Rubinstein further testified, with regard to the fact that the table of areas indicates that previously, the garden was indeed requested, but since the municipality refused to do so, the matter was amended in the sketch on page 78, lines 33-26:
"The witness, Rubinstein: It appears in the garmushka, according to the table of areas you see that we asked for as big a garden as we could. The goal was to attach to the garden as large as possible, far beyond what was written in the TAMA agreement, a lot. Everything we could attach to the garden we tried to do, and unfortunately because of the municipality's guidelines, it was not possible. And this appears in the table of areas, which again the municipality did indeed amend in the permit application only in the drawings, and it was not amended in the table. It's probably a mistake on the part of the municipality, but what is obligatory is the drawings because that's always looked at and that's what the permit was granted. And there they reduced the garden and unfortunately it was not possible to attach the garden."
And also, on page 85, lines 15-16:
"The witness, Rubinstein: The table of areas in the final permit was a mistake. It shows a grief that was within the process that we submitted, that there was a garden of 128 or 130 meters, "
- As a complement to the sequence of events, I find it necessary to add that, in accordance with Rubinstein's testimony, when the second addendum was made, there was still hope of regulating the issue of attaching the garden - whether by registration or in some other way, but afterwards, the firm position of the municipality was accepted and therefore nothing could be done more. Thus, on page 88, lines 23-33, Rubinstein testified:
"The witness, Rubinstein: At that stage we had some sort of opinion that we could, although it is impossible to attach it in terms of the building permit, we said that we might be able to allow the registration of an easement or any other registration for the use of the garden in favor of Ronda. We went back to the municipality after that, after we submitted the amended permit application, after that addendum to the agreement with the changes in the apartment areas and other updates. And we received an answer from the municipality that it would not be possible, not in such an arrangement, not in another registration, there would be no linkage of the garden. In the end, we also have to register a condominium, the municipality has to sign the drawings. And they made it clear to us that it wouldn't happen at that point, after that, that it happened after the addendum to this agreement was signed, we understood that there was no possibility, no possibility of doing it, no registration, no planning, no proprietary, no garden, and as far as we're concerned, this event is over. We can't do anything beyond that."
- As I noted earlier and noted, the sequence of events first shows support for the defendant's claims that the municipality's policy prevented the attachment of the garden and, moreover, indicates that the defendant made an effort to try to attach the garden. Taking into account my determinations with regard to the sequence of events and the result thereof, I will examine the essence of the undertaking that the defendant undertook in the agreement between the parties and whether the defendant breached this undertaking.
The defendant claimed that the undertaking that she undertook was an undertaking of effort, as opposed to a consequential undertaking - that is, that the defendant undertook to make an effort to attach the garden and did not commit to the result of attaching the garden.