All of the above actions are actions that the defendant should have performed as a condition for receiving the building permit, and he should have informed the purchasers that he had not fulfilled this obligation. Moreover, had it not been for the agreement with the Ministry of the Environment that the implementation of the survey would be postponed, the agreement would not have been perfected at all on the date set at that time, since in any case the Kfar Saba Local Planning and Building Committee would not have approved the issuance of the building permit until the Ministry of the Environment receives its opinion.
As for the defendant's claim that the Kfar Saba Municipality renewed the permit, and this shows that the existence of the pollution does not prevent the receipt of the permit, and thus the defendant would have completed the survey, the building permit was renewed on November 25, 2019, after the Ministry of Environmental Protection's requirements were completed, so the fact that the permit was renewed at this time does not indicate that the permit was granted in any case.
- The defendant adds that the duty of disclosure applies only to material and essential details whose knowledge is likely to have a real impact on the contractor's decision to enter into the agreement and determine its terms, and that the completion of the land survey and the receipt of the opinion of the Ministry of Environmental Protection are not within the scope of the aforesaid. According to him, the information does not relate to the purpose of the engagement and is one of many actions that the purchasers should have performed.
As stated, all the actions carried out by the Green Wave Company and reviewed above are actions that the defendant was responsible for performing. As for the vitality of the information - it is clear that this is a material detail, since as mentioned, it was not possible to start the construction activities until the Ministry of Environmental Protection had completed the requirements. This information meets the purpose of the engagement between the parties, the requirements set out in the approval in principle are a condition for receiving a building permit, and therefore a suspension condition was stipulated in the agreement that if the building permit is not granted on the set date, the agreement will not be perfected.
- The defendant claims that the purchasers are real estate companies with expertise in the field of construction in general and in the field of construction and operation of gas stations in particular, and that they were able to obtain all the information about the land survey in a simple operation on the website of the engineering department of the Kfar Saba Municipality, where they found in retrospect and after the filing of the claim Mr. Oren Tavor's letter dated April 27, 2015. The defendant emphasizes that this is not an inexperienced purchaser, but rather a proficient and experienced purchaser, and therefore he is subject to a "reduced duty of disclosure" (paragraph 55 of the summaries). He also claimed that Idan wanted to involve the purchasers in the procedures for obtaining the permit, but they were not interested in the details of the procedure. In this regard, he refers to the testimony of Itzik Kalfon on behalf of plaintiff 1 (hereinafter: Kalfon), according to which the rights purchased are a "finished product" - a permit for a gas station and an office building (p. 38 and p. 61 in the minutes of July 1, 2024).
I reject these arguments; the defendant took upon himself to carry out all the conditions set out in the approval in principle, including conducting a land survey and completing the opinion of the Ministry of Environmental Protection. The summary according to which the execution of this condition was postponed is information that he knew that he was the creator of and that he should have disclosed to the purchasers on his own initiative. He cannot rely on the professional experience of the purchasers in order to deprive him of this obligation. The buyers' position does not indicate a lack of interest in the process, but rather their clear point of view regarding the division of risks - they wanted to enter into a transaction in which all the conditions of the approval in principle were fulfilled, knowing that all the actions required after receiving the building permit were their responsibility. They did not agree to take on the actions that were required until the stage of obtaining the permit. For this reason, they also set a suspension condition for the agreement to enter into force - the completion of the conditions of the approval in principle and the receipt of the building permit by an agreed date.
- Idan testified that on the date of completion of the transaction and payment of the full consideration (April 2017), he gave the plaintiffs all the documents, including the historical land survey conducted by ESD in 2015. The defendant claims that this testimony indicates that the plaintiffs knew at the latest at that time of the need to complete a land survey.
Even if this claim, which the plaintiffs deny, is true, I do not believe that it assists the defendant. The plaintiffs are not supposed to search for material information that can be extracted from a "white bag containing many documents" that was given to them on the date of completion of the transaction (Idan's testimony - p. 135 of the minutes of the hearing of November 18, 2024). They were entitled to rely on the building permit that was presented to them, which means that all the conditions set out in the approval in principle have been completed. The defendant's duty was to actively disclose to them that one of the requirements set out in the approval in principle had not been completed and that its implementation had been postponed to another date.
- I did not find any substance in the defendant's claim in his summaries that the land was sold to the purchasers of AS IS", when he does not know whether there is contamination in the land or not, and therefore the provision of section 16 of the Sale Law does not apply. The land was sold in light of the defendant's undertaking to fulfill all the conditions of the approval in principle, and the defendant should have disclosed to the purchasers that he had postponed the implementation of the conditions related to the land survey and the receipt of the opinion of the Regional Environmental Protection Unit to another date.
- The defendant's last argument in this matter is that the plaintiffs did not contact him at all on the allegation of misleading or non-disclosure of facts in real time, but did so for the first time only in April 2020, after the sale of the land to Sadash. According to him, it is clear that if the plaintiffs believed that he had concealed information from them, they would have contacted him and demanded the cancellation of the agreement. He adds that the plaintiffs did not want to cancel the agreement at all in light of their intention to sell the land, and this shows that if they had known that the survey of the land had not been completed, it would not have mattered from their decision to enter into the agreement.
I also found this argument to be rejected; in accordance with the terms of section 16 of the Sale Law, it is sufficient for the buyer to notify the seller of the non-conformity. He is not obligated to choose and decide at this stage what is the remedy for the breach of the agreement. The notice is intended to make it clear to the seller "that the buyer is interested in relying on the defect and demanding the remedies to which he is entitled" (Eyal Zamir, The Sale Law, 5728-1968 339 (1987), in the framework: Interpretation of the Laws of Contracts (edited by G. Tedeschi)).