"The Honorable Judge Bibi: No. And today when you read it, do you know why it says an apartment and not a garden?
The witness, Ms. Golden: No."
In these circumstances, I first determine that the word "the apartment" in section 8 should indeed be replaced by the word "the garden" - this is because the registration "the apartment" originates from a clerical error.
Taking into account my determination and accordingly the provision of section 8 applies in the event that the addition of the garden is not approved, this section also indicates the uncertainty with regard to the attachment of the garden to the plaintiff's apartment. This is because, in accordance with the provisions of this section, failure to obtain the necessary approvals for the purpose of enlarging the garden - i.e., if the condition is not fulfilled - will not constitute grounds for cancelling the agreement or receiving any discount or compensation. This determination indicates reinforcement of uncertainty, since the significance deriving from it is that in practice, even if the condition is not met, the agreement will remain in force and the plaintiff will not be entitled to remedies deriving as a rule from its breach, i.e., it will not be regarded as a breach of the agreement. I am of the opinion that such a determination is inconsistent with a claim regarding a clear and absolute undertaking, since it is inconceivable that the non-fulfillment of such an undertaking would not be considered a breach, which entitles the least to compensation or restitution.
In a parenthetical article, I find that already at this stage we should relate to the plaintiff's argument and accordingly, it is necessary to conclude that there is a negative evidentiary presumption against the defendant's version with regard to the signing of the first addendum, from the omission of the testimony of Sagi Klein, who there is no dispute that he was the one who conducted the negotiations with the plaintiff prior to the signing of the addendum and that he was the one against whom the plaintiff claimed that she had signed the addendum. I do not find this argument of the plaintiff to be accepted for a number of reasons. First, taking into account that the existence of such a presumption is contingent on the defendant being able to bring the same witness who was claimed to have had room to testify. In the present case, Rubinstein testified on behalf of the defendant that this was an employee with whom the employment relationship ended in harsh tones, which even amounted to legal proceedings (see his testimony on page 66, lines 1-3). To this it should be added that in any event, the interpretation of this addition arises from the text and is supported by the plaintiff's testimony as detailed. And finally, as will be detailed below, in any event, after the signing of this addendum from 2013, contacts took place between the defendant through Rubinstein and the plaintiff in 2018, which led to the signing of the second addendum to the TAMA agreement - an addendum to which there is no dispute that the plaintiff agreed to and in light of this - is in any case the last and relevant engagement for our matter. Rubinstein testified about these contacts from his personal knowledge (see his testimony on page 70, lines 33-34, in which he emphasized that he was personally involved in the meeting with the plaintiff from 2018 and in the entire licensing and planning process with the municipality). Accordingly, although the signing of the first addendum to the NOP agreement constitutes a relevant background, and as a link in the sequence of events, I do not believe from the outset that it has a significant weight that affects the outcome and decision of the proceeding. I do not find it appropriate to attribute importance or weight to the defendant's omission in Mr. Sagi's testimony with regard to the signing of this addendum.
- After the signing of the first addendum, on April 5, 2014, the decision of the local committee regarding the permit application was made, the meaning deriving from it, as it emerges from the testimony of Mr. Arad, I have already referred to above. In addition, as detailed above from Mr. Arad's testimony from 2016, instructions were applied to prevent the front garden from attaching to the apartment. This testimony, as to the date on which the guidelines were applied, constitutes a relevant background that chronologically supports the defendant's claim that in 2013, there was still doubt as to the prohibitions and there was no certainty as to them, but during the period the understanding was formed that there would be difficulty in attaching a garden area of 128 square meters to the plaintiff's apartment - first in light of the decision in the permit application and later, in light of the publication of the guidelines in 2016. This chronology is consistent with Rubinstein's testimony on page 71, lines 13-23 as follows:
"In the world of urban renewal, certainly in those years, things were built on the fly, and we received instructions from the municipality that were later formulated into policy. Even when we submitted the permit application, even then an instruction was given from the municipality not to attach gardens to the streets. And these are instructions that were given by the municipality as part of a process of submitting a permit application and dialogue with the relevant referees and everything that happened, and instructions were given not to attach it. At the same time, we hoped that the delusional directive, which at the time we thought was illegal because it was the property of the building and it could have been attached, so we continued and moved forward with the process and hoped that things would change as we moved. But they haven't changed, and they've even become more organized by the municipality by means of policy documents and repeated directives that won't be fair to the front."
- After and in light of these developments - there is no dispute that Rubinstein on behalf of the defendant and the plaintiff - met in January 2018. The existence of a meeting between Rubinstein and the prosecutor in January 2018 is not in dispute and is supported by testimonies and evidence. The only dispute is whether the meeting took place on January 17, 2018, and was followed by a personal meeting, followed by a meeting the next day with all the apartment owners - as claimed by the defendant. Or perhaps there was only a meeting with the plaintiff at the time of the meeting with all the apartment owners - as appears from the plaintiff's testimony in her cross-examination. In this dispute as well, I find it necessary to adopt the defendant's version. This is primarily because, although the plaintiff admitted to having a meeting with Rubinstein (even if one that took place in the presence of all the apartment owners), she did not find any mention of her existence in the affidavit. The plaintiff was confronted with this omission and testified on page 47:
"There was a meeting with all the tenants, it was explained to me that the garden might be, I don't know what it is called legally, owned by the municipality, but it will be attached to me and all the neighbors have signed it."