Business conduct should be governed by business logic and business logic often dictates the proper interpretation of the formulation of contractual agreements. In doing so, we allow the circumstances and purpose of the contract/document to teach us its correct interpretation, as provided in section 25(a) of the Contracts (MK) Law, 5733-1973 (and see in this regard - Additional Civil Hearing 2045/05 Vegetable Growers' Association-Cooperative Agricultural Association in Tax Appeal v. State of Israel, (2006);Civil Appeal 3894/11 Delek - The Israeli Fuel Company in a Tax Appeal v. Ben Shalom, (2013); Civil Appeal 2232/12 The Latin Patriarchate of Jerusalem v. Farwaj (2014); Civil Appeal 7649/18 Bibi Dirt Roads and Development in Tax Appeal v. Israel Railways in Tax Appeal (2019))."
Later in the judgment in the parallel proceeding, Justice Weizmann refers to the words of the scholar Prof. Eyal Zamir in his book The Sale Law (Apartments) 5733-1973, an interpretation of the Contracts Law (p. 546), according to which only if the delivery protocol contains a clear and unequivocal waiver of his rights in connection with any discrepancy of which the buyer was aware, and only if there is no basis for the argument that the waiver should be revoked because it is a discriminatory condition in a uniform contract, Or due to illegitimate pressure exerted on the buyer, such as the delivery condition of signing the protocol, the waiver will be valid. It is clear that in our case we did not find an unequivocal waiver of the claim of delay in delivery.
- Moreover, as emerged from the photographs taken by Ms. Appel, and in the absence of denial on the part of the defendant, and in view of Mr. Netanel's confession, as detailed above, it was found that the defendant herself used the store until the date of its delivery on August 27, 2019 to the plaintiff. In this regard, I will refer to photographs, which show that the entire store was occupied by construction equipment and other equipment of the defendant or anyone on its behalf. In this context, Ms. Appel is asked in her cross-examination whether she can point to a photograph that belongs to the plaintiff's store seizure (as opposed to the A.F.T. Housing) and she points to the picture in No. 173 (p. 12 of par., para. 9). I will note that according to the plaintiff, no separation of walls was made between the stores until the date close to the delivery itself (see also p. 12, paras. 23-24, and especially from p. 19, paras. 11 to p. 20, para. 3, regarding the lack of a separation wall and the difficulty in identifying the various properties, those of the plaintiff versus those of A.P.T. Housing).
- The plaintiff contacted the defendant on this matter several times in writing, and according to Ms. Appel, also orally, but her request was returned empty-handed. Appel further claims that negotiations with various parties that sought to rent the store failed, due to the fact that the defendant could not indicate the date of delivery of the store (from p. 13, s. 7 to p. 14, s. 2). Thus, Ms. Appel points to the warning letters in which the plaintiff contacted the defendant and Halina about the failure of the rental agreements for the property, given the lack of a date for the evacuation of the store. In response to the defendant's counsel's question, Ms. Appel clarifies that lease agreements were indeed not concluded, but that documents of principle were certainly drafted with various tenants, which failed in the absence of a date for the eviction of the store (p. 21, paras. 2-7). In addition, it was found that the defendant's own counsel admitted in his cross-examination that the store was delivered in August 2019 (p. 14, paras. 15-18).
- In this context, I will refer to the factual determinations of the Honorable Justice Weizmann in his judgment in the parallel proceeding, which are remarkably consistent with the determinations in the proceeding before me (and this, after I warned myself that the determinations in the parallel proceeding are not conclusive). And I will clarify: the transcript that was attached on behalf of the plaintiff deals with both the plaintiff's stores in this case and the stores of A.P.C. In any event, these are the rulings of Justice Weizmann (in paragraph 16, pp. 9-10 of his judgment. The quotes from the transcript are from pp. 143-144 of the plaintiff's affidavits in the case before me):
"First, it was proven that during this period and afterwards, up to the date of the signing of the delivery protocol, the stores were actually used for the defendant's interests and needs, and that the defendant's equipment that was stored in them was evacuated only at the time of signing the delivery protocol (see the photographs Exhibit 5 of the plaintiff's exhibits). It appears from the photographs that this is a large and heavy piece of equipment and that there was an office belonging to the defendant with all of its equipment. This is also consistent with what emerges from the transcript of the recording that was made on the day of the signing of the delivery protocol (August 27, 2019), in which Mr. Netanel instructs his employee to vacate the defendant's office located there (and hence until the day of the signing he was present inside the stores). Similarly, Mrs. Gali Appel, Mr. Appel's daughter, clarifies on the same occasion that upon entering the premises of the stores, she was told to leave the premises by the defendant's employees.