According to the defendants, the plaintiff is also not entitled to brokerage fees in respect of the second sale agreement, since this claim is not part of the front of the dispute. According to them, the statement of claim does not relate to the second agreement, since the claim was filed even before it was signed. The plaintiff did not seek to amend the statement of claim, and even in the summaries he did not claim entitlement to brokerage fees by virtue of the second agreement.
In addition, it was agreed between the parties as part of the amendment to the exclusivity agreement that the plaintiff would be entitled to brokerage fees only in the event that the house was sold for an amount of more than ILS 11 million. Since the consideration in the second sale agreement is less than this amount, the plaintiff is not entitled to brokerage fees in any case.
In any event, at the time the second sale agreement was signed, the exclusivity agreement was not valid, and the plaintiff was not the effective party to the transaction.
According to the defendants, the plaintiff is not entitled to the agreed compensation of 2% plus a tax appeal for the brokerage fees that the plaintiff expected to receive from the buyers. According to them, the exclusivity means that if a transaction is executed within the exclusivity period, they will be obligated to pay the plaintiff a brokerage fee of 2% plus VAT. However, they did not undertake that the plaintiff would receive, if it was executed, a sum of 4% plus a tax appeal - 2% of them and 2% of the buyers.
The defendants further argue that the agreed compensation clause is a discriminatory clause in a uniform contract, and that there is room to reduce it in accordance with section 15(a) of the Contracts Law (Remedies for Breach of Contract, 5731-1970).
In conclusion, the buyers claim that they did not damage the plaintiff's good name and reputation, and that in any case these were not proven.
Discussion and Decision
The Plaintiff's Entitlement to Brokerage Fees in Respect of the Conditional Sale Agreement
- In the amended exclusivity agreement signed on February 14, 2023, the parties added in handwriting a condition according to which the defendant's undertaking to pay brokerage fees is "provided that at least ILS 2 million was given from the buyer to the seller" (section 3).
By virtue of the conditional sale agreement, the buyers paid the sellers (the defendants) only ILS 1,500,000 at the time of signing the agreement .