In his letter, Mr. Appel claims that although a month has passed since the aforementioned protocol was drafted, the correction of the deficiencies in all the stores has been carried out only partially. Thus, he mentions the issue of connecting electricity, water (menorah), a low-voltage cable for each store, preparation for toilets for each store, feeding hoods, a water hose for each store, in accordance with the instructions of the fire services, etc. It should be noted that at that stage it was noted that following the aforementioned protocol, walls were divided between the stores (paragraph 5 of this letter).
Mr. Appel further clarifies that following the initial delivery protocol and the undertaking to correct the defects, the plaintiff contracted with tenants to the stores and undertook to make a strong delivery of them, on August 10, 2019.
"As of today, due to the current situation on the ground and the failure to correct the defects, we are unable to make a delivery, which causes us financial damages vis-à-vis the tenants."
It seems that Mr. Appel's words in the letter speak for themselves, and certainly do not strengthen the defendant's position, as if Mr. Appel gave his consent to the delay in delivery; On the contrary: Mr. Appel expressed the exact opposite position. It is not impossible to mention in this context the District Court's decision in the parallel proceeding, according to which the defendant did not produce any written evidence or other evidence regarding the plaintiff's alleged consent to the delay in delivery, after Mr. Appel was cross-examined in the parallel proceeding about his affidavit in cross-examination (I will refer to paragraphs 24-29 of the judgment in the parallel proceeding, and in particular to the conclusion stated in paragraphs 29 there). It therefore arises that the burden of proving that Mr. Appel thought differently from what was stated in his letter, as well as acted contrary to the plaintiff's systematic conduct, which contacted the defendant in a series of letters and advised her of the need to vacate the store, is actually on the defendant. In the margins of this section, I will note that already in the course of Mr. Steindam's cross-examination, the plaintiff's counsel raised the defendant's evidentiary difficulty in the absence of Mr. Appel being summoned to testify (p. 42, paras. 22-24), but the defendant's counsel did not pay attention to this important remark.
- In this context, I will note that in accordance with the laws of evidence, a distinction must be made between two burdens of proof: the burden of persuasion and the burden of proof. While the burden of persuasion expresses the primary duty imposed on a party to prove his claims against his opponent, the burden of bringing evidence expresses a procedural arrangement that determines the order of the plea and the presentation of the evidence. Normally, both the burden of persuasion and the burden of proof rests on the shoulders of the plaintiff. This, taking into account the guiding principle in our legal system, according to which "one who takes out the evidence from his friend", which means that a person who claims something from the presumption of a defendant is required to bring proof of his statements. However, sometimes considerations of legal policy lead to the transfer of the burden of proof to the defendant (see: Yaakov Kedmi on the Evidence, Part Four, 5770-2009, pp. 1719-1724; hereinafter: Kedmi). Thus, for example, one can enumerate among these situations the defense argument of the type of "admission and dismissal", a claim which, as stated above, exists in our case.
- The situation of admission and dismissal arises whenever a defendant admits the essential facts of the cause of action and adds other arguments that may lead to its rejection. This type of situation has both a substantive and a deliberative aspect. The essential aspect means that the burden of persuasion is transferred to the defendant's shoulders. This means that if at the end of the proceeding the court is not convinced of the defendant's claims, then the plaintiff will win his claim, since the defendant has in fact admitted all of its components. The procedural aspect is that the usual plea bargain set forth in Regulation 66 of the Civil Procedure Regulations, 5779-2018 has been reversed on its face (see extensive detail on this issue in Prof. Yuval Sinai's fascinating article, The Doctrine of Confession and Dismissal and the Rules of the Burden of Persuasion in Civil Law, Mishpat Studies 24, 2008). As stated, this is the state of affairs in our case.
- Even in the margins of the matter, and not on the margins of their importance, I will refer to the fact that Mr. Netanel himself admits that his relationship was actually with Appel, no less than with her father, Mr. Appel, despite the fact that it was mentioned repeatedly. In this regard, I will refer to the words of Mr. Netanel, who complained that Mrs. Appel came to his office twice a month (p. 43, paras. 35-39), and called him, according to him, 30 times a month (p. 44, s. 3). According to him, Mrs. Appel is "destroying her father." (ibid., s. 9). This is also consistent with the testimony of Adv. Braunstein, who testifies that Mr. Appel was indeed in regular contact with Mr. Netanel and there was a discussion between them on the matter (p. 32, paras. 1-16); however, according to her, the relationship between Mr. Appel and Mr. Netanel ceased, when the daughter, Mrs. Appel, decided to "quarrel and make a lot of money on our backs." (ibid., s. 22), and all this, while her father, Mr. Appel, is lying on his sickbed (ibid., s. 31). All of this is consistent with the fact that the meeting that was transcribed was in the presence of Ms. Appel, when it was made clear from the very beginning that Mr. Appel was abroad. This means that Ms. Appel did indeed conduct the negotiations and the implementation of the transaction on behalf of the plaintiff. Needless to say, as stated above, the defendant was unable to present a single document in which Mr. Appel confirms its position regarding the delay in delivery, and as Mr. Netanel himself clarified, he did not need any permission from Mr. Appel, in circumstances in which if Mr. Appel had asked for it, we would have vacated the store immediately, but he simply did not ask for it. It is clear that there is no room for such business conduct contrary to a signed agreement.
The date of delivery of the store and the issue of signing the delivery protocol
- As stated above, according to the plaintiff, the store was delivered only on August 27, 2019. The defendant disagrees and claims that the store was delivered to the plaintiff as early as October 28, 2018, on the date of receipt of Form 4, i.e., 10 months earlier.
- We will first turn to the plaintiff's signature on the delivery protocol. It was signed by Mr. Steindem but on August 27, 2019 (Appendix C to Mr. Steindem's affidavit). In the framework of the delivery paragraph, it was clarified that possession of the store was delivered on the day of signing, i.e., on August 27, 2019. In this context, it should be noted that in the original draft, which was prepared by the defendant, it was written that the delivery had been made - "a long time ago", but Mr. Steindem himself deleted these words and wrote in their place the aforementioned delivery date - 27 August 2019. It should be noted that the delivery protocol, with the addition of the deletion and amendment, was attached by Mr. Netanel himself, as Appendix 13 to his affidavit. For the sake of convenience, I will attach a copy of the document as follows, with the copy before us being taken from Appendix C to Mr. Steindem's affidavit:
- For the sake of comparison, I will also refer to Ms. Appel's signature on a similar delivery protocol (p. 128 to the appendices to Mr. Steindam's affidavit), which dealt with the stores that were delivered to A.P.Z. Housing, while in this framework nothing was amended in the document, which was also prepared by the defendant, and in which it was written that the stores had been delivered "a long time ago".
- It appears from the compilation so far that it is not possible to learn from the delivery protocol that it constitutes an admission by the plaintiff that the delivery of the store was carried out long ago. On the contrary, and as stated above, the words "long ago" were deleted and in their place Mr. Steindem noted that the delivery was made on the day the delivery protocol was signed, i.e., on August 27, 2019.
- Moreover, and as appears from the transcript, as well as from Ms. Appel's testimony, it was Mr. Netanel who demanded the addition of the words "long ago", in order to cover up the significant delay in delivery, while not mentioning in the delivery protocol when it was made, but the plaintiff refused to recognize this interpretation. In this context, I will refer in particular to the words of Ms. Appel, who interprets the conduct of Mr. Netanel and Adv. Eti Mosko on behalf of the plaintiff, at the time of delivery and the signing of the delivery paragraph, as follows:
"This protocol was made at Aryeh's request, not at Eti's request, OK? Aryeh, who was so insistent on writing a transcript, insisted on inserting words in it that were not acceptable to her for one reason or another.....