Civil Case (Center) 38712-06-23 Coover Agencies Ltd. v. Pitkit-Printing Factories Ltd. - part 4

Haimi, who had long known the stakeholders in Pitkit, introduced them to Unima and its representatives.

114. The claim that the information regarding the fact that Pitkit was offered for sale was the domain of other parties in the market was not proven. The evidence is that Shahar was unable to name even one person who knew about it (p.  350 of the transcript at paras.  21-25), and claimed that he did not remember where this information reached his ears (p.  351 of the transcript at para.  4).  In any event, it was not claimed, and in any case it has not been proven, that any of the representatives of Unima actually knew that a pitkit was offered for sale, moving on to the presentation of the information by the plaintiff.
115. Therefore, the plaintiff and Katz are the link between Pitkit and Yonima. Without the plaintiff, through Katz and Haimi, the acquaintance between Unima and its representatives and Pitkit and its stakeholders would not have been developed.
116. In addition, the evidence shows that the plaintiff's involvement, through Katz and Haimi, in the Unima-Pitkit transaction was not limited to acquaintance alone. Admittedly, Katz's involvement was limited in comparison to Haimi's, but Haimi acted as a liaison, in cooperation with Katz (see Katz's testimony at p.  205 of the transcript, paras.  21-24, pp.  250, 11, 29 and 251, 8-9; testimony of Matan at p.  102, paras.  8-14).  In addition, an agreement was signed between Haimi and the plaintiff and Katz, in which the division of the brokerage fees to be received in respect of the transaction with Pitkit was determined (Appendix 9 to Katz's affidavit).  Haimi also testified that Katz was in the background (p.  159 of the transcript of s.  23) and that all the conversations and actions he carried out were in consultation and accompaniment of Katz (p.  160 of the transcript s.  18-21).
117. In accordance with section 40 of the Contracts Law, "an obligation may be performed by a person who is not the debtor, unless according to the nature of the obligation, or according to the agreement between the parties, the debtor must fulfill it" In the context of brokerage, it was held that there is no impediment to the broker acting through another means (see Eyal Zamir, The Contracting Contract Law, 5734-1974, Commentary on the Contract Laws, edited by G. Tedeschi (1994), at pp.  225-224; Civil Case in Summary Proceedings (Tel Aviv) 50259-06-11 Cooperative Marketing Ltd.  v.  Omer (Nevo, January 6, 2013)).  The defendants did not dispute this, and did not raise any claim in real time, regarding Haimi's involvement in the transaction, or that the plaintiff was deprived of brokerage fees as a result.
118. Therefore, the fact that Katz did not participate in the meetings, and that his involvement in the transaction was less, does not deprive him of his entitlement to brokerage fees solely because of this.
119. Katz and Haimi's involvement was expressed from the beginning:
120. On December 29, 2021, Matan signed a non-disclosure agreement in connection with Pitkit. Katz transferred the non-disclosure agreement to Firon, who transferred it to Matan (P/81).
121. On December 30, 2021, Katz forwarded to Yonima, through Piron, a great deal of information about Pitkit, which he had received from Pitkit (through Haimi) (P/82). Shachar testified that he received this information from Matan (in a sequence as detailed above) (p.  304, paras.  11-17).

• On January 3, 2022, Piron forwarded Katz an information leaflet regarding Unima and asked Katz to forward it to Pitkit (Court No. 80 and Court No. 151).

1. On January 3, 2022, Shachar received a summons from Haimi for an introductory meeting scheduled for January 4, 2022, in preparation for the purchase of Pitkit. The summons was also addressed to Matan, Danjali, Firon and Katz (p.  304 of the transcript at paras.  18-24).  The meeting did take place and was attended by, among other things, Haimi.
2. The day after the meeting, on January 5, 2022, Piron wrote to Katz that he wanted to coordinate a follow-up meeting in Pitkit, and noted that he preferred to coordinate the meeting through Haimi, noting that Haimi was important to the process (Court 152). On the same day, Matan asked Haimi to forward a detailed request for information to Pitkit, and Haimi did so (Appendices 16 and 17 to Haimi's affidavit).
3. The second meeting took place on January 11, 2022. Haimi also participated in this meeting.

• On January 13, 2022, Haimi met alone with the interested parties in Pitkit, for a meeting that was defined as a meeting for the "preparation of hearts" (Court/86). Prior to the meeting, on January 12, 2022, Unima, through Firon, asked Katz to forward to Pitkit a list of questions that were essential to them in order to formulate a purchase offer, and to schedule a meeting for the purpose of passing and explanations of the financial statements (Appendix 13 to Katz's affidavit, Appendices 20 and 22 to Haimi's affidavit).
• Haimi made comments on the text of the first memorandum of understanding (Appendix 24 to Haimi's affidavit).

1. Even after the signing of the first memorandum of understanding, the plaintiff assisted in the negotiations (through Haimi) on two main points: she proposed to Unima to waive her intention that part of the consideration be conditional, and offered her to purchase only Pitkit and not together with the real estate (see Matan's testimony at p. 80 of the transcript at paras.  4-15 and Appendices 28-30 to Haimi's affidavit).
2. As a result, the second memorandum of understanding was signed on April 11, 2022, in which the plaintiff's proposals were adopted.
3. Piron testified that he was in contact with Katz even after the signing of the second memorandum of understanding, and updated him on the progress of the negotiations, both by WhatsApp correspondence and by telephone (p. 419 of the transcript at paras.  13-20, and presented in court at 156).

• As noted, even when disputes arose between Unima and Pitkit, Unima approached Katz and Haimi in order to help them advance the deal.

120. The picture that emerges from the aforesaid is that the plaintiff fulfilled her role in the brokerage agreement, i.e., created the initial contact between the parties and assisted in the negotiations, which led to the signing of the two memorandums of understanding. Therefore, to the extent that a sale agreement had been signed and consideration had been transferred, the plaintiff would have been entitled to receive brokerage fees from Yonima.  However, as is well known, a sale agreement between Unima and Pitkit was not signed in the end.
121. However, a short time later, a sale deal was concluded between Pitkit and Liberty, with the involvement of Shahar and Piron, who had an interest in Liberty. Below we will examine whether the defendants, or any of them, can be obligated to pay brokerage fees in respect of the Liberty-Pitkit transaction.

The Liberty-Pitkit Deal

122. The case law recognized the entitlement of a realtor to brokerage fees from a third party who made use of the information obtained from the realtor, even if he was not a party to the brokerage agreement, to the extent that the realtor was the effective factor in the transaction with the first buyer with whom a brokerage agreement was concluded (as determined in our case) (Civil Appeal 48942-04-24 Gonen Kestenbaum v. Shai Yaacobi - Real Estate Development and Brokerage Ltd.  (Nevo, February 4, 2025), which was approved by the Supreme Court in the Civil Appeal Authority 42119-02-25 Gonen Kestenbaum v.  Shai Yaacobi - Real Estate Development and Brokerage Ltd.  40 (Nevo, January 21, 2026); Civil Case in Fast Trial (Rishon LeZion) 24560-10-12 Nissan Nizov v.  Sigalit Haddad (Nevo, July 30, 2014)).
123. As I determined above, in our case, a binding brokerage agreement was signed between the plaintiff and Unima, but Pitkit was eventually acquired by Liberty, with which the plaintiff does not have a brokerage agreement. However, the evidence indicates that Liberty and its stakeholders, some of whom were also interested parties in Unima, and were aware of the Unima brokerage agreement, made use of the information received in the framework of the negotiations between Pitkit and Unima, with the mediation and assistance of the plaintiff and/or anyone on its behalf, for the purpose of managing the negotiationsbetween Pitkit and Liberty.  These negotiations eventually led to the signing of the sale agreement.
124. As mentioned, Shahar served as CEO, director and shareholder of 3% in Unima, and is also a 10% shareholder in Liberty and serves as a director and CEO of Liberty. Shahar's partner, Shira Dollar, also owns a 41% stake in Liberty.
125. Firon served as a director and member of Unima's investment committee, and was a 3% shareholder in Unima. There is a dispute between the parties regarding his being a legal advisor to Unima (prima facie, there are indications of this, but since being a shareholder and a director of Unima is sufficient for the purpose of the discussion, I have no need to rule on this).  In addition, Firon was a legal advisor and a shareholder in Liberty at a rate of 3%.
126. The business opportunity to acquire Pitkit, which the plaintiff presented to Unima, fascinated Shahar from the very beginning. In a WhatsApp correspondence dated February 24, 2022, Shachar wrote to Matan regarding the Pitkit deal: "I want this deal with all my time (sic, Y.S.) (to remain between us)" (Court/P/101).  Shahar confirmed in his testimony that it was clear to him from the outset that this was an excellent transaction (p.  303 of the transcript of paras.  14-18) and that he showed interest in the acquisition of Pitkit, through his partner, even at the end of the negotiations between Pitkit and Unima, in light of Unima's financing difficulties (as appears from the minutes of the board meeting of June 19, 2022 - Court 92).
127. Pitkit notified Unima of the cancellation of the second memorandum of understanding on July 10, 2022. Shachar admitted in his interrogation that he and Piron had acted behind the back of Yonima and Matan, and asked Pitkit to refuse Yonima's request for an extension to obtain the funding (see Shahar's testimony at p.  342 of the transcript at paras.  12-16 and pp.  345 at paras.  12-15).  In doing so, they effectively influenced Pitkit's decision-making process to cancel the memorandum of understanding.
128. As early as July 19, 2022, negotiations began between Liberty (under construction) and Pitkit (according to the answers of Shahar, Liberty and the interested parties in Pitkit to the questionnaires - Appendices 72 (section 3.1) and 73 (paragraph 1a.) of the plaintiff's summaries). The Liberty-Pitkit deal was signed on September 23, 2022, about two and a half months after the negotiations between Unima and Pitkit ended.
129. The evidence indicates that Shahar and Piron were deeply involved in the negotiations between Unima and Pitkit, and by virtue of their duties, they were exposed, as part of the due diligence carried out by Shahar personally, with the assistance of Firon, to documents and a great deal of information about Pitkit.
130. Thus, Shachar testified at p. 328 and 329 of the minutes that he was in constant contact with the owner and CFO of Pitkit, from whom he received full cooperation (S.  12 at p.  328), that during the due diligence period he visited Pitkit's offices between one and three times a week (S.  17 at p.  328), that he conducted due diligence as thoroughly as possible (S.  25 at p.  328).  that he had many conversations with the stakeholders in Pitkit (S.  28 at p.  328) and that an excellent personal relationship began to form between him and the employees of Pitkit (S.  1 at p.  329).  He also testified that by virtue of his position, he scanned documents related to Pitkit in order to upload them in the virtual information room (paras.  9-10 at p.  329) and that he and Piron accompanied the due diligence process and were exposed to a large number of documents (p.  330 of the transcript at paras.  13-27).
131. Matan testified that Shahar had a very significant part in the due diligence examination (p. 78 of the transcript at paras.  14-21 and 23-28) and that Firon's part was also significant (p.  79 of the transcript at paras.  10-15).
132. Shira Dollar, the main shareholder in Liberty, admitted in her testimony that she had visited the Pitkit factory while the negotiations with Unima were taking place, in order to examine an investment on its part in the transaction (p. 273 of the transcript at paras.  22-25), and that a meeting was held between her and Bellavis afterwards (p.  274 of the transcript at para.  14).
133. CPA Ofir Alfasi and Alon Rosenzweig (shareholders in Liberty) were intended to serve as officers in Unima (p. 363 of the minutes at paras.  22-29).  Shahar confirmed that CPA Alfasi assisted Unima in negotiations with the banks for the purpose of purchasing Pitkit (p.  364 of the transcript S.  1).
134. Therefore, even before the establishment of Liberty, its stakeholders had a great deal of significant information regarding Pitkit.
135. Admittedly, the defendants claimed that as part of the Pitkit transaction, new negotiations and a new and more thorough due diligence examination were conducted, but no evidence of this was presented. When asked why they did not present evidence of the new and separate negotiations, Shahar replied: "Why do we need a document? We are talking" (p.  354 of the transcript at paras.  11-13).
136. The evidence shows, in fact, that as part of the examination, Liberty, through Shachar and Firon, made use of the products of the due diligence carried out by Unima.  Thus, for example, the wording of the due diligence letter issued to Pitkit by Liberty was very similar to the wording of the letter issued by Unimma.  In addition, Liberty made use of an equipment survey commissioned by Unima (p.  355 of the transcript at paras.  21-29, Court of Appeals 137).
137. In light of the above, the picture that emerges is that the negotiations between Liberty and Pitkit continued from the same place where the negotiations between Unima and Pitkit stopped, led by the same parties - Shahar and Piron.
138. Taking into account the short period of time that elapsed between the date of the conclusion of the negotiations between Unima and Pitkit and the signing of the Liberty-Pitkit deal (about two and a half months), which by all accounts is a very short period of time for a deal of this magnitude, there is no doubt that the deep involvement of Liberty's stakeholders, especially Shahar and Piron, in the negotiations between Pitkit and Unima, helped and led to rapid progress in the negotiations and the formulation of the deal.
139. The Liberty-Pitkit deal is similar to the deal made between Unima and Pitkit. This is the same asset that was purchased - Pitkit shares.  The amount of consideration is the same - ILS 45 million.  Admittedly, in practice, ILS 35 million was paid by Liberty and ILS 10 million was taken from Pitkit's coffers, but this does not change the total amount of consideration paid to the stakeholders in Pitkit.  Moreover, this was planned in the Unima-Pitkit transaction (see Matan's testimony at p.  109, paras.  24-27).  The change in payment terms (spread out for installments versus cash payments) is also not a very substantial change.  In practice, we are talking about "the same lady in a change of mantle".
140. In these circumstances, there is a real difficulty in a situation in which a party connected to the person who entered into a brokerage agreement, and was exposed to the business opportunity in the purchase of the property, and was aware of the brokerage agreement and the amount of brokerage fees included in it, will be exempt from paying the brokerage fees, when he is the one who ultimately purchased the property for himself.
141. Admittedly, in the absence of an agreement between the plaintiff and the defendants, the plaintiff has no contractual cause of action against them, there is room to examine whether there is room to impose liability on the defendants by virtue of general law.

Unjust enrichment

142. Section 1(a) of the Unjust Enrichment Law, 5739-1979 states that:

"A person who has not received an asset, service or other benefit (hereinafter - the winner) that came to him from another person (hereinafter - the creditor), must return to the creditor the winning, and if restitution is impossible or unreasonable, pay him the value thereof."

143. In accordance with the provisions of section 1(a) above, the duty of restitution arises when three elements are met:

The first element: enrichment of the winner (receipt of an asset, service or benefit) - this element is essentially factual and examines whether the defendant has made a profit or has been spared an expense.