In many cases, the actions taken for the purpose of fulfilling the obligation are with the knowledge of the defendant alone, and the plaintiff cannot prove the defendant's omissions, except on the basis of their later results. This is when the gap between the actual result achieved and the expected result indicates a lack of effort. Indeed, evidence regarding the results is not necessarily sufficient evidence. However, in certain circumstances, their evidentiary weight may be great, and at least constitute prima facie evidence that the required effort was not made and to transfer the burden to the defendant to show that he has indeed fulfilled his duty."
It was further determined by the Honorable Justice Sokol, inCivil Case (Hai District) 382-07and Sef Hochman v. Gordi Projects (1995) Ltd. (03.03.2010) (hereinafter: "the Hochman case"), determinations which I find to be adopted in the present case as well:
"When the court examines the conduct of a party that has taken upon itself the obligation to make an effort, it must also examine what the chances of achieving the result would have been had it taken the necessary actions. It is doubtful that even if the caller had taken additional steps, sent letters, submitted requests, appeals, etc., this would not have changed the outcome, this also has implications for the question of whether he deviated from the required level of caution. Thus, in other municipal applications 4075/06 Glickman v. Izbicki [published in Nevo] (given on February 18, 2010), the court ruled that even if a party ceases to obtain approval in its actions, this does not constitute a preclude of the fulfillment of a condition within the meaning of section 28 ofthe Contracts (General Part) Law, 5733-1973, where it was clear that even if he tried, it would not be possible to fulfill the condition. It seems that this is also true in other circumstances in which a party has breached an obligation to make an effort (in this regard, I will note that a party that has taken upon itself to act to fulfill a condition, in fact takes upon itself an obligation to make an effort) (see also Civil Appeal 1363/04 Tze'elim Holdings Ltd. v. Delek - The Israeli Fuel Company Ltd. [published in Nevo] (given on December 11, 2007))."
- From the general to the individual - I am of the opinion that the obligation that the defendant has taken upon herself is an obligation to make an effort. This is supported by the first addendum, in which it was determined that the linkage is contingent on the approval of the municipality and they are, as arising out and supported by the entire sequence of events, which shows that the parties themselves saw the undertaking as an undertaking of effort, the actual performance of which cannot be enforced on the defendant. This begins with the provision of section 8 of the second addendum, which indicates that the failure to fulfill the undertaking will not allow the cancellation of the agreement or a claim for compensation, and the continuation of the second addendum, which was signed after it became clear that the linkage could not be carried out, and therefore, a different course of action was agreed.
To this it should be added that in my view, the defendant met the burden imposed on it in order to show that it was not possible to reach the result of the linkage. This was first of all, when the existence of a preventive policy of the municipality was proven, and accordingly it was not possible (and even today possible) to attach the entire area of the garden to the apartment. In addition, when it was proven that the defendant, on its part, tried to fulfill the undertaking, including submitting an application for a permit that included the linkage, but encountered a wall in the form of the municipality. More than necessary, I am of the opinion that taking into account the policy of the Municipality, as proven and based on the rulings of the Honorable Justice Sokol in the Hochman case, with which I share and their logic - in circumstances in which it is clear that an application for the attachment of the garden would have been rejected by the Municipality, in any case the defendant was not required to present additional evidence that shows that she submitted such plans (and as I have determined, the application for a permit shows support for Rubinstein's testimony that such attempts were made).
- As a summary, I will conclude that the obligation that the defendant took upon herself is an obligation to make an effort and not an obligation to consequent. In addition, it appears that the defendant complied with the obligation that it undertook and therefore did not breach the agreement. This determination is sufficient to lead to the dismissal of the claim against the defendant, since in the absence of a breach there is no entitlement to remedies. This determination is supported by the provisions of the Second Addendum, which explicitly states that non-performance will not allow for the cancellation of the contract or the receipt of compensation. Moreover, the evidence shows that the plaintiff was aware of the uncertainty in the linkage and, moreover, was informed in real time regarding the existence of impediments to the registration of the linkage in her name - she was offered to cancel the first addendum and cancel the entire upgrade to her apartment - but she refused this offer. Therefore, the parties drafted the second addendum to the agreement, which was signed by the other existing apartment owners. This addendum embodies a reflection of the fact that it may not be possible to perform the linkage, as well as an alternative mechanism. This mechanism also provides support for the rejection of the plaintiff's possibility of claiming any remedies against the defendant, since it is a mechanism that cannot be imposed on the defendant, since it involves the obligation of others towards the plaintiff. In light of all this, the law of the plaintiff's claim against the defendant - both in terms of enforcement relief (which, according to my determination, was not possible at the relevant dates of the lawsuit, and as will be detailed below, is not even possible today) and in terms of compensation relief - dismissal.
- In light of my determination and in accordance with it, the defendant's breach of the agreement was not proven, and therefore the plaintiff is not entitled to compensation in any event, I am not required to comply with the parties' arguments with regard to the amount of compensation. At the same time, I will only note that on the face of it, since, in any case, in the framework of the second addition from 2018, the area of the garden was also reduced to 90 square meters. In light of this, there is substance to the defendant's argument that at most the plaintiff is entitled to compensation for the difference between 90 square meters and 77 square meters - i.e., at most compensation for 13 square meters. Moreover, I find it difficult to accept the plaintiff's arguments and accordingly the payment made by her was made for the enlargement of the garden and not for the increase in the area of the apartment. This is first, taking into account my determination and in accordance with it from the outset there was no certainty regarding the attachment of the garden. However, more importantly, the plaintiff agreed that the apartment for consideration to which she was entitled under the TAMA agreement was 97 square meters (see her testimony onpage 40, lines 13-22). There is also no dispute that the area of the garden apartment that the plaintiff received at the end of the day is 130 square meters. In these circumstances, even insofar as I would accept the plaintiff's arguments that she subjectively related to the garden addition as the main addition, from an objective point of view it is not possible to ignore the addition of value to her apartment that stems from the increase in the area of the apartment - an addition whose objective value far exceeds the value of the garden difference that was not attached. As for this, a review of the appraiser's opinion, which was attached by the plaintiff herself, shows that the appraiser on her behalf also derives the value of the garden as an equivalent value to the value of a built square meter, multiplying by a coefficient of 0.25. Kerry, even according to his approach, the value of a square meter in the built-up area is four times the value of each square meter of a garden. In light of this, even if the plaintiff did not attribute importance to the value of the addition of the built-up area, it is clear that this value cannot be ignored - since if she sells her apartment - this value will be reflected in the consideration she receives, and on the face of it, she will be able to purchase another apartment with a garden that is four times the size of the addition of the built-up area (the addition of the built-up area - 33 square meters multiplied by 4 = 132 square meters - an area that is ten times the difference in the area that the plaintiff did not receive - 13 meters).R).
- As stated, the claim against defendant 1 is dismissed. And what will happen to the other defendants? The plaintiff claims that against whom she is entitled to enforcement relief as requested by her. This is because they did not take part in the process and did not participate in it. I do not find this argument of the plaintiff acceptable. This is because I am of the opinion that from the evidence presented in the proceeding, it is clear that the enforcement remedy is not possible in this case. Thus, as appears from a public servant's certificate, there is currently a policy that prohibits attaching the garden to the front of the building. The plaintiff argued throughout her summaries that in the public servant's certificate, Mr. Arad relied only on a policy from 2021 (which was also attached to Rubinstein's affidavit as Appendix 8) and that it is not possible to learn from this policy about the policy that was in place previously. In other words, the plaintiff did not deny the policy from 2021, but claimed that it does not indicate a policy on the dates relevant to the lawsuit - starting in 2013. Taking into account the aforesaid, it is clear from the evidence that there is an up-to-date policy that denies the possibility of attaching the garden to the plaintiff's apartment today. Accordingly, there is no room to grant an enforcement remedy - which has become clear that it cannot be enforced - against the other defendants, even though they did not take part in the proceeding. For the sake of completeness, I will note that in the framework of the second addendum, the owners of the existing apartments (and not all the apartment owners in the building, some of whom also purchased new apartments) agreed to an alternative mechanism that would allow the plaintiff to use the garden. The problem is that in the framework of the claim as well as in its summaries, the plaintiff did not present an alternative mechanism that exists or can be enforced against the other defendants, but that the only remedy to which she petitioned is actual linkage and alternatively compensation (see her summaries at paragraph 79). As detailed the remedy of actual enforcement by way of registration, it cannot be granted to the plaintiff, and as for the other defendants, the plaintiff did not petition for the remedy of any compensation. In light of all this, the law of the claim against the other defendants is also dismissal.
Conclusion;
- In light of all the aforesaid and detailed - the claim is dismissed.
- The plaintiff will bear the expenses of defendant 1 only in the sum of ILS 30, 000, which will be paid within 30 days from today. Since the other defendants did not take part in the proceeding, I did not find it necessary to award costs in their favor.
- The Secretariat will communicate the judgment to the parties.
Given today, August 03, 2026, in the absence of the parties.