Civil Case (B.Y.) 16923-01-23 Maya Dar v. Anift Ltd. - part 5

Failure to correct the deficiencies specified in clause 9 of the agreement

34. In the framework of clause 9 of the agreement, the plaintiff waived any claim of defect or incompatibility with respect to the hairdresser, provided that the defendant corrects three defects by April 20, 2022: repairing the vent, arranging the air conditioner pipe, and replacing the old pipe and faucet in the shower with new ones.

There is no dispute that the defendant did not amend what was required to be amended on the specified date of the agreements (Shilon's testimony, pp.  60, paras.  1-2; p.  70, paras.  4-5).

35. The defendant made a repair to the air conditioner and vent on May 31, 2022 (paragraph 28 of Shilon's affidavit; paragraph 27 of Efrati's affidavit; pp. 308-310 of the defendant's affidavits).  However, the plaintiff testified, a testimony supported by correspondence from real time, which was not concealed, that despite the corrections, Honta did not work.  The plaintiff's testimony that the pipe in the shower was replaced only during the month of August, while the faucet was not replaced at all was not contradicted (paragraph 14 of the plaintiff's affidavit; Appendix 14 to the plaintiff's affidavit).
36. Thus, from the evidence it can be determined that the defendant breached its contractual obligation to correct the defects mentioned in clause 9 of the agreement.

Renovation work

37. There is no dispute that during the months of April to June, renovation work was carried out in the store (Efrati's testimony, p. 36, 26).  The plaintiff claims that the renovation work continued until August, and I found it possible to accept her version, which is supported by Sophie's testimony (which was not concealed) and correspondence and photographs from real time (Appendices 12-15 to the plaintiff's affidavit; paragraph 6 of the final affidavit).
38. Sophie testified about the difficulty in operating the barbershop alongside the renovation work, which lasted for several months. Sophie testified that these made it difficult for the barbershop to operate properly, both because of the obstacles placed on the path to the barbershop and because of the noises that frightened the dogs.  The renovation work also caused the branch to be flooded with rats and dust and paint fell into the area leading to the barbershop.  Sophie testified that due to the dust on the floor, the plaintiff had to pick up the dogs so that they would not get dirty after the treatment (pp.  3, 3-5 and 14).  Sophie testified that the plaintiff tried to continue working despite the obstacles posed by the renovation work; However, from the date of the collapse of the square from the ceiling of the barbershop into the bathtub as a result of a water leak, the plaintiff stopped working, because the water leaks to the barbershop continued until August and caused the barbershop to flood and wet the equipment in such a way that it was not possible to enter the barbershop (paragraphs 6-8 of the final affidavit; Appendix J2 to the plaintiff's affidavit; Appendix H to the plaintiff's affidavit; Appendix J to the plaintiff's affidavit; ibid., at pp.  3, 24-27 and at pp.  4, para.  17).  This is a reliable, objective witness who has no interest in the outcome of the lawsuit.  I found her testimony to be reliable, coherent, and consistent with what was stated in the affidavit.  Thus, on the basis of her testimony, which, as stated, is supported by evidence from real time, it can be determined that the renovation work created a real difficulty for the continuation of the barbershop's activity, and the plaintiff's decision not to operate it during the renovation work is not an unreasonable decision.
39. I will add that the difficulty in continuing the regular operation of the barbershop clearly arises, as a litigant admits, from the parties' agreements during the month of August 2022.

The Agreements from August 2022 and the Defendant's Violations

40. Following the difficulty in continuing the barbershop's activity alongside the renovation work, the plaintiff, through her attorney, sent a warning letter regarding the breach of the agreement on August 2, 2022 (Appendix 11 to the plaintiff's affidavit). Following dialogue and negotiations, the parties reached agreed principles that were put in writing and received Shilon's approval on August 21, 2022.  In accordance with these principles, it was agreed as follows:
41. The existing hairdresser and access to it will be qualified for work until August 22, 2022 - including the ceiling and without leaks and vents;
42. Within two weeks, a new hairdresser will be built;

• It was agreed that the plans of the barbershop would be communicated to the plaintiff and that the defendant would take into account her comments regarding the design of the barbershop;

1. If the new barbershop is not built during the two weeks, the plaintiff will continue to work in the existing barbershop but will not pay rent until the move to the new barbershop;
2. It was also agreed that the plaintiff is entitled to a refund of rent for the period from April to August.

Thus, these agreements, and in particular the agreement that the plaintiff is entitled to a refund of rent for the period from the beginning of the lease period until August, that it was not possible to operate the barbershop in a reasonable and continuous manner.

41. The defendant argued that the agreements of August 21, 2022 should not be suspended because the parties reached agreements later, on August 29, 2022, which constitute the only binding agreements (hereinafter: the "Late Agreements"). Therefore, and in light of the language of the later agreements, the defendant never undertook to involve the plaintiff in the planning and design of the barbershop (paragraphs 31-32 of the defendant's summaries).  This argument, which stands in complete contradiction to Shilon's approval, should not be accepted.  In response to the email message of the plaintiff's counsel dated August 21, 2022, Shilon replied "acceptable and approved" (message dated August 21, 2022 at 12:59, Appendix XI1 above).  This is a clear and explicit agreement that was put to me in writing.
42. These agreements were also not fulfilled on time.

Even if I follow the defendant's position that the ceiling was partially arranged until the construction of the new barbershop and thus fulfilled its obligation; Thus, there is no dispute that the Honta was not arranged by the stated date (Shilon's email message of August 24, 2022, Appendix 14 to the plaintiff's affidavit).

43. Following further discussion between the parties, the parties reached the late agreements, dated August 29, 2022, that the plaintiff would not work in the existing barbershop until the new barbershop was prepared on September 7, 2022. It was further agreed that the plaintiff would receive a refund of three months' rent (Appendix 15).  As Shilon announced, there were no changes in the timetable for the construction of the barbershop, but as soon as they are, he will update.  These agreements did not cancel the previous agreements.  As can be seen from the language of the later agreements, they came to adapt the previous agreements to the delay that occurred in the construction of the new barbershop, but neither they nor the parties stated in real time that they were intended to cancel the previous agreements.
44. There is no dispute that the new barbershop was not opened on the scheduled date (Appendix 11; paragraph 53 of Shilon's affidavit). The plans of the barbershop were also not communicated to the plaintiff.  As stated above, on November 27, 2022, the plaintiff notified the defendant of the cancellation of the agreement.
45. The defendant claims that the plaintiff was the one who acted in bad faith by not operating the original barbershop despite its defects and by refusing to operate the new barbershop (paragraph 89 of the defendant's summaries). This argument should not be accepted.  The plaintiff refused to operate the barbershop while the renovation was still underway in August, about five months after she was supposed to operate the barbershop, without any interruptions.  This is not a lack of good faith, but rather a lack of trust on the part of the plaintiff in the defendant, who repeatedly breached her obligations, in the sense of "reaching the point of death".
46. Similarly, I did not find it acceptable to accept the defendant's argument that the plaintiff acted in bad faith by raising additional demands allegedly (paragraphs 90-91 of the defendant's summaries). As stated above, the parties agreed that the plaintiff would be able to review the plans of the barbershop and that she would be able to transmit her comments to these plans.  As stated above, these agreements have not been cancelled or changed.

Here, too, agreements and reality are separate.  While Shilon reached agreements with the plaintiff's counsel, Efrati testified that he was not at all aware of the parties' agreements according to which the plans of the barbershop would be transferred to the plaintiff and that the defendant would take into account her comments regarding the design of the barbershop.  Efrati testified that he did not see any need for the plaintiff's involvement in the planning, and that Shilon asked him to involve the plaintiff in the planning only after the barbershop had already been planned, the equipment was ordered for it and it was built (pp.  48, 20-25).  It is not possible to determine whether the equipment that was installed is proper equipment or whether it falls below the condition of the original barbershop, in the absence of evidence in this regard (so although the defendant testified that the barbershop was inspected by a hairdresser with seniority and experience and was found suitable for operation, this was not brought to testify (paragraph 65 of Shilon's affidavit)).