"I have no intention of arguing with you. The notice sent is not part of the dispute being discussed in court in your client's claim for removal of discrimination (denied). My answer remains the same" [ibid., at p. 125].
Although no explanation was given as to why Maor did not act to correct the "defect" in the production of his notice, the defendant's attempt to avoid exercising the option due to strict adherence to the language of the agreement is contrary to the purpose of the clause - to allow the plaintiff a "way out" at the end of the vesting period. The insistence of Gazit and his counsel on not receiving the notice of realization that is not in accordance with the language of the agreement is difficult, to say the least, while he himself uses WhatsApp conversations in order to implement the provisions of the agreement and deliver messages [see the parties' correspondence of July 28-29, 2021, regarding the defendant's request to bear the financing of legal expenses under the agreement]. In fact, a procedure has been perfected, by way of conduct, of an exchange of messages that is not in accordance with the manner set out in the agreement, and this can be seen as an implicit agreement to implement its provisions in this way. As a result, it is difficult to adhere to the language of the agreement and determine that the plaintiff's ability to exercise the option clause has expired.
- As to the defendant's claim regarding the loss of the option right due to the plaintiff's breach of the agreement: the defendant did not state a well-founded legal argument that the plaintiff does not have an option right or that releases him from his obligations when exercising the option . It is not clear why there is a connection between the plaintiff's "cooperation" with the controlling shareholders of defendant 2, and the financing of the company's expenses, and the exercise of the option clause. The defendant did not prove, even in a basic way, why it was possible to avoid exercising the option, and his arguments were not supported either by the facts or by the legal basis. The defendant did not raise a claim regarding fundamental breaches of the agreement, the existence of interrelated obligations or any relevant law in this regard. Even if there is a concern that Maor acted in bad faith when he joined forces with the controlling shareholders of defendant 2, even if only for the purpose of attempting to sell his share , the defendant did not establish at all the grounds for which he is entitled to refuse to exercise the option because of this. On the contrary, the logic of the matter can lead to the thought that it is precisely the demand for the exercise of the option on his part that will lead to the blocking of Maor's way from continuing to act as the defendant claims, against the company and against the appeal it filed.
- The defendant's arguments, which were made without foundation, are not without material difficulties if we call into their content what is not in them. As a rule, it is common to distinguish between independent charges, conditional charges, and interlocking or parallel charges [see: Gabriela Shalev and Effi Zemach Contract Law 575-76 (Fourth Edition, 2019) (hereinafter: "Shalev and Plant")]. Failure to perform a contractual obligation may result in various legal consequences in accordance with such classification - this is in accordance with the provisions set out in section 43 of the Contracts Law.
- The question of the classification of a particular contractual obligation is an interpretive question, which requires a decision according to the usual rules of interpretation and which focuses first and foremost on the language of the contract [see: Civil Appeal 8316/21 Edeltech Holdings (2006) in Tax Appeal v. Amos Luzon Development and Energy Group Ltd., at paragraph 27 of the judgment of Justice G. Kanfi-Steinitz (Nevo, August 14, 2024) (hereinafter: "the Luzon case")]. Moreover, caution must be exercised with regard to the interpretation of a contractual obligation as conditional or combined when the language of the contract does not support this interpretation [see: ibid.; Civil Appeal 1258/14 Magen International Entrepreneurship and Investments in Tax Appeal v. Municipality of Ramat Gan, at paragraph 3 of the judgment of Judge E. Hayut (Nevo, September 3, 2015)]. Insofar as a party wishes to condition a certain obligation as aforesaid, it must do so explicitly and make it clear that this is their intention [see: ibid.; Civil Appeal 765/82 Moshe Alter v. Yehezkel Elani, 38(2) 701, at para. 9 of the judgment of President M. Shamgar (1984)]. Alongside the interpretation of the language of the contract, there is room to examine the circumstances of the matter, the commercial practices and the purpose of the contract in question [Shalev and Tzemach, at p. 579].
- The principle of good faith in contract law governs and influences the classification of contractual obligations. In certain situations, the court recognized that the principle of good faith can turn an independent obligation into an interlocking obligation, which sometimes allows the debtor to suspend the fulfillment of his obligation until the creditor shows a willingness to fulfill the counter-obligation [Shalev and Tzemach, at p. 580; Civil Appeal 701/79 Edna Shochat (Nissim) v. Yoel Lubyanker, 36(2) 113, at para. 78 of the judgment of Justice M. Ben-Porat (1981)]. In other words, a party who acted in bad faith in fulfilling the obligation can influence the nature of the obligation and its consequences.
- In our case, the indications indicate that the option clause is an independent obligation, which must be fulfilled regardless of the existence or non-existence of obligations by the other party.
The language of the clause in particular, and the language of the agreement in general, does not attest to the intention of the parties to condition the exercise of the option clause on the plaintiff's obligations to the defendant. There is no requirement in the language of the contract that the plaintiff is required to fulfill its obligations before exercising the option, to the extent that there are any, and if there exists, the defendant does not refer to her. Alongside the aforesaid, the defendant did not bring any evidence in order to convince the court that these are intertwined obligations that must be fulfilled simultaneously.