It's important for us to understand if there's a deal.
It depends on the planning solution..." [Emphasis in the original - S.A.] (Appendix 7 to Shlomi's affidavit).
Shlomi's claim that this correspondence is intended to motivate the planning authorities to act (see: Minutes of the hearing of July 16, 2023; p. 128, paras. 13-20) does not provide a full response to the harsh language of the announcement that Shufersal does not "understand" whether there is "or is not" a transaction.
- Similarly, in an e-mail message dated September 13, 2020, sent on behalf of a person who Shemesh considered to be a representative on its behalf, Mr. Dudi Gino (regarding the question of Mr. Gino's status, see the minutes of the hearing of February 12, 2024; p. 102), to representatives of Shufersal, to whom Yossi and Yael wrote, among others, it was written as follows:
"With the previous specifications, there is no deal.
I try to create a logical and reasonable deal and not one that costs me years without rental income.
Attached are my comments.
Please update in any direction." [Emphasis added] (See Appendix 6 to Yossi's affidavit).
- Thus, the manner in which the correspondence between Shufersal and Shem was worded during the negotiations is a certain expression, even if not decisive, of the fact that they did not see themselves as bound by a binding contract.
- Signing of two additional specifications - As mentioned, after Gashem signed the commercial terms document, the parties negotiated the rest of the terms of the agreement and in particular regarding the technical specifications of the leased property. As a result of these negotiations, Geshem signed two additional specifications, one in April 2020 and the other in September 2020, which include a change of the first specification, which it signed alongside the commercial terms document.
- Shufersal believes that Geshem's signature on additional specifications constitutes evidence that it believed that the commercial terms document is a binding agreement. According to her, the signing of the specifications is part of the execution of the commercial terms document by the leased planner. On the other hand, the defendants claim that the signing of the additional specifications indicates that at the time of signing the commercial terms document, a binding contract between the parties was not perfected, since the specification - which is a material condition - was not agreed upon between the parties.
- I am of the opinion that it is not possible to deduce from the signing of the additional specifications an unequivocal expression of the intentions of the parties, one way or the other. Correspondence between the parties indicates that after Gashem signed the commercial terms document, the parties disagreed on the question of the technical specifications of the leased property. An examination of the correspondence between the parties (some of which was even cited above) shows that the parties negotiated the planning of the property. The signing of the specifications indicates that a certain agreement was reached during the negotiations (see Yossi's testimony on this matter in the minutes of the hearing of February 12, 2024; p. 53). It cannot be seen as the implementation of a binding agreement, on the one hand, or to testify that the parties did not reach agreements, on the other.
- I will note that apart from the signing of the additional specifications - which, as stated, constitutes part of the negotiations between Shufersal and Shem - no evidence was brought before me of operative actions for the planning of the leased property (as opposed to contacts between the parties in order to reach agreements).
- Publications in the media on behalf of Geshem - In the publications for the purpose of marketing the project from November 2020, Geshem made use of the name and trademark of Shufersal while presenting a representation that Shufersal was renting a project (see Appendix 5 to Shlomi's affidavit).
- According to Yossi, the publications were made with the consent of Shufersal and included other potential tenants who negotiated with Geshem to rent a property in the project and did not sign a binding contract with Geshem. Thus, according to him, other business owners mentioned in the publication - Armitage, Hezi Hamama and Max Stock - ultimately did not sign a lease agreement with Geshem (minutes of the hearing of February 12, 2024; pp. 96-99).
- Indeed, the publication of Shufersal's name as a tenant in the project is a certain indication that Geshem believed that an agreement had been signed between the parties. However, this is not an unequivocal indication, and this is also in light of Yossi's claim (which was not contradicted) that in the framework of these publications, Geshem published additional potential tenants with whom a binding agreement was not signed (and these statements do not express any normative position on Geshem's conduct).
- Presentation on behalf of Geshem - At a certain point, Shufersal considered purchasing rights to the commercial center in the project (as was ultimately done by Zim). Therefore, in November-December 2020, Geshem sent Shufersal a presentation that included, inter alia, a table entitled "Tenants' Details" (p. 27 of Appendix 6 to Shlomi's affidavit). The table presented the names of businesses and next to each of them the status of the stage in the negotiations, segmenting them into six different categories: "Registration form signed"; "Preliminary negotiations"; "Advanced negotiations"; "Principles signed"; "Signs Principles for Signing a Contract"; "A contract has been signed." Next to Shufersal's name it was noted that "Principles were signed." In addition, on page 45 of the presentation, it is stated that "contracts/principles have been signed for the rental of 6,000 square meters with anchor tenants (Shufersal, BE, Swift Gym Chain and others).
- The parties disagree on the significance that should be given to the presentation. According to Shufersal, the presentation expresses that Geshem believed that it was connected to a binding agreement with Shufersal, while the defendants believe that the presentation shows that Geshem believed that there was no binding engagement between the parties (see Yossi's testimony in the transcript of February 12, 2024; p. 75, paras. 9-23).
I am of the opinion that it is not possible to draw an unequivocal conclusion from the words "principles were signed", one way or another. All that is mentioned in this document is the fact that "principles have been signed." This does not attest to a binding document, just as it does not testify that the document is not binding.
- Contacts between the parties after the signing of the agreement between Geshem and Zim - After the signing of the agreement between Geshem and Zim, contacts began between Shufersal and Shem.
- In an e-mail message Yael sent to Yossi on June 6, 2021, she stated to him as follows:
"Yossi Shalom