Well attached is a sum of 600,000 ILS, check no...
We advance the aforementioned sum subject to your signature on approval for the construction of the gallery on the mezzanine floor.
We ask that you complete the construction of the stores in accordance with the agreement between us.
And you will also vacate the office on the store floor in order to receive an orderly delivery."
In the margins of this letter appear the defendant's stamp, together with Mr. Netanel's personal signature, as a signature of receipt of the sum.
This letter indicates that according to the plaintiff and A.P.Z. Housing, at the time of writing the aforementioned letter (February 28, 2019), about half a year before the date on which the plaintiff claims that the store was actually vacated (on August 27, 2019), the stores that are the subject of the two proceedings had not yet been evacuated. Mr. Netanel was asked in his cross-examination why there was a demand regarding the evacuation of the stores, when according to him the stores had already been evacuated, and he casually replied that the stores were evacuated at the plaintiff's demand. When Mr. Netanel is confronted with the claim that he should have responded to this letter (which, as noted, his personal signature appears on it as a signature of existence), that the store was delivered, he replies that this is how the system works, and that he did not send any message because of his relationship with Mr. Appel (from p. 108, para. 11 to p. 109, para. 29).
- It should be emphasized that in the absence of a warning letter, it is not possible to recognize the claim of late payment. This is especially true when it appears that this argument was never raised, but only during the course of the legal proceeding, in a manner that indicates a lack of good faith (see also paragraph 44 and paragraph 45 of the judgment in the parallel proceeding). In this context, I will refer to the ruling of Justice Weizmann (at paragraph 45 of the parallel proceeding), who himself quotes the ruling of the Honorable Justice Eyal Baumgart in Other Municipality Applications 25934-11-23 State of Israel v. Schuchtman & Co. Engineering and Development Company in a Tax Appeal (2024), which states in paragraph 43 of its judgment that:
"The application of the rulings regarding transportation services and the Yatach case justifies the application of the principle of the duty of good faith in our case. In other words, a provision should be read into the agreement that in the event of a significant delay in payment, the Respondent, which insists on its contractual right, must accordingly postpone the date of delivery of possession, to warn thereof..."