I will preface by noting that I do not accept the plaintiff's argument, his interpretation of the exclusivity agreement and his claim for an additional 2% of agreed compensation.
- First, the plaintiff's claim that by not referring the buyers to him, the defendants denied him the opportunity to enter into a brokerage agreement with the buyers (which entitles him to the agreed compensation), turned out to be incorrect on the factual level. This was because the plaintiff had an opportunity to contact the buyers and enter into a brokerage agreement with them, and he even approached them, but the buyers were not interested in the plaintiff's services and did not agree to enter into a brokerage agreement with him.
Appendix 8 to the plaintiff's main witness affidavit is a WhatsApp correspondence between the plaintiff and the buyer from February 2023, which indicates that the plaintiff was in contact with the buyer and even suggested that she see the defendants' home. The buyer politely evaded (see also the plaintiff's testimony at p. 22 of the transcript). In other words, it was not the fact that the defendants did not refer the buyers to the plaintiff that prevented him from receiving brokerage fees from the buyers, but rather the fact that the buyers were not interested in entering into a brokerage agreement with the plaintiff that prevented this.
- In any event, in my opinion, the plaintiff's interpretation of the exclusivity agreement, according to which the "referral mechanism" that establishes the possibility of collecting an additional 2% from the buyer, is the core of the exclusivity, is inconsistent with the provisions of the exclusivity agreement itself, is inconsistent with the provisions of the law and the intention of the legislature, constitutes a discriminatory condition in a uniform contract, and even contradicts public policy. I will elaborate.
- The exclusivity agreement signed between the parties defines what exclusivity is the subject of the agreement.
Thus in section 2: