Adv. Rosenwasser: But a moment ago you couldn't confirm that if such a situation happened you would pass on the details.
The witness, Mr. Baruch: It doesn't happen.
Adv. Rosenwasser: No, but you can't confirm that the same incident didn't happen,
The witness, Mr. Baruch: I don't want to relate to something that is hypothetical and it doesn't happen...
The Honorable Judge Harnoff: Can my lord agree in principle that this reduces the number of potential buyers?
The witness, Mr. Baruch: No, because it doesn't happen. I'll tell you again, ma'am, really."
The plaintiff's evasive answers are unsatisfactory, and show that a buyer who comes to the plaintiff and is not willing to pay the plaintiff brokerage fees will not cross the threshold and will not reach the defendants in an attempt to promote a transaction. This is in clear contradiction to the defendants' interest.
- In HCA 7706/22 Tzipora Sara Singer Attia v. Eyal Avidan (published [Nevo], March 7, 2023), the court ruled that an attorney's fee agreement, which results in a sharp conflict between the client's legitimate interest and the lawyer's economic interest, is inconsistent with the lawyer's duty of trust to the client and contradicts public policy.
By analogy from the judgment for our case, the provision in the exclusivity agreement as interpreted by the plaintiff, which results in a conflict of interest between the defendants' interest in entering into the best deal, an interest to which the plaintiff is obligated, and the plaintiff's economic interest (to promote a transaction only with a buyer who is willing to enter into a brokerage agreement with him), is inconsistent with the duty of trust that the plaintiff owes to the defendants and contradicts public policy.
- When the defendant understood that there was a concern that the plaintiff was concerned about his own economic interest (to receive brokerage fees from the buyer as well) before he was concerned about the defendants' interest (to enter into the best deal for them), and when he understood that this conduct of the plaintiff might thwart the deal on the agenda, he had the right to conduct the negotiations without involving the plaintiff. This is without derogating from the plaintiff's right to receive a brokerage fee of 2% plus VAT.
The matter came up in a WhatsApp correspondence between the parties dated February 20, 2023, in which the defendant wrote to the plaintiff: