Therefore, insofar as a binding sale agreement had been entered into within the exclusivity period, the plaintiff would have been entitled to brokerage fees in respect of it. However, as discussed above, the conditional sale agreement, which was signed within the exclusivity period (on April 2, 2023), is not a "binding agreement" that entitles the plaintiff to brokerage fees. The second sale agreement was signed after the expiry of the exclusivity period (on February 15, 2024) and therefore, on the face of it, in order for the plaintiff to be entitled to brokerage fees in respect of the transaction, he must prove that he was the effective factor in the engagement between the parties.
- In fact, there is no dispute between the parties that the relationship between the defendants and the buyers (both prior to the signing of the conditional sale agreement and prior to the signing of the second sale agreement) was created through the buyer's direct contact with the defendant. However, I am of the opinion that in the circumstances of the case, the combination of the exclusivity agreement, the conditional sale agreement and the second sale agreement leads to the conclusion that the plaintiff is entitled to brokerage fees. In CA 4036/16 Barel Properties Group v. Ofir Binyamin, at p. 17 (published [Nevo], July 20, 2016), the judge (as he was then called) coined the term "magnetic field of exclusivity" as follows:
"I will add that the 'magnetic field' of that presumption can and will have an effect even after the period of exclusivity. This is where it appears that the principal acted in order to evade the payment of the brokerage fees by way of postponement of an engagement made during the exclusivity period to the date after the end of the exclusivity period."
In our case, the date on which the second sale agreement was signed is not the result of an attempt to evade the payment of brokerage fees and to "exit" the exclusivity period. However, in the circumstances of the case, when a conditional sale agreement was signed within the exclusivity period (which, had it been executed, would have entitled the plaintiff to brokerage fees by virtue of the exclusivity agreement), and when the second sale agreement was signed with those buyers and as a direct continuation of the engagement that had already been created between the parties in the conditional sale agreement, I am of the opinion that the "magnetic field" of exclusivity also affects the second sale agreement, in such a way that the plaintiff can be seen as an effective factor in entering into the second sale agreement. and which obligates the defendants to pay brokerage fees for it.