This conflict is a private case of a state of affairs in which the lawyer finds himself representing two clients with conflicting interests. And different legal systems have dealt with this conflict in different ways. In England and Australia, priority was given to the contractual garb given to the relationship between the parties, and it was held that it was the contract that dictated the scope of the fiduciary duties (Naftali Ben Zion, at pp. 289 ff.). The courts in Canada and the United States took a different approach, where it was held that the contractual garb of the relationship between the parties does not negate the applicability of fiduciary duties (ibid., at p. 301 ff.).
And in our own approach, as can already be seen, "[ ]the Israeli courts have agreed that the duty of trust is not subject to the scope of contractual consent" (ibid., at p. 318).
- This hearing will take its place later on, when we examine the cases in which Ms. Or acted in contravention of the provisions of the contractual framework, in a manner that could have harmed the class members, and the defendants found themselves in the middle.
- The time has come to complete the work, and to examine the arguments of the parties in relation to the stage at which the defendants served as the attorneys for the purchasing group.
Negligence was not established by the fact that the defendants did not take care to legally obligate Group 104 to grant Group 102 building rights on their land
- The plaintiffs are, in fact, raising an alternative argument regarding the connection between the lots. According to them, even if there was no actual undertaking by the defendants that Lot 104 would allow the transfer of rights of one kind or another to Lot 102, they should have ensured that it would be possible to legally oblige Group 104 to grant Group 102 building rights when necessary. This is in view of their duty to protect the interests of the members of the purchasing group and to promote them.
In the amended statement of claim (in paragraph 12.6) it was therefore claimed that the defendants were negligent in not including in the agreements of the group of 104 restrictive mechanisms that would obligate them to one of the plots. Due to this negligence, it was claimed, the defendants allowed Group 104 to sever its cooperation with Group 102, as indeed occurred on the day of the order, when receivership proceedings were opened against Ms. Or's friends.
- This argument is also rejected.
As explained above, the transaction before us bore clear characteristics. She noted that an attempt would be made to unify the fields, but there was no commitment to do so. There was also no obligation to provide the full housing units to the members of the group, and to the extent that the hands of the planning authorities turn out to be clenched, there will be room to make use of the emission mechanism set out in clause 5.8 of the sharing agreement.
- This is a possible business model, which has advantages and disadvantages, and it arose from the basic agreements that the plaintiffs signed. I do not believe that his choice reflects a deviation from proper business models, and in any event, no professional negligence on the part of the defendants who promoted him in practice through the various agreements was not established.
- In addition, in accordance with the business model of the chapter, the interests of the members of Group 102 also took their toll. It was assured, in practice, that a considerable effort would be made to promote the cooperation, not by signing the members of Group 104 to do so, but by virtue of the simple fact that Ms. Or served as the organizer of the two groups, and could throw her weight into the joint promotion of things.
Thus, with respect to Group 104, it reserved veto rights in all matters relating to the conduct of this group. Clause 8.3.2.5 of the Group 104 sharing agreement included the right of veto to the manager on behalf of Ms. Or in matters of the various outline plans. and clause 8.3.3 of the agreement authorized the Director to make decisions regarding the planning on behalf of Group 104. In such a state of affairs, in practice, cooperation between the two lots was ensured in order to raise the possibilities of construction on the site.