In light of this protocol and in light of this meeting, we were going to come, get the key, and hear Aryeh doing exactly what he did casually: pick up the phone and tell people to get out of the property, the property is not yours anymore. Close the story, tell him Lion, thank you very much, and leave. Whoever insisted on writing a protocol from here, writing the word long ago, to start having a discussion of, between us at some point I also put myself aside in the discussion because it seems to me that you know how to look for interpretations of what 'it's long ago' and so on, it's a lion it's not us." (p. 10, paras. 12-14, and 23-29).
- Moreover, Mr. Netanel himself admits that the store was vacated by the defendant only on August 27, 2019, at the request of Mrs. Appel, who acted on the matter on behalf of her father, Mr. Appel (p. 58, paras. 5-22), while Mr. Netanel admits that the store was not vacated earlier. Counsel for the plaintiff presents Mr. Netanel with his words in the transcript, according to which he asked the defendant's employee, Kiko Nissim, to vacate the store only on August 27, 2019, and he admits to this (see especially paras. 26-27, ibid.). Moreover, when Mr. Netanel is presented with the relevant photographs, he admits that the store was in fact used as the defendant's office up to the aforementioned date (p. 59, paras. 13-14, 27-28 and 36, as well as p. 60, paras. 1, 6 and 9). More than necessary, Mr. Netanel argues that he does not need the plaintiff's permission to store the equipment in the plaintiff's store (ibid., para. 27), just as he does not understand the demand to pay usage fees for the store (ibid., para. 33).
- In the margins and not in the margins of their importance, I will note that in my opinion, and taking into account the importance that Mr. Netanel attributed to the delivery protocol, as it emerges from the arguments from the transcript, it appears that Mr. Netanel did indeed try to prove through the transcript that the plaintiff had waived her claims regarding a delay in the delivery date, when it is clear that this was not the intention of the plaintiff's representatives, both from their conduct in the framework of the meeting and from the change made in relation to the deletion of the words "long ago".
- Moreover, even if we were to accept the defendant's approach in its summaries, according to which the signature on the delivery protocol (which was drafted by the defendant on her firm's paper, and as the matter also arises from paragraph 5 of Adv. Braunstein's affidavit) should be regarded as some kind of consent by the plaintiff to the delivery itself, I find it difficult to see this as a waiver of the claim of delay in delivery. In this context, I would like (with all due respect) to join Justice Weizmann's interpretation of the parallel proceeding (paragraph 40) to the issue of signing the delivery protocol as follows:
"The defendant's interpretation of the aforementioned clause is inconsistent with the plain meaning of the text. The simple and reasonable interpretation of this section is aimed at preventing claims regarding defects in the received property "subject to what is specified in the delivery protocol and the fulfillment of the contractor's obligations within the inspection and warranty period", since it is unreasonable to say that once the buyer receives the property that was delivered to him late, then he is silenced from arguing against the very delay in delivery that he approves, and in fact he is obligated not to receive the property in order not to disappoint his claims. and thus in effect increase its damage...