This means that the plaintiff did not receive possession of the property before receiving Form 4, in October 2018.
Now, Mr. Netanel himself claims that the defendant and he himself delivered the property long before receiving Form 4 (see, for example: p. 13, paras. 3, paras. 6-8, and also at p. 15, paras. 19 and 21). According to Mr. Netanel, Mr. Appel was a partner in the entire proceeding (i.e., a partner in the planning), and therefore he received the store on behalf of the plaintiff, prior to receiving Form 4 (see, for example: at p. 14). The problem is that Mr. Netanel is unable to point to a single document that verifies his words, especially when the words contradict the evidence of the plaintiff's witnesses.
- Netanel attached to his affidavit the delivery protocol of the store in question (Appendix 13 to Mr. Netanel's affidavit, a more readable copy of which was attached as Appendix C to the affidavit of Mr. Steindem on behalf of the plaintiff) in order to prove that in this protocol the words "long ago" were added by consent, in a manner that attests to the parties' agreement that the store was delivered prior to the date of delivery and the meeting of August 27, 2019. The problem is that Mr. Netanel is not aware that in the delivery protocol that was attached by him, the words "long ago" were deleted and the date of delivery was written, i.e., August 27, 2019. Mr. Netanel is not educated to deal with this erasure and it seems that he was not even aware of it (p. 12, paras. 25-35).
- Netanel was asked regarding the evacuation of the store, which was used by the defendant for storage purposes, and he admits (implicitly) that the store was indeed not removed of the defendant's belongings by the date of delivery on August 27, 2019. However, he claims that he did not need any official approval from the plaintiff, in circumstances in which Mr. Appel was aware of this conduct and did not comment on anything (p. 16, paras. 1-26). When Mr. Netanel was asked about the dates of the plaintiff's requests to the defendant in relation to the evacuation of the store, he claims that he does not remember the dates (p. 17, paras. 1-15).
- Netanel also finds it difficult to deal with the claims regarding the lack of timely execution of the separation wall between the stores (the store in question and the two stores of Dior A.P.Z.), in accordance with the agreement and the sketch (the sketch appears both in Appendix A to the Steindem affidavit, and in Appendix B, pp. 41-43 to the affidavit). Mr. Netanel's explanatory notes appear from p. 17, s. 16 to p. 20, s. 14). The sketch in Appendix B is attached to Kaman for convenience, and it can be seen as the separation wall between the store in question, marked with the letter A with the defendant's stamp next to it (which, as stated above, was initially the owner of the property, in accordance with the sharing agreement, and was sold by the defendant to the plaintiff) and the stores of Dior A.P.Z. below it:
In this context, I will refer to the provisions of clause 4.1 and clause 5.1 of the agreement regarding the construction of the store, in accordance with the specifications, and its delivery when it is completed at the level of the envelope.