Civil Case (Nazareth) 10551-02-23 Michal Egler vs. Renana Peretz - part 3

At the same time, it is possible to find in the case law a call to consider reducing this trend, but the ruling on this issue is still in force today (the Ajami case, supra, ibid., at paragraph 26).  When we are dealing with an agreement for the sale of real estate, the written requirement in section 8 of the Real Estate Law, 5720-1969 is added to the aforementioned conditions.  In this context, the case law held that an interim document in a real estate transaction in which the conditions of specificity are met, in any case it also satisfies the written requirement (Rabinai case, supra, ibid., at pp.  290-291).

43. Against this general background, we will turn to the examination of the aforementioned elements in our case.

Conclusions:

44. An examination of the document itself and the circumstances surrounding its drafting leads to the conclusion that the parties had the discretion to enter into a binding agreement. The reasons for this will be detailed below.
45. First, this is learned from the language of the document, and in particular clause 1, in which it was determined in decisive language that "the property will be sold" to the plaintiffs, as well as what is stated in clause 5 that "the parties calculated the transaction and reached the conclusion that the terms of the transaction were acceptable to them". This is a clear external expression of the parties' desire to enter into a sale transaction of the property and their commitment to it.  To this we will add what is stated in section 4 of the document in which it is determined that "it shall not be shown and/or presented to anyone"; This stipulation also supports the conclusion that the parties viewed the document as having legal effect, otherwise it is difficult to understand the need to protect its existence (and as stated, no real explanation was given by the defendants for this clause).  To this we will add the fact that the agreement was signed by the parties (the defendant on behalf of the defendant and the plaintiff on behalf of the two plaintiffs), a fact that the case law has seen more than once as an indication of the parties' intention to give binding effect to the document ( the Ajami case, supra, ibid., at paragraph 31 and the references therein).  It is not superfluous to note that even according to the defendants, a binding legal agreement was drawn up between the parties (but according to them, it is an option agreement), so it seems that with regard to the element of finality, no real dispute arises even from their own version.
46. Second, the wording of the "relationship formula" in the document does not qualify or condition the validity of the agreements detailed therein on the signing of a sale agreement later on. As may be recalled, clause 3 states that: "As soon as it is possible, the parties will meet and promote a sale agreement for signing." As a rule, when parties determine in a document of consent that what is stated therein is "subordinate" to the agreement to be signed in the future or "conditional" on the signing of such an agreement, this should be an indication that they view the document as a stage of negotiations only that does not create contractual liability (although this is not necessarily a decisive indication but must be examined as part of all the circumstances, see: Civil Appeal 9247/10 Aharon Rosenberg et al.    Haim Saban et al.  (July 24, 2013), paragraph 13 of the judgment).  In other cases in which the parties stipulated in the memorandum that they would sign an agreement later or within a defined period, without making the agreements between them conditional on this, it was found more than once that this does not attest to a lack of discretion (see the Rabinai case, at p.  288, and the examples therein; the Rosenberg case, supra, para.  17).  In our case, the wording of clause 3 of the agreement shows that the parties intended and assumed that a sale agreement would be signed between them later on, but it was not determined that the validity of the agreements between them is subject to or contingent on this.  Moreover, the fact that the parties determined that they would advance a sale agreement "as soon as possible" also strengthens the conclusion regarding the maturity of the agreements between them in their view (cf.  the Ajami case above, ibid., at paragraph 31).
47. Third, the circumstances of the signing of the document also support the existence of discretion. As detailed above, I saw fit to accept the plaintiffs' version that the postponement of the signing of a sale agreement was rooted in tax considerations on the part of the seller.  It was not, therefore, an authentic view by the parties of the signing of the document as only an interim stage in the negotiations, but rather the creation of a deliberate time gap for the purpose of an external representation that does not relate to their intentions on the axis of relations between them.  In the words of the defendant in his conversation with the plaintiff: "To make the price is the final price, that's it, it's closed and that's after 18 months, the contract is made, that's it, it's a sales contract, but in principle it's formal" (Appendix A, p.  10, paras.  4-6).  To this must be added the fact that the plaintiffs paid in advance at the expense of the consideration (as detailed above - under the cover of rent), which also strengthens the conclusion that the parties were determined to enter into a binding agreement.
48. As for the defendants' claim regarding the failure to report the agreement to the tax authorities, as an indication that they did not see it as a binding contract, I do not find it in the circumstances of the case. Indeed, failure to report to the tax authorities regarding a memorandum of understanding can indicate the limited nature attributed to it by the parties (in our case, the reporting was made only retroactively by the plaintiffs, see p.  8 of the transcript, para.  18).  However, each case is in its own circumstances and does not necessarily have to be decided (the matter of Shasha above, paragraph 9).  As detailed above, the evidentiary fabric presented in this case indicates that the defendants sought to create a representation according to which the agreement between the parties was concluded at a later date, for the purpose of obtaining an exemption from betterment tax.  In the agreement drafted on behalf of the defendants, it was determined that it should not be shown to anyone, and the connection between the two things appears to be apparent, to say the least.  Moreover, even the defendants' counter-version that the parties entered into an option agreement entails a duty to report to the tax authorities that was not made, so this should not be relied upon as evidence of discretion.  In these circumstances, the failure to report in real time does not constitute an indication of the lack of discretion on the part of the parties to enter into a binding agreement, but rather the opposite.  The defendants cannot be heard on a claim regarding such non-reporting, where the initiative to do so was theirs and it was only intended to serve them.

Some:

49. In order for a document to be considered to create a binding contractual liability, it must be specific enough for its purpose and include the main details that are essential to the transaction. As detailed above, the requirement of specificity has been softened in case law over the years, while it has been determined that it may exist even when the document does not include some of the material details of the transaction, provided that these details can be completed, and that these are not details that were in dispute between the parties at the time of signing the memorandum of understanding, and they did not reach an agreement on them.
50. In our case, the document signed by the parties includes material details of the transaction: the identity of the parties, the nature of the transaction, the identification of the sale, the consideration and the burden of taxation. According to the defendants, the agreement does not include many other material issues, in a way that does not allow it to be seen as sufficiently specific.  In this regard, they note the lack of detail of the manner in which the purchase was financed; References to the financing ability of the purchasers; the date of delivery of the property; Guarantee of Receipt of Form 4; Payment dates and liability for defects in the way the property is registered.  With regard to the first four matters, I do not believe that these are material details in the media whose absence negates certain things and can be completed.  Thus, with regard to the date of the transfer of ownership and possession, case law has held more than once that these are details that can be completed in accordance with the provision of section 9 of the Sale Law, 5728-1968 (hereinafter - the Sale Law) (see: Rabinai case, supra, ibid., at p.  289; Friedman case, supra, ibid., at paragraph 34).  The provision of financing by the buyers is a clear undertaking from the agreement between the parties and does not require detail.  As to Form 4, it is clear from the evidence that the defendants made it clear all along and in an unequivocal manner that the matter was their handling and responsibility (transcripts of the conversations in Appendix A to the prosecution's affidavits; conversations between the plaintiffs and the defendant - p.  8, paras.  7-21; p.  12, paras.  4-12; 25, paras.  11-18; conversation between the plaintiff and Adv. Ohana, p.  30, paras.  9).
51. As to the date of payment; as a rule, case law tended to view the date of payment and its spread as a material detail whose absence in the agreement may impair certain things. However, this is not a strict categorical determination, but rather it must be examined in each case according to its circumstances, and in particular whether the parties in the circumstances of the concrete case viewed the said detail as a material condition in the transaction.  Accordingly, case law has more than once recognized the existence of the element of specificity even in the absence of a determination in the agreement as to the dates of payment/distribution of payment, while activating the complementary mechanisms with respect to this detail (Rosenberg supra, paragraphs 14; Rosenberg, supra, para.  34; Weiss, supra, paragraph 4 of the judgment of the Honorable President Hayut, paragraphs 5-6 of the judgment of the Honorable Justice Kabub).  This is subject to the fact that, as stated, this is not a matter on which the parties gave their opinion and did not reach an agreement on it at the time of signing the memorandum of understanding (see Adini above, the majority opinion, in circumstances in which the parties expressed their opinion in the memorandum that the payments would be detailed in the appendix thereto, but such an appendix was not attached).
52. In our case, the agreement is silent regarding the dates of payment. There is no indication that at the time of its signature the parties saw it as a material matter in the engagement or that it was in dispute at the time.  Later, prior to the meeting with Adv. Ohana on November 3, 2022, the plaintiff informed the defendant that they could pay the sum of ILS 1.5 million at the time of signing the sale agreement and the balance within 30 days by means of a mortgage to be taken on the property, and the defendant did not object to this (transcript of a conversation between the plaintiff and the defendant, Appendix A, pp.  11-12, paras.  11-2, paras.  1, respectively).  It follows from the aforesaid that from the outset the date of payment was not the subject of a real dispute between the parties and was not perceived as a material point from their point of view.  This is reinforced by Attorney Ohana's words to the plaintiff during their conversation shortly after the outbreak of the dispute, according to which "...  He wrote a million and one reservations and conditions and we won't accept it, it doesn't matter if there's money or there's no money, don't accept it," and later noted: "The money is irrelevant, if the contract that...  If you do not receive the contract that we sent you" (Appendix 10, p.  1).
53. In the absence of a determination in the document as to the date of payment, it is necessary to examine whether it is possible to fill in the gaps by means of supplementary sources. In this context, it should be noted at the outset that the mere fact that the parties negotiated between them for the purpose of signing a sale agreement does not necessarily indicate a lack of discretion or a lack of sufficient certainty that cannot be completed.  This is typical in a situation such as our case, when the parties formulate an incomplete document of agreement between them and designate the "closure" of all the details for a final agreement to be signed.  In such a situation, conducting such negotiations is necessary for the purpose of formulating agreements on issues that remain open, and sometimes it even serves as an attempt to "improve the positions" of either side.  The case law insisted that the conduct of such negotiations, the exchange of drafts between the parties and the failure to reach an agreed version necessarily indicate a lack of discretion or sufficient specificity in the agreement document that was formulated earlier, while each case was examined according to its circumstances (see: Civil Appeal 9255/11 Yosef Daniel v.  Anonymous et al.  (August 11, 2013), paragraph 21 of the judgment in the Honorable Justice Barak-Erez; the Rosenberg case, supra, ibid., at paragraph 21; the Friedman case, ibid., at paragraph 35).
54. As to the circumstances at hand, as already noted, the plaintiffs requested to pay for the property by means of equity and the balance in mortgage money within 30 days. This was told to the defendant during a conversation that took place between him and the plaintiff before a meeting with Adv. Ohana on November 3, 2022, and he expressed his consent to this.  However, the mortgage issue encountered an obstacle after the plaintiffs first learned in a meeting with Adv. Ohana on November 3, 2022, about the registration problem of the property.  In view of this, the plaintiffs immediately sought legal representation through an attorney in the present proceeding.  In a draft sale agreement that Adv. Ohana forwarded to the plaintiffs' attorney, it was recorded that all the consideration would be paid on the date of signing the contract (subject to a deposit in trust of ILS 100,000 to secure transfer certificates).  In the comments submitted by the plaintiffs' counsel to this draft, it was recorded that at the time of signing, the sum of ILS 133,000 would be paid against the person who registered a warning note, and the balance would be paid by March 20, 2023, of which the sum of ILS 250,000 would be deposited in trust in the hands of the recognized attorney to ensure, inter alia, the arrangement of the manner in which the rights would be registered.  The defendant did not agree to this, as appears from Adv. Ohana's letter dated November 30, 2022.  Shortly thereafter, at the beginning of December 2022, the plaintiffs announced that they agreed to pay the full consideration by the end of that month.  Thus, it was stated both in the plaintiff's notice to the defendant dated December 4, 2022 (Appendix XI1 to the affidavits of the claim), in the notice of counsel for the plaintiffs to Adv. Ohana dated December 8, 2022 (Appendix J to the affidavits of the claim) according to which his clients "agree to pay the full consideration by the end of the month" (Appendix 11 to the affidavits of the claim) and in a telephone conversation between the plaintiff and Adv. Ohana dated December 12, 2022 (Appendix J to the affidavits of the claim).
55. It appears from the aforesaid that in practice, the plaintiffs accepted the seller's demand to pay the full consideration in one payment and without the distribution of payments. According to case law, retroactive consent to the demand of the party arguing against the validity of the agreement can cure a particular problem in the document, a doctrine known in case law as the principle of optimal performance (Ajami case, supra, para.  32; The Green case , supra, ibid., at paragraph 48; The Friedman case, supra, ibid., at paragraph 34).  Moreover, it follows from the above that from the outset (and before the registration problem that does not allow obtaining a mortgage for the specific property was clarified), the parties considered in principle a format of completing the full consideration within 30 days of signing a sale agreement (self-financing + mortgage money) as an appropriate time frame for the payment of the consideration for the property.  In these circumstances, the agreement can be completed at a point in accordance with the provision of section 41 of the Contracts Law, according to which "an obligation whose date has not been agreed upon must be fulfilled within a reasonable time after the conclusion of the contract..." (A similar provision is found in combination with sections 9(a) and 21 of the Sale Law).  Indeed, as a rule, it seems that there is considerable difficulty in adding concrete content to the term "reasonable time" in the context of a real estate sale transaction, but as stated in our case, there is a concrete basis that indicates the parties' own perception of the reasonable time for the obligation to be fulfilled.
56. As to the issue of amending the registration of rights in the land; as already noted, the defendant's rights in the land are poorly registered, so that in plot 259 only 7/24 of the rights are registered in her name, and in another adjacent plot (261) the balance of the rights is registered in her name. From the evidence presented, it appears that Plot 259 (on which the property is built) was created in a parcel process of a source plot, in which the partners had a sharing agreement.  This agreement was registered in the Land Registry, but for a reason that was not clarified, it was not expressed in the framework of the parcellation process.  The wording of the registration of Plot 259 shows that the parcellation was registered on December 15, 2021, i.e., after the signing of the agreement between the parties.  Therefore, both parties (as they even testified before me) were not aware of anything at the time of signing the agreement and could not even know about it (since Plot 259 as a registered unit was created and registered only afterwards).  Hence, it is clear that in the agreement between the parties they did not see fit to establish an explicit provision in relation to this specific point and to determine the responsibility for regulating the registration.  However, I am of the opinion that this matter can also be completed.  This, even without the need to require external supplementary provisions, since the interpretation of the agreement leads to the conclusion that the responsibility in this matter lies with the plaintiffs.  Clause 7 of the agreement between the parties stipulates that "neither party shall have a claim regarding the quality of the property, even at the time of delivery of possession of the sale." The term "the nature of the property" is broad enough to include the legal status of the asset.  In accordance with this agreement, the risk of a change that occurred after the agreement falls on the shoulders of the plaintiffs.  This is the interpretation that the defendants and the plaintiffs claim in their summaries do not dispute this.  Moreover, although in the plaintiffs' attorney's comments to the draft sale agreement, it was initially recorded that the seller would be responsible for amending the manner in which the property was registered, and that accordingly the sum of ILS 250,000 would be held in trust by her attorney until the amendment was made, shortly thereafter, at the beginning of December 2022, the plaintiffs announced that they agreed to pay the full consideration by the end of that month without such delay, and thus implicitly agreed to the defendant's position on this point.  In this context, it should be noted that in the comments of the plaintiffs' counsel for the draft sale agreement, there was a note addressed to Adv. Ohana, according to which: "In our conversation, you stated that the seller takes it upon herself at no cost." It therefore appears that the comments included by the plaintiffs' counsel in the draft on this point were related to what he thought at the time was acceptable to Adv. Ohana, in a manner that is related to the plaintiffs' claim in their summaries that this is at most a misunderstanding (paragraph 64 of the summaries).  It has not escaped my notice that in their testimony the plaintiffs stated that they believed that the defendant should act to amend the registration, but as stated, they did not disagree at all in their summaries on the defendants' interpretation of the provision of clause 7 of the agreement, and even their conduct in real time implies otherwise.
57. The conclusion from all of this is that a binding agreement was entered into between the parties, in which both the requirement of finality, the requirement of specificity, with the assistance of supplementary sources, and the requirement of writing are met. I will add that in the present case there is strong evidence of the existence of the intention to enter into the transaction, as detailed in detail above.  In these circumstances, and in accordance with the approach used in case law, at the very least, a suspicious approach should be taken with respect to the claim of a party seeking to disavow it on the grounds of a lack of sufficient specificity in its terms, and it is possible to relax the requirement of specificity (the Green case, supra, ibid., at paragraph 42).
58. Before concluding this chapter, I will address the defendants' argument that the plaintiffs did not have the financing required for the purchase of the property at all, and that in view of their failure to present reliable confirmation of the existence of such financing, as they were required to do in Adv. Ohana's letter of November 6, 2022, there was no point in continuing the negotiations. I consider rejecting this argument.  With regard to the demand in the aforementioned letter to present confirmation of the full amount of the purchase by the plaintiffs within 7 days, even without addressing the issue of bad faith in the demand in the concrete circumstances, after the plaintiffs' ISA announced on November 11, 2022 that the plaintiffs were able to pay the full consideration, Adv. Ohana did not insist on the demand to present references, but rather forwarded a draft of the sale agreement.  Even in the continuation of the correspondence between the parties, the demand for the transfer of a reference to the existence of the financing was no longer raised, so it appears that this matter has been neglected.  In this regard, I will also refer to the testimony of Adv. Ohana, according to which he sent the draft of the sale agreement after the plaintiffs' attorney informed him that the plaintiffs could pay the full consideration - satisfied him (p.  19 of the Proturol, paras.  10-12).  In any event, it emerges that "in real time" this matter was not the focus of the defendants' decision to withdraw from the transaction.  As to the plaintiffs' financial sources; There is no dispute that the plaintiffs sold their home in the Golan Heights on December 6, 2021 for ILS 2.2 million (the sale agreement was attached as Appendix B to the affidavits of the claim), so that the claim regarding equity that they had at that time for the purpose of purchasing the property is certainly not absorbed from the air.  Attached to their affidavits were a bank account document attesting to a balance of approximately ILS 1.4 million.  The defendants refer to the plaintiff's answer in her interrogation when she was asked about the date on which the balance was issued, that it was issued several months ago and that the balance is from now on (p.  18, s.  34, p.  19, paras.  6-7), and claim that this proves that at the time of the negotiations between the parties, the plaintiffs did not have the sum in question.  I do not see fit to accept the argument.  The plaintiff's answers on this point were not unequivocal, and it is clear that she did not remember to say when the document came from, but this does not prove anything regarding the existence of the financing in the hands of the plaintiffs at the relevant time.  At the same time, the plaintiff testified that the said balance was from the period after they moved to the property and originated from the sale of the house in Merom Golan (p.  37 of the transcript, paras.  3-8).  This version fits in the most logical way with the date on which the house was sold and with the plaintiffs' conduct "in real time", and I see no reason not to accept it.  As to the balance of the consideration, the plaintiffs testified that the plaintiff's father came to their aid quickly and agreed to mortgage his house in order to receive financing in the amount of ILS 1 million.  This version is well established in the documents that were presented, which attest to the granting of approval in principle to the father to receive a loan in the amount of ILS 1 million (a "reverse mortgage") for the purpose of "helping to purchase an apartment for a daughter" (Ayalon Insurance Company document in a tax appeal dated November 21, 2022, Appendix I1 to the affidavits of the claim).

Lack of Rationale in Negotiations:

59. The plaintiffs claim that to the extent that it is determined that the document signed by the parties does not establish a valid contractual liability, in view of the defendants' bad faith conduct that prevented the signing of a sale agreement, the transaction should be viewed as having been perfected.
60. In view of my conclusion above, there is no need to address the issue of whether a contract can be viewed as having been perfected where one of the parties' conduct in a lack of consent prevented it, a position that is reflected in case law (Civil Appeal 579/83 Sonnenstein v. Gabso Brothers, IsrSC 42(2) 278, the judgment of the Honorable Justice Barak; Civil Appeal 829/80 Shikun Ovdim v.  Zepnik, IsrSC 37(1) 579).  In any case, there is no need to seek the alternative remedy requested in the claim (compensation for the loss of an opportunity to purchase an alternative property or subsistence compensation), but only for the relief that was claimed cumulatively for non-pecuniary damage due to conduct in a lack of proper conduct.
61. On the merits, I am of the opinion that the conduct of the defendants in this case at the stage at which the parties negotiated for the purpose of signing a final agreement, is inconsistent with the duty to act in an acceptable manner and in good faith, as emerges from the details of the circumstances below. First, immediately after the meeting on November 3, 2022, the defendants dictated a very tight schedule.  They demanded that the plaintiffs present them within 7 days with proof of the full payment in their hands, and later demanded that the plaintiffs sign the draft sale agreement that they submitted within two days , otherwise the negotiations would be concluded immediately.  All this, while threatening to evict the plaintiffs from the property in which they have been living for about a year.  The defendants knew that the plaintiffs intended to finance the purchase of the property, inter alia, by taking out a mortgage (and, as stated, they did not object to this) and were well aware of the fact that for the first time the plaintiffs were informed of the registration problem and the resulting issue regarding the possibility of obtaining a mortgage, only at a meeting on November 3, 2022.  In the situation that has been created, it is clear that the plaintiffs need time to prepare for the alternative.  It should be emphasized that no substantive explanation was given by the defendants for creating such a tight schedule at the said point in time, especially after the entire year that passed since the signing of the agreement between the parties did not accelerate the way for the defendants to advance the transaction, and it was the plaintiffs who requested its advancement.  Subsequently, the defendants refused to hold any negotiations regarding the wording of the draft agreement written by their counsel; Their refusal was sweeping, without addressing this or that point in detail, without focusing on substantive points of disagreement with the plaintiffs and blocking the possibility of a substantive discourse.  Instead, they demanded that the draft be signed by them, "such shall be seen and sanctified," and that they should be improvised.  Moreover, when the plaintiffs announced shortly thereafter that they were ready to comply with the defendants' demands and that they could pay all the price for the property within a short time (after quickly organizing to obtain an alternative source of financing), the defendants cut off contact, did not answer the phones/text messages and refused any cooperation in order to advance the engagement.
62. The picture that emerges from the entire sequence described above is the installation of an obstacle on the part of the defendants to the realization of the transaction, as opposed to substantive disagreements regarding the dates of payment, as claimed by the defendants. We will reiterate Adv. Ohana's words to the plaintiff after she announced their agreement to pay the entire consideration by the end of the month, that: "The money is irrelevant, if the contract that...  If you do not receive the contract that we sent you" (Appendix 10, p.  1).  It appears from this that even at this stage and in retrospect, the issue of the date of payment was not the focus of the matter.
63. It should be emphasized that at the aforementioned point in time, the parties were at an advanced stage of the engagement between them. The plaintiffs relied on the agreements between the parties, moved into the property a year earlier, and shaped their life accordingly.  They even paid a considerable amount in advance in accordance with the parties' agreements.  From the outset, the defendant presented them with a representation that this was an agreed transaction and that the signing of a sale agreement was nothing but a "formal" matter, as he put it (Appendix A to the prosecution's affidavits, p.  10 of the transcript, paras.  1-6).  The plaintiffs cooperated with the defendant in his motions with respect to the structure of the engagement and its split as described above, which stemmed from considerations relating to the seller only.  Against the background of all this, the conduct of the defendants at the stage when the parties approached the formulation of a final agreement, as described above, while swinging the sword of eviction over the plaintiffs' heads at the same time, does not, in my opinion, meet the required standard of acceptable conduct and good faith.

Remedy:

64. The remedies claimed in the lawsuit are declaratory relief regarding the existence of a valid and binding agreement between the parties for the sale of the property to the plaintiffs and the remedy of enforcing it. In addition, an alternative compensation remedy is claimed to the extent that the main remedy (subsistence compensation) is postponed, and a cumulative relief of compensation for mental anguish.
65. On the basis of all of the above and my conclusions detailed, a declaratory relief is hereby granted according to which a valid and binding agreement was entered into between the parties for the sale of the property to the plaintiffs. In accordance with the above with regard to the date of payment, the consideration will be paid to the defendant in one payment upon completion of the following by the parties, and against the transfer of the rights.  The rights will be transferred to the plaintiffs as they are currently registered in the defendant's name.
66. In order to determine the methods of implementation and the arrangements involved therein, the parties will act in cooperation and in good faith to formulate agreements. If this is not successful for the parties, and it is hoped that this will not happen, each of them will be able to petition in an appropriate lawsuit for a criminal case - an extension of the date for a trial in this matter, including a request to appoint a receiver for the purpose of realizing the engagement.
67. In the framework of the above remedies, I have given my attention to the question of the valuation of the contractual consideration. The agreement did not stipulate by the parties that the agreed consideration would be assessed on the date of actual payment.  In these circumstances, and given that if a sale agreement had been signed, the consideration was expected to be paid by the end of December 2022, I do not see fit to order the valuation of the contractual amount by that date.  As for the period thereafter; Section 4 of the Contracts Law (Remedies for Breach of Contract), 5731-1970, states that the enforcement remedy may be conditioned "on the fulfillment of the injured party's obligations or on the guarantee of their fulfillment or on other conditions required by the contract according to the circumstances of the case." The case law saw this as a basis for ordering the valuation of the financial positives of the injured party in the breached contract, in appropriate cases, while in this context the contribution of each of the parties to the breach and all the circumstances of the matter are considered, inter alia ( Shasha case, supra, paragraph 14).  In our case, it was the defendants who prevented the payment from being made on time, as detailed in detail above.  On the other hand, given the length of time that has elapsed, since the plaintiffs claim a substantial increase in real estate prices in the past period, and given that part of the consideration remained in the hands of the plaintiffs throughout the period, I am of the opinion that non-valuation is at all inappropriate to the circumstances of the case.  In the totality of the circumstances, I consider ordering a partial valuation, in such a way that the sum of ILS 1.4 million of the contractual consideration will bear linkage and interest differentials in accordance with the law from the date determined above (January 1, 2023) until the actual payment, and the remainder of the consideration will bear linkage differences only from the aforementioned date until the actual payment.  The payments paid to the defendants and agreed to be offset will also be assessed (linkage and interest) as of the aforementioned date.
68. As for a claim for compensation between non-pecuniary damages; After considering the matter, and not without hesitation, I found that the defendants should not be obligated to pay such compensation. This is in view of the fact that the two parties saw that they were acting together in a flawed manner in their way of formulating a simple contractual agreement, while creating a crooked and partly fictitious contractual array (although the defendants' part in the matter was more dominant), which seems to have contributed to a great extent to the development of the dispute and brought it to this point.
69. Therefore, the claim is accepted in accordance with the above.
70. The defendants will pay the plaintiffs expenses and attorney's fees in the total amount of ILS 40,000, and in this regard I have considered the costs of the proceeding and all the circumstances of the matter.

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