"If there is a disruption in construction or a delay in the completion or delivery of the sale, as a result of factors that are not dependent on the seller or over which the seller has no control, including and without prejudice to the generality of the aforesaid, a general shortage of building materials, a general shortage of manpower, war or quasi-belligerent operations, hostilities, the recruitment of workers on a considerable scale... or any other entity that is not under the control of the Company...., will postpone the delivery date to a period equal to all the periods in which such delaying factors prevailed, plus 30 days for the organization... Postponement of the Delivery Date in accordance with the provisions of this Section... You will not entitle the buyer to any compensation of any kind from the seller or any other right against it."
It should be said at this time that the defendant relies on these two clauses, to justify the delay in delivery, and in any case to deny the plaintiff's right to compensation, in accordance with the provisions of the agreement (see paragraphs 13-15 of Mr. Netanel's affidavit).
- Later in the Agreement, it refers to the methods of delivery and the delivery protocol, as detailed in clause 5.8 of the Agreement:
"Receipt of possession of the sale by the buyer shall constitute evidence that the sale has been delivered to the buyer in full compliance with the provisions of this contract and to his absolute satisfaction, and that the buyer has no and will not have any claims with respect to the sale and this contract, subject to the details of the entire delivery and the fulfillment of the seller's obligations in clauses 5 and 10 below."
- As stated above, according to the plaintiff (see paragraph 10 of the affidavits of Ms. Appel and Mr. Steindem), the store was delivered only on August 27, 2019, i.e., almost 3 years late compared to the date stated in the agreement, plus the grease. On the same day, Mr. Steindem signed a delivery protocol, which I will address later.
- Clause 16.3 of the agreement states that:
"The performance of the company's obligations under the contract is conditional on the buyer first fulfilling his obligations under the contract, in full and on time."
- In clause 1 of the Appendix to the Payments and Dates (which was attached as an appendix to the agreement and appears in Appendix A to the Steindem affidavit) it was determined that the property would be delivered after 12 months from the date of signing the agreement:
"The sale shall be delivered to the possession of the buyer no later than 12 months from the date of signing the contract, after payment of the full consideration and the fulfillment of all of the buyer's obligations under the contract, and subject to a justified postponement as stipulated in the contract.".
- It was also determined in the Payments Appendix that a delay in the plaintiff's (the buyer's) compliance with the payments will obligate it with linkage and interest differentials. According to the defendant, the plaintiff did not meet the deadlines specified in the agreement and had to bear linkage and interest differences. Given the aforesaid, according to the defendant, it was not obligated to meet the agreed delivery date. On the other hand, the plaintiff claims that the defendant did not warn her about this issue, and in particular did not notify her in advance of the date of delivery of the store, and in any event, in accordance with the case law, there is no connection to the failure to comply with the exact payment instructions regarding the issue of the date of delivery. I will address the arguments of the parties later in my journey.
- I will also refer to clause 2.24 of the Payments and Deadlines Appendix, which states that:
"The balance of the consideration in the sum of ILS 713,184 ... will be paid to the Company within 7 (seven) days prior to the date of receipt of possession."