Moreover, the agreement states as follows:
"5.7 Notices under this Agreement shall be made in writing. The addresses of the parties for the purposes of this Agreement are as set forth in the preamble to this Agreement as well as the email addresses of each party, and any change in the address of either party will be effective only if written notice of the change has been sent to the other party. Any notice sent by registered mail as well as by email by another party will be deemed to have been delivered to its certificate at the end of 3 business days from the time of its dispatch, if delivered by hand - at the time of its delivery[Article 5.7 of the Agreement].
In our case, the notice on behalf of the plaintiff regarding the exercise of the option was sent in two different ways - by way of providing an email to the defendant's counsel in the present proceeding, and by way of a WhatsApp message to the defendant dated June 6, 2024 [see Appendices 13-14 to Maor's main witness affidavit]. In other words, the means of delivering notices were not done in accordance with the language of the agreement.
- In general, the interpretation of the terms of an option is done in a strict and precise manner, according to which the binding way to exercise the option is that which is determined in the language of the contract [see: Civil Appeal 346/88 Ze'ev Avivi v. Shlomo Ben Zechariah, 66(4) 684, at para. 7 of the judgment of Justice T. Or (1992)]. The case law also held that "the exercise of an option and its refinement to the level of a contract, which binds both the bidder and the offeror, must be done by strictly fulfilling the terms of the option and the way in which it is exercised..." [Civil Appeal 163/84 State of Israel v. General Hebrew Cooperative Workers' Company in the Land of Israel Ltd., 38(4) 001, at paragraph 7 of the judgment of Justice D. Levin (1984)].
- However, section 39 of the Contracts Law instructs the parties to the contract to act in good faith and in an acceptable way in the existence of an obligation and in the realization of a right that derives from the contract. The parties are obligated to act, in cooperation with the other party, and taking into account its interests, to realize the joint intention of the parties in accordance with the nature of the agreement [Shalev and Mamach, at p. 78; Civil Appeal 5786/15 Azorim Development and Building Investment Company in Tax Appeal v. Baruch Hassan, at paragraph 22 of the judgment of Judge A. Baron (Nevo, September 3, 2017)]. A party to a contract may breach such a duty when it chooses to adhere to the language of the contract where strict adherence is not necessary and may impede its realization [see: Civil Appeal 1966/07 Amalia Ariel v. Egged Members Pensions Fund Ltd., at para. 36 of the judgment of Justice Danziger (Nevo, August 9, 2010)].
- In our case, I am concerned that the conduct of the defendant and his counsel in the present proceeding constitutes a strict adherence to the language of the contract, which contradicts the agreement and its objectives, even in the context of the exercise of the option. Notices were given regarding the exercise of the option to the defendant and his counsel in a timely manner and through the channels that were customary between the parties to the engagement - the attorneys by email and Maor and Gazit by WhatsApp messages [see Appendices 13-14 to Maor's main testimony affidavit, testimony that was not concealed].
Moreover, the evidence shows that the defendant and his counsel referred to such messages, or responded in a manner that indicates that they were aware of the plaintiff's desire to exercise the option: the defendant sent a message on WhatsApp to Maor about 7 minutes after a notice was sent to him regarding the exercise of the option, and the defendant's counsel spoke with the plaintiff's counsel about how to exercise the option [see Appendices 14-15 to Maor's main witness affidavit]. Counsel for the defendant stated that it "does not constitute an address for the delivery of notices and/or documents for Mr. Gazit" for the purposes of the agreement [Appendix 15, at p. 126]. After the plaintiff's counsel replied that "your answer is nothing but cleverness" [ibid., at p. 125], the defendant's counsel noted as follows: