plaintiffs' expert visited the apartment at the end of March and gave his opinion a few days later, on April 1, 2020.  The lawsuit was filed on September 14, 2020, less than six months later.  In the intermediate period, the summer season occurred; During this period, there was no rain and the damage to the dampness did not worsen, certainly not in a real way.
157. Second, upon filing the claim and throughout the investigation, the contractor adhered to the opinion of the expert on his behalf. The contractor's expert opinion did not express a desire to deal seriously with an apartment that suffered from moisture defects that the contractor himself defined as 'severe'; It is foreseen as a continuation of the contractor's dragging of his feet during the repeated attempts to repair the damp damage during the defendants' residence in the apartment, as appears from the documentation regarding the repairs.  Thus, for example, the contractor did not shed light in his evidence on the reason why he chose to deal with the dampness in the apartment by re-sealing the wall between it and the yard – even though this action was taken in the previous year and failed, without achieving the desired result.  The burden of showing that his handling of the dampness problems in the apartment was serious and professional rests with the contractor; He was not lifted.
158. Finally, the contractor refused to accept the findings and determinations of an expert in court and insisted that he was willing to repair the apartment only in accordance with the expert opinion on his behalf. For this reason, the contractor alone bears any aggravation of the damage until the date of its complete and final repair, under the supervision of a court expert.
159. The plaintiffs should not be held at fault for leaving the level of the grass untouched. They did not lay the lawn, but rather purchased the apartment and took possession of it in its current condition, with the level of the grass being the same as the level of the flooring at the exit from the living room.  The court's expert ruled that this was reasonable, even if not optimal.  The defendants will also not be held liable for this, in terms of their relationship with the contractor and within the boundaries of the notice to a third party.  The contractor visited the apartment due to the defendants' complaints about repeated appearances of dampness even after the grass was laid.  He did not see the synthetic grass and the way it was placed caused the dampness problems.  The contractor's expert also did not think that the grass was the source of the problem; There is no mention of synthetic grass in his opinion.
160. If the contractor had taken care of the proper planning and execution of the drainage infrastructure in the yard, while transporting the water to the seepage pit and sealing the foundations, he would not be held responsible; In this state of affairs, the water entering the house could only be attributed to the level of the flooring in the apartment to the level of the lawn in the yard, in a manner that imposes liability on the defendants who ordered and carried out the laying of the lawn. But this is not the case.  The water is not removed from the apartment and finds its way into it due to fundamental, cumulative failures, all of which are the responsibility of the contractor: the lack of complete, sufficient and actual planning for the drainage infrastructure for the yard, the failure to carry out a suitable drainage infrastructure in it, and repeated repairs prior to the sale of the apartment to the plaintiffs that did not lead to the eradication of the cause of the problem.  Due to all of this, the failure that caused the problem remains, with the dampness in the apartment that is its result.
161. The discussions so far have mainly revolved around the dispute between the plaintiffs and the contractor; Naturally, they also have implications for the hearing of the claim against the defendants. I will now address the scope and content of the disclosure that the defendants made to the plaintiffs in entering into the sale contract and in the negotiations that preceded the signing of the contract.

The defendants breached their duty of disclosure

162. A dispute arose between the plaintiffs and the defendants regarding the disclosure made by the defendants in relation to the condition of the apartment in relation to the dampness defects in it, prior to the conclusion of the sale contract. According to the plaintiffs, the defendants did not disclose anything to them [paragraph 5 of theA/1].  The defendants denied this and maintained that they had updated the plaintiffs with all the repairs made by the contractor regarding the dampness, while providing an explanation in relation to each and every repair; According to the defendants, there were damp defects in the apartment prior to the signing of the sale contract, but they were repaired by the contractor so that they did not know of the existence of a problem at the time of selling the apartment to the plaintiffs [paragraphs 10 and 14 of theP/1].
163. The plaintiffs received possession of the apartment in December 2019; Appearances of dampness became more and more apparent during the first winter of their residence [paragraphs 4 and 6 of theA/1]. In light of this, negotiations took place between the plaintiff and the defendant, prior to the filing of the claim.  On February 21, 2020, the plaintiff contacted the defendant via the WhatsApp application and asked: "Yoav, good morning, tell me, I have a question, did you have a situation where there was swelling in the walls above the panels in several places in the house?".  The defendant replied: "If Danya had arranged it, contact them to arrange for you if there is such a thing" [Appendix B toA/1; Below The correspondence regarding the dampness].
164. After the plaintiffs were exposed to the scope of dampness in the apartment and provided themselves with legal representation, the plaintiff again contacted the defendant – this time by phone call; The conversation was recorded by him and transcribed [Appendix D toA/1; The Conversation About Wetness]. The conversation took place on March 3, 2020, not on December 21, 2021, as erroneously stated in the plaintiff's affidavit, referring to the date of the transcription [see paragraph 9 of the transcriptionA/1 and compare to the transcript, pp. 31, 28-30].
165. The defendant was not comfortable with the way he dealt with the plaintiff's words in the conversation about the dampness. Immediately after its end, on March 3, 2020, he wrote the following words to the plaintiff on the WhatsApp application: "Liran, I want to clarify, when we handed you the apartment there was no dampness or any other malfunction, I went through a history of repairs with you [...] In the living room I went through with you because you asked where there were repairs and I told her explicitly that there was dampness here and there and Danya arranged everything and the problems did not return.  In general, I don't intend to deal with it, if you have a problem contact Danya" [Sections 27 and 30 and Appendix 6 inP/1; Below The Supplementary Response].
166. Each of the parties sought to find in the correspondence regarding the dampness, in the conversation about the dampness and in the supplementary response to support his version: the plaintiffs, that the defendants concealed the existence of dampness in the apartment from them, and the defendants – that they actually behaved towards the plaintiffs in full disclosure before signing the sale contract [see the plaintiff's testimony at p. 33, paras. 8-10 and the defendant's testimony at pp. 55, paras. 34-37].
167. However, in the present case, even if dampness in the apartment was discovered by the defendants to the plaintiffs prior to the signing of the sale contract, they were presented to the plaintiffs as a defect that existed and no longer exists after it was treated by the contractor. This presentation of things is incorrect.  It violated the factual reality and misled the plaintiffs about a material matter of the engagement between them and the defendants.
168. The defendants' version was inconsistent. According to the defendant's main testimony, during the plaintiffs' visits to the apartment prior to its purchase, they were informed about the Full Corrections that the contractor carried out in the apartment while Providing an explanation of each and every correction.  This statement has a clear meaning.
169. The documentation regarding the repairs was presented to the plaintiffs for the first time in an appendix to the contractor's statement of defense. The defendant's testimony in his affidavit means that when the apartment was presented to the plaintiffs expressing interest in purchasing it, the defendants revealed to them the essential information mentioned in the documentation regarding the repairs: that even before the defendants had lived in the apartment for a year, they complained to the contractor about dampness in the bedroom wall bordering the bathroom, and the contractor pumped water under the flooring in the shower and sealed; that signs of dampness were also discovered in the apartment in the winter of 2018 – in the living room, kitchen and entrance, with the contractor's determination that there was severe dampness in the apartment in four locations; that in the summer of 2018, the contractor carried out excavation and sealing work in the yard, in the wall bordering it from the apartment and in the laundry hiding, in an attempt to solve the problem of dampness; that the following year, in the winter of 2019, dampness in the apartment returned and the plaintiffs complained about it to the contractor; that the contractor had repeatedly carried out excavation and sealing work between the yard and the kitchen and in the laundry hiding place shortly before the apartment was presented to the plaintiffs – as he had done in the previous year.
170. There is no dispute that the information about this was not provided by the defendants to the plaintiffs – whether at the time of the presentation of the apartment, or at the stage of negotiations prior to the signing of the contract or in the contract itself – all this contrary to the defendant's version in the affidavit. The testimony of the defendant in cross-examination regarding the scope and content of the discovery that was made was different.  According to him, what was presented to the plaintiffs were four sources of dampness – 'points' in his language, while pointing to them as a defect that existed and was treated by the contractor [pp. 51, 37-38]; This was done in places where signs of dampness appeared: in the master bedroom, in the wall of the northern living room under the sideboard, in the wall between the kitchen and the yard, and in the wall between the laundry hiding place and the dining area [pp. 52, 24-25].
171. The main argument of the defendants was that the contractor repaired the dampness defects in light of their requests to him, so that at the time of presenting the apartment and selling it to the plaintiffs, there was no defect in it. The defendant's testimony on this issue was unreliable and suffered from inconsistencies that exposed the weakness of his version.  He admitted that he had contacted the contractor twice with complaints about dampness in the apartment, year after year.  He sought to conclude that the contractor's treatment was effective in that the center in the parents' room did not repeat itself and contradicted itself when asked whether dampness in other centers that were treated recurred afterwards: once he admitted that there were centers of dampness that were treated by the contractor but repeated themselves the following year, and once he claimed that everything that was treated was not repeated [see p. 62, s. 9 and cf. pp. 63, 16-18; see also pp. 52, 16-20 and p. 53, s. 28].  The truth is evident in the documentation regarding the repairs: dampness manifestations recurred in the apartment year after year; The contractor himself defined them as 'difficult' and carried out insignificant actions in an attempt to address the problem: pumping water under the flooring in the bathroom and digging and sealing year after year on the wall of the apartment facing the yard and in the laundry hiding.
172. These are actions with clear and high visibility, even towards apartment owners as defendants who are not professionals. The plaintiffs complained about dampness in November 2017; The contractor responded by pumping water under the shower flooring and sealing.  The problem was not solved, but rather worsened: in February-March 2018, signs of dampness were discovered in three new locations.  The contractor responded with excavation and sealing work in the yard, the wall between it and the apartment, and the laundry hiding.  This time, too, there was no work to solve the dampness problems.  At the end of the winter season in 2019, the defendants complained to the contractor about repeated appearances of dampness.  The contractor repeated the action he had performed the previous year: excavation and sealing work in the wall between the yard and the kitchen and sealing the laundry hiding.  The defendant's testimony showed that although he was not an engineer, he understood that this was indicative of a dampness problem and was not accidental [p. 52, 35-38].
173. The documentation regarding the repairs shows that from the first winter of the defendants' residence in the apartment until its sale at the end of the summer in 2019, there was a regular ritual between them and the contractor; Three times the defendants complained that there were signs of dampness in the apartment, and three times the contractor tried to take actions that would provide a solution – once by spot treatment of the parents' shower, and twice by more extensive treatment of the wall separating the yard from the apartment and in the laundry hiding. The work related to the last repair attempt began in April 2019 and ended in August 2019 – just a month before the signing of the sale contract with the plaintiffs.
174. In this reality, the defendants could not reasonably believe that at the time the apartment was presented to the plaintiffs and at the time the contract was signed with them, the dampness defects from which they suffered while living in the apartment became a thing of the past, in the sense of something that is over and is no more. The opposite is true; Their personal experience has taught them that a repair carried out by the contractor at the end of the winter season due to signs of dampness discovered during the winter will only be put to the test the following winter.  As long as the correction did not stand the test of the rainy season, it is impossible to know whether it succeeded this time, or whether it failed – as its predecessors did.
175. The defendant knew and understood this. Despite his many attempts to refute the significance of the documentation regarding the repairs, his testimony strengthened the determination that at the time of the sale of the apartment, the defendants were not allowed to reasonably assume and expect that the dampness that had been treated and would not return.  The defendant referred to the return of the dampness shows [p. 63, paras. 26-34]:
176. But you said a second ago that some of it was repaired and returned.
177. So I say that in relation to 2018 and 2019, it came back in 2019, which was fixed at the end of the winter of 2019, and did not return at the end of 2019.
178. But throughout the years there were moisture defects that were repaired and returned.
179. Yes, certainly inside the apartment. [...] There were those four points.
180. Did they reconstruct?
181. Yes.
182. The apartment was presented to the plaintiffs as interested in purchasing it in the summer of 2019. The contract with them was signed in September 2019.  At this time, the contractor's repairs in the spring-summer of 2019 had not yet been put to the test; The defendants had no basis to believe that the wetting defects had been eradicated and threatened.  They might only have been treated as a thing of the past if they had kept the apartment for the next rainy season afterwards – in the winter of 2019-2020, without the recurrence of signs of dampness inside the apartment.  However, the defendants handed over possession of the apartment to the plaintiffs in December 2019, at the beginning of the rainy season, before the last repair made by the contractor was put to the test.
183. It is not for nothing that the defendant sought to reduce the intensity and significance of the dampness defects from which the defendants suffered throughout their residence in the apartment, winter after winter every year. In stark contrast to the documentation regarding the repairs, in which the condition of the apartment at the end of the winter season in 2018 was described as black and white as severe dampness in four locations, the defendant claimed: "The dampness was not difficult" [p. 72, s. 35].  This is another, not the only expression, of his unreliability.  The defendant admitted that he did not attach to his affidavit the entire documentation regarding the repairs, but only part of it [p. 63, paras. 1-4].
184. The defendants repeatedly called the contractor year after year to deal with recurring dampness in the apartment. Highlighted above: Instances of dampness are a symptom of a problem, not the problem itself.  Treatment is not limited to providing a solution to the symptoms of dampness – by renewing the plaster and repairing the painting; As long as the source and reason for water penetrating the apartment has not been identified, the dampness will repeat itself year after year, as happened here.  In order to understand this, there is no need to be an expert or a professional.  It is therefore of little importance that one in four instances of dampness did not repeat itself; As long as there are signs of dampness in the apartment every winter, it is a sign that the problem is not eradicated, but rather exists.
185. The defendant sought refuge in not knowing the nature of the treatment that the contractor carried out in response to complaints about dampness in the apartment. He, too, like Hoffman, puts the emphasis on the contractor's arrival for treatment – not on the nature of the treatment done and on his ability to solve the problem.  In his words: "They came and fixed things, I don't know what they did exactly, it will be said to their credit that they came[p. 73, 16-22, 31-33].  And: "I don't know, the contractor came to work and I don't know what he did[p. 74, paras. 24-37].  Regarding the contractor's repairs made in the spring-summer of 2019, shortly before the sale of the apartment, he said: "[...] I see people coming and tidying up, it gave me a sense of security that they fixed the problem[p. 75, 7-8].  This should not be accepted.  After the contractor had already carried out the same excavation between the yard and the apartment in the previous year and sealed the laundry hiding place - with no hopeful result of solving the problem, and after this work the dampness returned and resumed the following winter, the defendants had to ask the contractor questions: what did he do in the previous year, what is he doing now and how he intends to finally solve the ongoing dampness problem so that it will not happen again.
186. During the defendants' stay in the apartment, the contractor responded to their complaints by coming and making repairs. The work he carried out at the end of 2017 was unsuccessful; Signs of dampness appeared in the apartment and even multiplied the following winter.  In the spring of 2018, the contractor carried out another work, but it was also unsuccessful; The dampness remained the same the following winter.  The contractor made the same repair again in the spring-summer of 2019, very close before the apartment was presented to the plaintiffs.  The contractor did not commit to the defendants of the success of the repair in the second stage.  The defendants, who were experiential, were not entitled to expect that the latest amendment, in fact, would solve the problem, unlike its predecessors.  They would have been entitled to rely on it if they had spent another winter in the apartment without any signs of dampness, or if they had required the contractor to carry out flood and target tests at the end of the last repair to examine it and show that the dampness shows inside the apartment are not renewing.
187. There is no declaration in the documentation regarding the repairs by the contractor that this or that repair was successful, so that there will be no more dampness in the apartment afterwards. This puts in the right light what the defendant wants to argue that "Before the contract was signed, the house was amended, there was no dampness in the apartment at the time of sale, and this was approved by Danya Cebus and the contractor, and we had no reason to think that there was dampness in the apartment[p. 67, paras. 34-36].  The contractor did not provide any confirmation regarding the adequacy of the repair and did not undertake to the defendants that after the last repair, there was no more dampness in the apartment.  The defendants had many reasons to doubt the power of the latest amendment – which repeated an action that had already been carried out the previous year and was unsuccessful – to cure the problem of dampness in the apartment and to neutralize it.
188. As long as the defendants lived in the apartment, they were entitled to act like an ostrich, sufficing with the contractor responding to the complaint and carrying out work on it without knowing its nature and interested in their power to bring a cure to the dampness problems. However, when the defendants made a decision to sell the apartment, before they had spent an entire winter without any dampness shows, they should have taken an interest and proactively checked and verified that the source of the dampness had been identified and dealt with so that the problem no longer existed – if this is the representation they wish to create towards the apartment buyers.
189. For the purposes of the sale of the apartment, the defendants as sellers had legal disclosure obligations towards the buyers; The debts are not satisfied only because there is a contractor whose responsibility to continue carrying out repairs to the apartment remains the same and applies to the buyers as well. Buying an apartment that is under the responsibility of a contractor but does not have defects and buying an apartment that is covered under the responsibility of a contractor but has moisture defects that the contractor was unable to solve despite repeated repair attempts are completely different things; It is clear from the defendant's testimony that the defendants did not succeed in distinguishing between them [p. 69, paras. 15-19].
190. Even without interrogating the contractor and meticulously examining his repair attempts, the defendants could have easily fulfilled the duty of disclosure that they had against the plaintiffs. They should have told the plaintiffs – during the presentation of the apartment and at the stage when the parties' counsel was involved in the negotiations, which involved repeated appearances of dampness, that at the end of each winter the contractor carried out actions intended to provide a solution to the problem without being able to solve it until the winter of 2019, that in the spring-summer of 2019 the contractor again carried out work to eliminate the dampness problem, but a winter had not yet passed in which it was possible to examine their success.  This declaration, which is important and central in light of the history of repairs in the apartment, should have been explicitly expressed in the sale contract as well.  Such disclosure is a proper disclosure that fulfills the legal obligation; It does not depend on the defendants conducting an investigation and a demand vis-à-vis the contractor, it does not require them to declare anything that is not in their area of expertise, but it also does not conceal from the buyers the condition of the apartment in its entirety with regard to its coping with dampness difficulties over time.
191. The defendants did not make such a disclosure, not even similar to it. The content of the disclosure that the defendants made prior to signing the sale contract can be learned from the defendant's reactions when confronted with the plaintiff's complaints that there were signs of dampness in the apartment, shortly after it was delivered to the plaintiffs.
192. In the correspondence regarding the dampness, the defendant replied to the plaintiff that if there were swellings in the apartment above the panels (about which the plaintiff asked him), then the contractor arranged it. In this way, too, the defendant continued to create a representation that this was a problem that was only dealt with and treated.  Even now, the defendant tried to minimize the history of dampness from which the apartment suffered, by using the language "If there was".  The documentation regarding the repairs shows that there was also a winter, winter after winter, year after year, and everything was with the defendant's knowledge.  In his attempt to explain the restrictive language in which he responded to the plaintiff's first request regarding signs of dampness after the apartment was handed over, the defendant openly twisted while leaving a negative impression [pp. 55, 32-36].
193. In the conversation regarding the dampness, the defendant explicitly claimed that at the time the apartment was presented to the plaintiffs, the dampness had already been repaired so that it was a thing of the past: "[...] There was dampness in the apartment when we got the apartment [...], any dampness they came and fixed it and it didn't come back[p. 2 of the transcript of paras. 5-7]. Regarding the last correction in spring-summer 2019 he said: "And then it's the same method, they said it must be from the garden, they went digging there, tidied up and saw that it wasn't coming back" [ibid., paras. 16-17].  In the supplementary response that the defendant sent to the plaintiff immediately after the conversation, he noted that at the time of the presentation of the apartment, he went over "History of Repairs" and emphasized: "[...] I told you explicitly that there was dampness here and there and that everything was sorted out by Danya and the problems did not return.".
194. These are false, misleading statements. Signs of dampness that were discovered in the apartment in the first year after it was handed over to the defendants recurred and even multiplied; One call center was for four.  Three of the four hotspots were treated by the contractor in the spring-summer of 2018 but reappeared the following winter.  The last treatment was done by the contractor in the spring-summer of 2019 and did not stand the test of the rainy season at all; The defendant was therefore not able to say, even in a hurry, that this time the amendment went well and the problem did not repeat itself.  Misleading statements by the defendant in response to the plaintiff's complaint to him about the existence of dampness in the apartment, after the execution of the sale circular, support the determination that prior to the conclusion of the contract and its body, the defendants did not fulfill the duty of disclosure that applied to them, but rather committed a sin in breaching it.
195. Regarding the defendants' coping with recurring moisture defects in the apartment, the defendant said the following, in his testimony before me: "I lived there for two and a half years and in those two and a half years there were two groups of calls about these areas and I would certainly have been happy that I didn't have dampness in the apartment [...] you have to cooperate with the contractor, let him take care of it and if it comes back then they let him in again, [...] that I see that they really came and dug and did [...] In the end I say voila this time it was solved[p. 75, paras. 19-24]. It should be emphasized once again: Excavation work between the yard and the apartment was carried out in preparation for the summer of 2018.  They didn't succeed.  The dampness shows resumed in the winter of 2019 with a complaint to the contractor about recurring dampness.  The fact that the contractor carried out the same excavation and sealing work again the following summer did not indicate that this time the result would be different and that the problem that was the cause of the dampness had been eradicated.  At the time the apartment was presented and sold to the plaintiffs, the repair did not stand the test of the rainy season.  The defendant's hope that 'this time the problem was solved' was wishful thinking, not something he was entitled to rely on – while presenting the dampness problems as a finished thing.
196. About four months before the sale of the apartment, the contractor carried out an excavation and sealing in the garden and in the laundry hiding. This is a noble matter, not a trivial matter. The defendant admitted that the contractor had just finished making a repair regarding dampness in the apartment when the plaintiffs saw it [p. 57, paras. 14-20].  The defendant was asked how and when he gave the plaintiffs the information about this; He did not have a real answer [pp. 76, s. 35 to p. 77, s. 10].  His testimony was contradicted that prior to the sale of the apartment, the defendants made sure to update the plaintiffs "with all the repairs" carried out by the contractor "with an explanation, in relation to each and every repair" [paragraph 10 b-n/1].  This is testimony that is not true.  The defendant confirmed that he did not present the plaintiffs with the documentation regarding the repairs and did not attach it to the sale contract [pp. 55, 32-37; p. 56, 22].  The defendant's testimony showed that at the same time he told the plaintiffs that there were damp problems in the apartment, he emphasized that they had been repaired [p. 56, paras. 28-30].  As stated, the defendant told the plaintiff this even after the sale of the apartment, when the latter complained about dampness in it.
197. In other words, even if I accept the defendant's version of the content and scope of the disclosure that was made to the plaintiffs at the stage when the apartment was presented to them and negotiations were conducted with them prior to its purchase – as expressed in the correspondence regarding the dampness, the conversation about the dampness and the supplementary response, it shows that the defendants misled the plaintiffs regarding the dampness problems in the apartment. In order to reach this conclusion, I am not required to adopt the plaintiffs' version that they were not told anything about dampness in the apartment; It is sufficient for me to adopt the defendant's version, which was documented in the exchange he had with the plaintiff prior to the filing of the claim.
198. Between the misleading statement that the apartment had moisture defects that were treated by the contractor so that they no longer exist, and the statement that corresponds to the reality – that the apartment had severe moisture defects that recurred, led to periodic repair attempts by the contractor, and the last of them has not yet stood the test of the winter season, there is a very large gap. The test of the truthfulness of the representation is substantive, not verbal; Saying "half the truth" may be considered not only deception in omission but also deception in the act [Civil Appeal 494/74 Beit Hasmonean Company No. 96-97 v. AharoniIsrSC 30(2) 141 (1976); Civil Appeal 838/75 Spector v. SarfatiIsrSC 32(1) 231 (1977); Civil Case (Living Department) 3758-09-17 Yoslevich v. Levin (2019)].
199. Failure to disclose a material fact that is obligated to be disclosed at the pre-contractual negotiation stage may establish several grounds for the party injured by the non-disclosure By Article 15 in the Contracts Law (Remedies for Breach of Contract); second, grounds for compensation for lack of good faith in negotiations Literally In section 12 of the Contracts (General Part) Law [Civil Appeal 8737/00 Shelford Development & Building Company in Tax Appeal v. ZakIsrSC 56(4) 662 (2002); Civil Appeal 3052/08 Sassi Building Contractors, Dirt and Roads (1986) in Tax Appeal v. Ministry of Construction and Housing (2010); Civil Case (Jerusalem Department) 29643-12-11 Kreisberg v. Ganor (2016)].
200. The defendants claimed that the plaintiffs were able to become acquainted on their own with the history of the contractor's repairs to the apartment. According to them, they fulfilled their duty by offering the plaintiffs to contact the contractor in order to obtain any information related to the apartment [paragraph 10 of theP/1].  This should not be accepted; This is a cynical statement that does not flatter the defendants and does not legitimize their conduct.
201. The defendants were a direct party to the conduct vis-à-vis the contractor regarding dampness defects in the apartment and his efforts to correct them.  At the end of each repair, the contractor signed them on a document, as can be seen from the evidence [see, for example, p. 36 in the Appendices P/4].  Substantial documentation regarding the repairs is not found only in the contractor's possession.  The defendants also held it; They didn't argue otherwise.  It is not to be seen what the point of the plaintiffs would turn to the contractor in order to receive it, when if they were interested in disclosing its contents to the plaintiffs, all they were required to do was to present it to them and attach it to the sale contract.
202. Moreover. The defendants did not bother to verify with the contractor that he would be willing to provide the plaintiffs, who were strangers to him at the time, with the documentation regarding the repairs.  The contractor refused to do so after the sale of the apartment, when the plaintiffs identified himself to him as a buyer; If they had contacted him before signing the sale contract, they would not have received anything from him.  The burden of showing that the plaintiffs' referral to the contractor for information from him about the course of repairs to the apartment would have led to the result of providing the information falls on the defendants [Civil Case (Living Department) 426/02 Benny Binyamin Leketz in a Tax Appeal vs. Dekel HaCarmel Consulting Engineers Ltd., p. 9 (2006)].  The burden has not been lifted.  The plaintiffs' referral to the contractor was therefore made verbally and externally.
203. If the plaintiffs do not contact the contractor before purchasing the apartment, and if they do not have the apartment inspected by an expert to decide whether they wish to purchase it, the defendants should not be assisted. Allowing the plaintiffs to bring an expert examiner to the apartment did not grant the defendants an exemption from the disclosure obligation that applies to them by law.  Apartment buyers have the right to have the apartment inspected by a professional, but they are not obligated to do so; They may rely on the statements of the sellers at the negotiation stage and on the sale contract itself.  The duty of disclosure that applies to the defendants is not affected by this.  If the parties wanted to determine that the failure to inspect the apartment by an expert on behalf of the plaintiffs would apply the plaintiffs to the defendants and waive the disclosure obligations that apply to them by law, then they should have stated this explicitly and clearly in the sale contract.  In the absence of such a stipulation, the disclosure obligations to which the defendants are subject as sellers of the apartment remain in place.
204. The defendant's version was that the plaintiffs were presented with dampness problems in the apartment, but they were fully repaired by the contractor so that they no longer exist, and did not return. When the defendants created this representation against the plaintiffs, the defendants were entitled to rely on it and had no reason to carry out additional inspections: whether it contacted the contractor for documentation or the inspection of the apartment by an expert.  If, according to the representations of the sellers of the apartment, the dampness problems are a thing of the past, the plaintiffs were not required to carry out an additional examination in this matter and the defendants are not likely to build on its failure to carry it out.Civil Case (Living Department) 622/99 Pritzker Entrepreneurship in Tax Appeal v. State of Israel, v. 4 (1999)].

The breach of the duty of disclosure was reflected in the content of the sale contract

199. The breach of the duty of disclosure is also reflected in the content of the sale contract, in accordance with its breach by the defendants prior to its conclusion, from the moment the apartment was first presented to the plaintiffs and during the negotiations prior to the sale of the apartment.
200. In clause 3.12 of the sales contract – in the chapter entitled "Seller Statements and Undertakings" - It was recorded as follows:

To the best of the seller's knowledge, all the systems in the apartment are working and in good working order, including water, electricity, plumbing, sewage, air conditioning, and that there is no problem of dampness and/or leaks throughout the apartment.  It is agreed that if any defect and/or defect and/or damage is caused to the apartment and/or part thereof and/or its systems between the date of signing this agreement and the date of delivery of possession, the sellers undertake to ensure the repair of the damage and/or defect and/or defect at their own expense.

201. In light of the above, it is clear that this statement did not accurately and honestly reflect the condition of the apartment at the time of the conclusion of the sale contract or the defendants' knowledge of its condition; They did not have the information that would enable them to declare that there was no dampness problem in the apartment – not even subject to a qualified statement that the declaration was 'to the best of their knowledge'. What the defendants were able to declare – and duty – was that there were damp problems in the apartment that recurred despite the contractor's efforts to address them, that the last repair was carried out in the spring-summer of 2019, shortly before the apartment was presented to the plaintiffs, and that the success of the repair was not yet put to the test during the winter season.
202. After two years of repeated dampness manifestations in the apartment, after three rounds of repairs carried out by the contractor in order to provide a solution to the dampness problem, and after two of them did not achieve the desired result, at the time of the conclusion of the contract, the defendants had more reasons to suspect the success of the last treatment performed by the contractor – a repair that had already been tried a year earlier and did not achieve the desired result, than reasons to think that this time the dampness problem had been solved and no longer existed. Accordingly, their statement in clause 3.12 of the contract is false and misleading.
203. The argument that moisture defects are something hidden from view, in the sense of a hidden defect, does not soak up the defects in the defendants' conduct and legitimize the non-disclosure they have taken. There was no hidden defect against the defendants; The existence of the dampness problem from which the apartment suffered throughout the defendants' residence in it was of high visibility.  It repeated itself year after year, despite the contractor's amendments.  A winter has not yet passed without dampness that will prove the effectiveness of the last repair, which was made shortly before the apartment was put up for sale.  As far as the defendants are concerned, the dampness defects in the apartment – the success of which has not yet been proven – may not be considered a hidden defect within the meaning of clause 3.5 of the sale contract; For this reason, they are not entitled to find refuge on the grounds that they sold the apartment to the plaintiffs in its current state. as-is, as stated there.
204. On the other hand, the plaintiffs had a hidden defect in the dampness in the apartment when they signed the sale contract and when they negotiated with the defendants for the purchase of the apartment. The documentation regarding the repairs, which was known to the defendants, was hidden from the plaintiffs; The extensive repair work that the contractor carried out in the apartment shortly before it was presented to them was hidden from them, and the fact that the repair had not yet been put to the test during the winter season, and therefore it is impossible to know whether it succeeded or failed.  The defendants presented the plaintiffs with a representation that there were signs of dampness in the apartment that were repaired by the contractor and no longer exist.  Even if during the plaintiffs' visits to the apartment there were several paint repairs in its walls that could be seen with the naked eye, they did not make the fundamental dampness defect that is found in it visible and known – certainly in view of the defendants' declaration that the apartment had moisture defects that were treated by the contractor and no longer exist.
205. On the basis of this declaration of the sellers of the apartment, and subject to it, the plaintiffs declared in the sale contract that they considered the apartment to be examined by a reasonable buyer, after they had been given a proper opportunity to examine it and its condition. This declaration of the plaintiffs, which was expressed in clause 4.1 of the sale contract, was subject to the fact that the defendants made full disclosure about the apartment and its condition, as stated in the conclusion there: "[...] Subject to the correctness of the Sellers' declarations in this Agreement, they hereby waive any claims of defect and/or defect and/or incompatibility of any kind in connection with the Apartment, except for defect and/or defect and/or non-conformity that the Sellers knew about and did not report to the Buyers".
206. In clause 11.1 of the sale contract, it was determined that clause 3 therein is a main clause; Its breach will be a fundamental breach that will entitle the violating party to receive agreed compensation from the violating party without proof of damage in the sum of NIS 176,000 [ibid., paragraph 11.3]. Prior to the filing of a claim, a warning letter was sent to the defendants for a fundamental breach, as required by the contract [Section 13 and Appendix E B]A/1].  The defendants committed a fundamental breach of the sale contract by creating a false and misleading representation towards the plaintiffs – a representation expressed in a declaration that there is no dampness problem in the apartment that is known to the defendants, in concealing the truth regarding the conduct vis-à-vis the contractor as expressed in the documentation regarding the repairs, and in the plaintiffs' failure to point out that the dampness defects in the apartment are not a thing of the past but rather something active that the contractor has only recently tried to solve once more, and the repair he has made has not yet been examined and proven to be effective.
207. Failure to disclose material information that is important to the decision whether to purchase the apartment in the sale contract, and creating a misrepresentation about it, may constitute a fundamental breach of the contract [Civil Case (Central Department) 63167-12-12 Rosen v. Argaman (2016); Civil Case (K) 3613-09-13 Sitner v. Klibansky (2018); Civil Case (Petah Tikva) 38646-12-16 Azaria v. Milstein (2020)]. The plaintiffs and defendants adopted the law that applies to this issue by means of clause 11.1 of the sale contract.
208. In the circumstances proven here, The silence of the sale contract by not mentioning the dampness defects in the apartment is a resounding, serious and fundamental defect. The dampness defects accompanied the defendants throughout their stay in the apartment.  They experienced unsuccessful repair attempts by the contractor.  It was not possible to sell the apartment without full disclosure in this matter, emphasizing that the last repair that the contractor made shortly before it was presented to the plaintiffs had not yet met the test of reality.  Even if the defendants claimed that they disclosed all the information said to the plaintiffs at the stage of conducting the negotiations, this is not enough without explicit and clear anchoring of the matters in the body of the contract.  There will be no argument that something is important enough to be presented at the negotiation stage but is not important enough to be reflected in the written contract that anchors the parties' declarations and undertakings.  More than necessary, this was reflected in clause 12.5 of the sale contract, which determined its supremacy and exclusivity with respect to the negotiation stage.
209. The defendants sought to build on the fact that the plaintiffs did not contact the contractor with a complaint about signs of dampness in the apartment while giving the contractor an opportunity to deal with it, but only recounted their claims at the time the claim was filed; As a result, the plaintiffs were treated with negligence that increased the damage [p. 53, paras. 9-13]. The claim of failure to reduce the damage is not relevant to the defendants, but to the plaintiffs' relationship with the contractor; I discussed it above.  The fundamental breach of the contract by the defendants was expressed in the concealment of information in respect of which there was a duty of disclosure and in the creation of a representation that misrepresented the truth regarding the dampness defects in the apartment; The breach occurred upon the conclusion of the sale contract.  In later events, the violation was not to be cured or its consequences alleviated.

The testimony of counsel for the defendants strengthened the above assertions

210. The defendants relied on the testimony of their attorney in drafting the sale contract, Adv. Matan Zini [P/2; Below Adv. Zini]. He noted that at the stage of preparing the contract, he spoke by phone with the plaintiffs' counsel and heard from her that they had been informed that the apartment had been inspected by the contractor, and especially damp repairs [paragraph 9 of theP/2; pp. 3, 5-6].  The defendants also told Adv. Zini that there were several defects in the apartment that the contractor had corrected [ibid., paras. 22-25].
211. Also to their counsel – not only to the plaintiffs, the defendants presented the defects that existed in the apartment as something that had been treated and no longer exists. Adv. Zini emphasized: "At the relevant time, to the best of my knowledge, from what I was told by the sellers, there was no defect.  Dot" [pp. 5, 26-27]; He attributed this to the manner in which the sale contract was drafted, while denying the existence of dampness defects in the apartment: "The sellers, to the best of my knowledge, as I also wrote in the affidavit, sold an apartment that at the time of the sale agreement had no defects and therefore there is no relevance to what was before the sale at the level of the agreement" [pp. 5, 7-9].  And: "From the explanation I received from the sellers, the relevant defects that you are claiming today did not exist at the time of signing and therefore are not relevant, there were defects before that, the contractor was invited, the contractor came, repaired, the story is over" [p. 6, paras. 14-17].  Counsel for the defendants confirmed that if there was a dampness defect at the time of signing the contract, then it should be noted [pp. 5, 15-19].
212. Adv. Zini was confronted with the discrepancy between the lack of mention of the history of dampness defects in the apartment, which was reflected in the documentation regarding the repairs and was not disclosed in the sales contract, and the specific reference in the contract to a crack in the kitchen drawer – a minor matter, for which it was determined that a defect would not be considered a defect [clause 7.2 of the contract]. He pointed to the defendants as someone whose content of the contract matched their wishes and demands: "This is what the sellers asked to write and this is what was signed"; Adv. Zini again attributed the lack of reference to moisture defects on the fact that "At the time of the sale agreement, I was told, there were no defects" [pp. 9, 6-19, 24-27; See also pp. 10, 1-4].
213. Therefore, the above determination remains: the defendants could not reasonably believe that when the apartment was presented to the plaintiffs and at the time of the conclusion of the sale contract with them, the dampness affair was over; In order to know whether the last, extensive amendment that the contractor made shortly before the presentation of the apartment to the plaintiffs had achieved its goal, the defendants needed prophecy. Doubt and ignorance have established a duty of disclosure – not avoidance of it.  They were unable to present the dampness defects as something that used to exist and no longer exists.  The testimony of their counsel showed that if the defendants had presented him with the reality as it existed and had refrained from making the false statement that the contractor had repaired everything so that there were no more dampness defects in the apartment, then the contract would have included an individual disclosure – instead of the misleading representation that to the best of the defendants' knowledge, there were no dampness problems in the apartment.

Findings of a polygraph test as evidence

214. The main point of contention revolved around the question of whether, during the presentation of the apartment to the plaintiffs, prior to the signing of the sale contract, the defendants told them that the apartment suffered from dampness problems – pointing to the places where there were dampness shows and emphasizing that they had been repaired by the contractor, so that in the present time there are no damp problems in the apartment anymore. This was the defendants' version when confronted with the plaintiffs' complaint about the existence of dampness in the apartment, after the signing of the sale contract and prior to the filing of the claim: in correspondence regarding the dampness, in a conversation about the dampness and in a supplementary response.  Thus, the defendants also presented the matter to Adv. Zini, who would represent them in the conclusion of the sale contract, in a manner that affected its content and wording.
215. The plaintiffs denied this [paragraph 15 of theA/1; p. 27, paras. 1-5]. The plaintiff insisted that prior to the signing of the contract, the defendants did not point to places where there was dampness and repair; His testimony was that nothing was said about dampness in the apartment [see pp. 28, 21-28; p. 29, 1-4; p. 44, 5-7].
216. In this regard, I preferred the defendants' version over the plaintiffs' version. The plaintiffs were able to summon witnesses in order to prove their claim that during the inspection of the apartment, there was no mention of dampness at all, and no places were shown where there were signs of dampness that the contractor had repaired.  This applies to family members who accompanied the plaintiffs when they examined the apartment and to their attorney who represented them in drafting the sale contract, about which Adv. Zini testified that he spoke with her regarding the defendants' statement to the plaintiffs that the apartment had moisture defects that had been repaired.  The plaintiffs' refusal to hear relevant witnesses without giving an explanation for this serves their duty while strengthening the other side's version.
217. This does not change the above determinations. The defendants' version is disturbing to them and proves the plaintiffs' claim regarding the breach of the sale contract by the defendants in a fundamental breach that entitles them to the agreed compensation.
218. Towards the end of the defendant's cross-examination testimony, he repeated his version in this context and added that he was willing to be interrogated by a truth machine; He was then asked by the plaintiffs' counsel: "Are you ready to be questioned by a truth machine that you and your wife went through with the plaintiffs before signing the agreement on the apartment and pointing out to him the places of the dampness?"; The defendant replied in the affirmative: "Yes, I'm willing to be questioned about it by a truth machine". Counsel for the defendants intervened in the investigation and asked: "If it turns out that he is telling the truth, will the lawsuit be dismissed?".  In the transcript, the words were attributed to the plaintiffs' counsel, Adv. Ganim, but this is an error on the part of the transcript editor; They were said by counsel for the defendants.  The defendant reiterated that: "I'm willing to be questioned about it by a truth machine[p. 70, 31-38].  A decision was given: "[...] So come to an arrangement that it will be done because it will not be part of my evidence management shift, you can submit any arrangement you want" [p. 71, paras. 2-6].
219. No arrangement was presented. On May 9, 2024, before the start of the evidentiary hearing intended to complete the investigation, the defendants filed a notice and a motion.  It was noted that the defendant had undergone a polygraph test; He was asked three relevant questions: "Before signing the contract for the sale of your apartment, did you tell Liran that the apartment had water dampness that was treated by the construction company? Before signing the sale agreement, did you vote for Liran on places in the apartment where there was water dampness that was treated? Before signing the agreement, did you refer Liran to Danya Cebus or Shikun & Binui in order to receive the apartment's treatment book?".  It was noted that the defendant answered all of them in the affirmative and was found to be telling the truth.  An expert opinion of the person performing the test was attached.  The court was asked to take its findings into account in rendering the judgment.
220. In the application, which revolved around the opinion with the findings of the polygraph test, it was claimed that "The opinion is the product of the parties' agreements in the hearing, as can be heard in the recording". Before the hearing began, a decision was made on it: "The parties are directed to continue recording.  If they wish to reach an agreement, they are invited to do so, also on the basis of the findings of a polygraph test.  In the absence of an agreement, the proceeding will be decided in accordance with the law – and the determination of findings of reliability is reserved for the court.  If the parties request, additional reasons for this will be detailed in the judgment that will be given at the end of the investigation".
221. I have referred to the consequences of the plaintiffs' referral by the defendants to the contractor for the purpose of obtaining documentation regarding repairs. It does not tip the scales in favor of the defendants and to justify their omissions that revolved around non-disclosure.  The above determinations regarding the defendants' breach of the sale contract in a fundamental breach that obligates them to pay the plaintiffs the agreed compensation were based on the adoption of the defendants' version of the information they provided to the plaintiffs prior to the signing of the sale contract – while stating that there were damp defects in the apartment that were repaired by the contractor and are no longer there.  The findings of the polygraph test do not change this in the slightest.  The defendant did not claim that he presented the moisture defects to the plaintiffs as something that existed in the apartment last winter – despite the contractor's repair efforts, and as a matter that will be examined next winter in light of another repair attempt that the contractor made shortly before the apartment was offered for sale.  In the circumstances at hand, this is the disclosure that the defendants should have made.
222. More than necessary: It is highly doubtful whether it is possible to accept the opinion regarding the polygraph as evidence. It is not for nothing that I determined during the course of the inquiry that the proper way to do so is through an agreement.  The statements that were recorded during the defendant's interrogation are not sufficient to pave the way for the submission of the opinion: in order for it to be binding, the plaintiffs should have been given an opportunity to include questions on their behalf that the defendant would be required to answer, to be involved in the precise formulation of the questions that would be addressed to the defendant and to confirm the identity of the examiner.  The plaintiffs objected to the attachment of the opinion as evidence at the time of submission of the summaries and sought to delete the reference to it from the defendants' arguments.

The Defendants' Obligations Towards the Plaintiffs

223. According to the testimony of a court expert, which I received, extensive work must be carried out in the apartment, mainly in the yard, in order to finally solve the problem of dampness. The burden entailed for the plaintiffs does not dissipate only because the repair is the contractor's responsibility.  As stated, the defendant failed to distinguish between an apartment that is sold without a moisture defect and has a contractor's responsibility and an apartment that is subject to responsibility and extensive repairs must be made in order to eradicate the dampness plague.  In his words: "[...] And I certainly don't see any reason to disqualify buying an apartment if now [...] there is a malfunction, there is a warranty, it comes from order and it doesn't come back, I don't understand what the problem is?[p. 69, paras. 15-19].
224. I accept the plaintiff's testimony that if he had known what the condition of the apartment was, he would not have purchased it. The plaintiff emphasized that the apartment was presented to the plaintiffs as an upgraded and new apartment, and its price was determined accordingly [pp. 42, 8-11, 15-27].  This provides support for the determination that in concealing the condition of the apartment and the dampness defects in it as an existing and ongoing thing, the defendants committed a fundamental breach of the sale contract.
225. The claim against the defendants was based on the agreed amount of compensation. In light of all of the above determinations, it should be accepted.
226. The defendants raised an offset claim. According to them, the plaintiffs were late in transferring the third payment under the sale contract so that it was paid on December 2, 2019 instead of November 5, 2019.  For this reason, they sought to deduct from any amount in which the plaintiffs would be owed a sum of NIS 3,000 [paragraph 43.3 of the statement of defense].  There is no reference to this in the plaintiff's affidavit.  The defendant repeated the claim of deduction in his affidavit, while providing an explanation of the amount that was deducted and the manner in which it was calculated [paragraph 42 b]P/1].  Since the issue was raised by the defendants in the statement of defense and in their evidence, I reject the plaintiffs' argument that this is an extension of a prohibited front of the dispute fence [p. 77, paras. 11-17].  The defendant was not questioned about this at all, and his testimony regarding the defendants' right to deduction in the specified amount was not concealed.  It should be accepted.
227. The defendants must pay the plaintiffs, jointly and severally, the agreed compensation in the amount of NIS 176,000 by reducing the amount of the offset in the amount of NIS 3,000, for a total of NIS 173,000, bearing linkage and interest differentials as required by law from the date of filing the claim (September 14, 2020) until the date of the judgment.

Notice to a third party against the contractor

228. The liability for the fundamental breach of the contract lies with the defendants; They could have easily avoided it, while correctly and accurately presenting the condition of the apartment to the plaintiffs with regard to the dampness defects and emphasizing that the last repair carried out by the contractor had not yet stood the test of reality. The duty of disclosure that applies to the seller of an apartment has many purposes: it is intended to enable the buyer to make an informed decision whether he wants to purchase the apartment or whether it is not suitable for him.  It is also intended to protect the seller: if he properly fulfills his duty, he will avoid the risk of conducting legal proceedings and being compensated for the breach.  The defendants therefore had a direct personal interest in correctly presenting the condition of the apartment to the plaintiffs, but they refrained from it and committed the sin of non-disclosure and partial and selective presentation that was deceptive and defined in the sale contract as a fundamental breach.
229. Within the framework of the notice to a third party, the contractor must be obligated to participate in the damage caused to the defendants as a result of their breach of contract – damage that was provided on top of the agreed compensation by reducing the amount of the offset. The contractor also deserves to be criticized.  With due diligence and professionalism, he should have solved the problem of dampness in the apartment during the defendants' residence in it; He was given enough opportunities to do so.  When it became clear that the repair he carried out after the winter in 2018 was unsuccessful and that the sealing work in the laundry hiding place and in the wall between the yard and the apartment did not help prevent the return of signs of dampness inside the apartment, he should have gotten to the root of the problem after seeing the suspected cause in the yard.  Accordingly, it was not enough to re-seal the laundry hiding place and the wall next to the garden after the winter of 2019; Now a more thorough action was needed to ensure that the problem was solved and that the dampness did not return.
230. Indeed, the defendants' liability to the plaintiffs is not diminished because of this. When they decided to sell the apartment, they had to ask the contractor serious questions, who, according to their personal knowledge, was repeatedly called upon to deal with moisture defects in the apartment, but took actions that did not prevent its return in the next winter season.  At the same time, the contractor had to be meticulous and inform the defendants at the end of the re-work in the spring-summer of 2019 that it would be possible to insist on its power to prevent the return of dampness shows only next winter.  Producing documentation in which, at the end of the repair, the landlord signs that the repair was carried out to his satisfaction – without having any real ability to understand its nature and result – is not enough.  This is certainly the case with the apartment in question, where the contractor tried to eradicate the problem of dampness again and again but failed.
231. Contrary to the plaintiffs' claims, the contractor did not make any representation regarding the apartment; The sale contract was entered into and applies only between them and the defendants. The obligation to pay the plaintiffs the agreed compensation is the duty of the defendants.  In the relationship between the defendants and the contractor, on which the notice to a third party revolved, the contractor must partially indemnify the defendants, for his contribution as described above, in the sum of NIS 63,000, which will bear linkage differentials and interest as required by law from the date of filing the claim until the date of the judgment.
232. The court's expert did not determine in his opinion that in order to carry out the necessary work to eliminate the dampness problems, the apartment must be evacuated; This is consistent with the fact that the source of the problem is the yard in which the works instructed will be carried out [Chapters 1-4 of the Appendix to the Pricing of the Works inM/1]. As part of these works, it was noted that the installations in the yard should be dismantled and transferred to custody for the period of the work [ibid., para. 01.001].  Imposing the execution of the works on the contractor also includes this section, with the costs involved therein.
233. The court's expert determined that the ceramic flooring in the bathrooms would have to be dismantled and replaced [ibid., para. 05.1.005]; He did not see this as a reason to evict the apartment from its occupants.  The plaintiffs did not send the expert clarification questions and did not ask him questions during his testimony.  The general repairs in the apartment are minor and are not likely to disrupt the proper course of life in it.
234. It follows that there is no need to vacate the apartment in order to carry out the work ordered by an expert in court, and the plaintiffs should not be awarded compensation for the evacuation of the apartment, storage and transportation.
235. The agreed compensation, which the plaintiffs won, also includes compensation for non-pecuniary damage, cancellation of time, harassment and mental anguish. They should not be awarded double compensation in this regard, while charging the contractor – in addition and separately, for non-pecuniary damage.  This is also justified by the plaintiffs' refusal to notify the contractor of the existence of dampness displays immediately upon discovery in the apartment and to file the claim against him without a warning letter preceding it – while presenting the opinion of the plaintiffs' expert.  This is conduct that has no place and has implications in terms of compensation as well.

Making the repairs

236. The repair work in the apartment will be carried out according to the opinion of the court expert, in accordance with his opinion. The contractor must appoint a professional and skilled person with proven experience in the work listed in the opinion and in the cost appendix included in it.
237. The work will be carried out under close supervision in the apartment of an inspector on behalf of the contractor, who will make sure that the work is carried out as required, with skill and professionalism. They will begin no later than June 8, 2025 and will be carried out consecutively until they are completed.
238. The court's expert will provide the process of executing the works with supreme supervision, while providing instructions regarding the order in which they are executed and examined at the end of each stage – before moving on to the next stage, as stated in his opinion. If there is a need to make decisions during the execution of the works, in order to perform them optimally and to achieve the purpose of the works, the court's expert will decide on the matter (such as whether the flooring in the bathroom needs to be replaced).  In any case of doubt, treatment and correction will be preferred over avoidance.
239. At the end of the execution of the works, the court's expert will approve in writing their completion in accordance with the opinion, while notifying the court. The contractor's responsibility for the works – in accordance with the law and the purchase contract – will apply from the date on which the expert's notice was given.
240. The contractor will bear the salary of an expert in the court for his supervision of the works in the sum of NIS 11,800 (including VAT), in addition to the contractor's share of the agreed compensation. Half of the salary will be paid by June 1, 2025, and the other half will be paid within thirty days of the expert's notification of the completion of the work – all directly to the expert.

Summary

241. The aforesaid is sufficient to decide the actual dispute and there is no need to address arguments beyond that. The ruling on the costs of the proceeding and attorney's fees for it will be done in accordance with the above determinations and the standards of the law.
242. Defendants 1-2 will pay the plaintiffs the following sums, with their obligations jointly and severally: the sum of NIS 173,000 bearing linkage and interest differentials as required by law from the date of filing the claim (September 14, 2020) until the date of the judgment, legal expenses in the amount of NIS 11,500 and attorney's fees (including VAT) in the amount of NIS 11,800 – both in the values of the day of the judgment.
243. Defendants 3-4 will carry out repairs to the apartment as stated above at their own expense and will bear the salary of a court expert for supervising the repair process, with their charges being jointly and severally. In addition, defendants 3-4 jointly and severally will pay the plaintiffs their share of the costs of the proceeding in the amount of NIS 11,500 and attorney's fees (including VAT) in the amount of NIS 11,800 – both in the value of the judgment day.
244. The charges of defendants 1-2 on the one hand and defendants 3-4 on the other are independent and separate. The sums awarded above will be paid to the plaintiffs within thirty days from the date on which the judgment will be served on the defendants, otherwise they will bear linkage differences and interest in accordance with the law from the date of the judgment until the date of actual payment.
245. Defendants 3-4 will pay defendants 1-2 these sums, with their obligations jointly and severally: NIS 63,000 together with linkage differentials and interest as required by law from the date of filing the claim until the day on which defendants 1-2 present to defendants 3-4 a confirmation of the payment of NIS 173,000 to the plaintiffs. If defendants 3-4 do not pay defendants 1-2 this amount within thirty days from the date of presentation of the certificate, it will bear linkage differences and interest as required by law from the date of the judgment until the date of actual payment.
246. Defendants 3-4 will also pay defendants 1-2 the expenses of the notice to a third party (in accordance with the amount charged to defendants 3-4) in the sum of NIS 5,000, as well as attorney's fees, including tax appeal, in the sum of NIS 6,500; These sums will be paid to defendants 1-2 within thirty days from the date on which the judgment will be served on defendants 3-4, otherwise they will bear linkage differentials and interest as required by law from the date of the judgment until the date of actual payment.
247. Beyond these sums, each party will bear its own expenses.

The secretariat will present the judgment to the parties and close the case.