According to the plaintiffs' calculation, about ILS 3 million was supposed to be in the said trust, and their place was absent.
- Under the circumstances, most of the group members paid in one installment the component of the consideration, which was intended to secure the purchase of the land on which the project would be built. However, a number of group members have reached individual agreements according to which they will have to complete their share after signing an agreement with the executing contractor or with the lending bank, whichever comes first.
Against this background, and since the payment of the consideration component for the land was not completed in full, the deposit was not deposited. The plaintiffs claim that the letters of undertaking were deceitfully drafted, since it was concealed from the plaintiffs that the deposit would not be deposited in practice, in view of the existence of group members whose undertaking to pay was split. According to them, a "circle of fools" was created that prevented the creation of the said collateral.
- The claim should be rejected.
- As a starting point, it does not appear in the original statement of claim, nor in the amended statement of claim. The argument in this regard, as formulated by the plaintiffs, was that all the members of the class had already paid the land component at the end of 2012, and hence the defendants breached their duty as aforesaid. However, this claim is not true, as the defendants stated in their statement of defense, and the plaintiffs did not file a reply focusing the dispute on its own.
- Still, even on the merits, there was no talk of a "fool's circle" according to which the time will never arise to deposit these funds in a deposit. This is because it was stipulated in the sale agreement of those 17 plaintiffs, for whom the payment was split (in paragraph 4.3 of the sale agreement), that the balance of the consideration would be paid "upon the entry of a lending bank into the project and no later than the date of signing an agreement with an executing contractor for the project".
The plaintiffs claimed that Adv. Nof admitted in his cross-examination that the contractual state of affairs had led to the fact that there would never be a need to deposit the funds in a deposit (in paragraph 354 of their summaries, which refers to testimony6 at p. 773, S. 25-15). However, later in his testimony, immediately afterwards, he explained what was explicitly stated in paragraph 4.3 of the sale agreement (ibid., S. 31 - 774, S. 6), in a manner that enables the creation of the trust on the date set therein.