Civil Case (Jerusalem) 50032-12-23 Hussein Abd al-Qader v. Nasser Garala - part 3

After hearing the arguments of the parties, examining their evidence, witnesses and affidavits, I found that the lawsuit should be accepted.

24. 00First of all, it should be clarified that the agreement that the plaintiffs seek to enforce did not receive the force of a judgment or decision. This is a settlement agreement that was recorded in the minutes, but the court did not give it the force of a judgment and it remains a contractual agreement between the parties. The rules of interpretation and enforcement that apply to it are those set forth in the Contracts Law.

0Interpretation of the Six Month Period and Employment Time Limit

25. According to the defendant, in lines 22-23 of the agreements in the previous proceeding (transcript of March 12, 2023, p. 45), a strict period of six months was set for the production of the documents, when it was determined that "the failure to produce the documents is not a breach but rather the failure to implement the agreement". The plaintiffs, on the other hand, claim that the time limit is intended to serve as a timetable for the execution imposed on the defendant, and that their right to purchase the land remains in place even after the period has passed.
26. The plaintiffs further claimed that with regard to the disputed trial, "the failure to produce the documents is not a breach but rather the failure to implement the agreement", that it was introduced at the last minute by the defendant's counsel under the pressure of the hearing. According to them, the significance of this determination is that in the absence of documents they will not be able to sue for compensation for the breach of the agreement, but their right to purchase the land according to the appraiser's assessment remains intact. The plaintiffs reject the argument that this is a time-limited agreement that expired after six months, and that this period was intended to determine the date for the production of the documents by the defendant alone.
27. This interpretive dispute between the parties, about which much has been written, is resolved in light of the conduct of the parties themselves in real time. I will explain -
28. There is no dispute between the parties that the defendant began to act in accordance with the provisions of the agreement – he applied for the appointment of an appraiser, corresponded with the appraiser and even sent documents to the appraiser. The defendant did all this as early as June 2023 (see Appendix 4 to the statement of defense). In this appendix, which is a letter dated June 15, 2023, the appraiser clarifies that he has received documents from the defendant and asks to know "whether counsel for the parties wishes to transfer to me any additional documents relating to the real estate. " Counsel for the defendant responded to this letter on June 19, 2023 (Appendix 5 to the statement of defense) and claimed that "on the part of Mr. Nasser (i.e., the defendant – A.B.) it seems to me on the face of him that all the documents were transferred to you."
29. If so, the defendant admits that he transferred all the documents that he believed should be transferred to the appraiser. The defendant, as far as he was concerned, sought to fulfill the agreement and acted to transfer the documents in his possession. Indeed, the agreement dealt with documents of rights, but the defendant, in his act of appointing the appraiser and transferring documents to the appraiser, expressed his position that he wished to exercise the agreement and sell his rights, even if he did not have additional documents. Had the defendant indeed believed that he had an option whereby he was not obligated at all to transfer documents to the appraiser and thus to allow the agreement to expire, he would not have acted in the manner in which he acted to appoint the appraiser and transfer documents to the appraiser.
30. These words are consistent with the defendant's statement of defense. Thus, in paragraph 26 of the statement of defense, the defendant wrote: "... Our eyes see that at the same time the defendant did everything in his power to realize the agreements, acted and found two appraisers, and at the same time acted to produce the documents regarding his rights to the divisions, the plaintiffs, for their part, showed disregard for the parties' agreements, and did not cooperate in the matter of the appraisal process, a condition without which the said agreements could not have been realized" (emphasis added). Later in paragraph 28 of the statement of defense: "The defendant relied in good faith on the abandonment of the matter and the lack of response on the part of the plaintiffs. ".
31. Thus, as far as the defendant is concerned, he acted in accordance with the provisions of the agreement, did everything in his power to bring documents of rights, transferred the documents in his possession, while the plaintiffs were the ones who torpedoed the sale by not cooperating with the appraiser.
32. In this state of affairs, as stated, when the defendant admits that he acted to realize the agreement, to transfer the documents to the appraiser, the conclusion of the trial, according to which the failure to produce the documents is not a breach but rather a non-realization, is no longer relevant. The conclusion of the trial is intended to clarify that if the defendant does not succeed in providing rights registration documents in practice, after he has done everything in his power, this will not be considered a breach of the agreement as far as he is concerned.
33. When the defendant realized that there was a problem with his arguments that were inconsistent with the purpose of the agreement and with the law, according to which he must "do everything necessary to produce documents", during the course of the proceeding, he sought to change his arguments, and in his affidavit he claimed that "I did not produce any document that contains signs of belonging to the property" (paragraph 10 of the affidavit). The defendant changed his premise and argument according to which he transferred all the documents in his possession and sought to implement the agreement even in the absence of title documents, moved on to a new argument, which contradicts the argument in the statement of defense. The defendant now claims that since he did not transfer the documents of rights within 6 months, the agreement expired and this should not be regarded as a breach but rather a non-realization of the agreement (see also paragraph 13 of the affidavit).
34. It is not possible to change the façade during the conduct of the proceeding. Beyond the fact that this is a prohibited change of façade, this argument is also lacking in bad faith on the part of the defendant, since the defendant acted to implement the agreement by appointing an appraiser, forwarding documents to the appraiser and even requesting that the appraiser be paid fees (Appendix 5 to the statement of defense). Had the defendant indeed believed that he had an option not to sell and was entitled to wait 6 months until the expiration of the agreement, he would not have acted in this way and would not have sought to pay the appraiser his fees. The defendant's conduct in real time contradicts his testimony in the proceeding, according to which he did not ask to sell the land and did not transfer documents of rights to the appraiser. The defendant transferred what he had in his possession at the time, when it became clear that the defendant, in real time, also acted to obtain additional documents that even reached him.
35. During the defendant's testimony, it emerged that he had acted to issue the document of rights, which is the will of his father and uncle, which was approved by an Israeli court. In the previous proceeding, the defendant presented his father's inheritance order from the Jordanian Sharia Court. In his interrogation in this proceeding, the defendant confirmed the fact that he inherited 14/24 of his father's estate, while his father had 2/12 of his mother and sister's estate, and another 2/22 of this estate (p. 23, lines 1-14). The defendant further testified that he understood from the Honorable Judge Banki that in the absence of an inheritance order he would not be able to prove his ownership, since an inheritance order from a Jordanian Sharia court was not enough, and as he said: "The documents that were required of me are to bring an inheritance order from an Israeli Sharia court in West Jerusalem, and this is the reason that led to the rejection of the lawsuit because we brought and submitted a Jordanian inheritance order, you and us. (p. 24, lines 9-10). The defendant admits that he issued an inheritance order from an Israeli court as early as June 2023, but he did not forward the document to the appraiser, as he believed, according to him, that the appraiser had stopped his work because the plaintiffs had not cooperated with him. The defendant added in his testimony "the great proof that I did not stop submitting documents before the appraiser" (p. 26, lines 28-29).
36. If so, it can be seen that the defendant admits that he intended to enforce and uphold the agreement and that in fact the agreement did not give him an option not to produce documents – " So what we did with Judge Banki, there was no agreement, is that what you say? It was an option for you and you can decide what you want to do. You invent documents, you keep them. You don't invent, you don't keep them. Is that what happened? A. No. If you answered us and we made progress in the agreement, we should have implemented the things that we undertook to do. " (p. 26, lines 7-11. Emphasis is not in the original - A.B.).
37. In practice, the two parties do not disagree and agree that the defendant was not given any possibility of withdrawing from the agreement. Their conduct and actions in the execution of the agreement speak for themselves and clarify the essence of the agreement. The defendant is required to do everything in his power to produce the documents required to prove rights, but if he fails to do so within 6 months, it will not be seen as a breach of the agreement but rather as a failure to implement it. Any other way of interpreting the agreement, and in particular according to the defendant's position, renders the agreement and its purpose redundant. It is illogical on the one hand to order the appointment of an appraiser and demand that the defendant do everything in his power to produce the documents of rights, and on the other hand to determine that the defendant can decide from the outset that he does not produce the documents of rights, and after six months from the date of signing, the agreement will expire.
38. This conclusion is also consistent with the testimony of Adv. Hassan on p. 15. Adv. Hassan also clarifies that there was no dispute regarding a significant part of the defendant's rights in the land, the dispute stemmed only from the inheritance of the rights of the late Mrs. Zelekha, the defendant's grandmother. See also his testimony on p. 16, lines 31-36, according to which there was no inheritance order approved by an Israeli court, since there is an inheritance order from the Jordanian Sharia Court that does not "occupy in Israel" (p. 18, line 7). As stated, this is the reason why the defendant applied to a court in Jerusalem to approve the inheritance order from the Sharia Court.

The conduct of the parties and their good faith

39. Section 39 of the Contracts Law (General Part) 5733-1973 (hereinafter: "the Contracts Law") imposes on the parties a duty to act in an acceptable manner and in good faith in the fulfillment of an obligation arising from a contract, including the duty to actively cooperate in promoting the contract. Section 28(a) of the Contracts Law states that a party that prevented the existence of a suspension clause in the contract is not entitled to rely on its non-fulfillment.
40. As stated above, the defendant should have done everything necessary to produce documents in accordance with the provisions of the agreement (there, as aforesaid, he was defined as a plaintiff). As stated in the agreement – "As part of this purchase, the plaintiff will do everything necessary to produce documents for the purpose of transferring his father's and uncle's parts in the land registry. "The defendant was aware of the provisions of the agreement that were clear and clear to him, and indeed, as it appears from his interrogation, he acted to obtain the document of rights as early as June 2023, but in the end it was not submitted to the appraiser. And to be precise. I will emphasize once again that it is clear from the defendant's testimony that the defendant was aware that he had to transfer this document to the appraiser in order to carry out the sale (p. 24, lines 6-12 and lines 21 onwards).
41. The defendant acted in bad faith when he chose to hide this material document from the court, the appraiser and the plaintiffs, and waited for the six-month period to pass in order to claim the expiration of the agreement. This conduct undermines the defendant's good faith and testifies to a deliberate attempt to thwart the execution of the transaction.
42. In practice, the defendant breached the agreement. The defendant's attempt to rely on the lawsuit, according to which if the documents are not produced within 6 months, the agreement will expire, constitutes bad faith, given that this line of defense was born retroactively and does not even conform to the provisions of the agreement. The defendant removed this sentence from the overall context of the agreement and turned the agreement into an unreasonable agreement and without any purpose.
43. The plaintiffs also did not put their hands in the plate. Even if we ignore the plaintiffs' attorney's argument that the email was invalid, this problem was resolved already in June. Despite the aforesaid, the plaintiffs delayed a long time until they contacted the agreed appraiser on November 8, 2023, long after the appraiser sent them a letter requesting their cooperation and salary. In fact, about 5 months have passed since the appraiser's letter.
44. The question arises as to whether the plaintiffs' conduct during those 4.5 months in which they completely ignored the appraiser's letters and did not act to implement the agreement, amounts to a waiver of their rights by virtue of the agreement to purchase the defendant's rights in the land.
45. In practice, the law did not establish a fixed period of several months from which a waiver automatically derives. A waiver will be determined only when the totality of the circumstances clearly indicates the abandonment of the right and there is solid evidence of this (see, for example, Civil Appeal 7156/10 Hayarkon Ltd. v. State of Israel Israel Lands Administration (October 11, 2012)), and usually when the other party relied on this behavior and changed its situation.
46. Silence, temporary refraining from exercising the right, or conduct that can be interpreted in several ways will not, in and of itself, be sufficient to prove a waiver (Civil Case 58990-01-22 Tal Frenkel v. Yaniv Fibo (August 31, 2026); Civil Appeal 8427/12 Aryeh Jacobson v. Niv Vigdor (December 22, 2014)). In the case at hand, as clarified, the plaintiffs did not cooperate with the appraiser for about four and a half months. Indeed, in an email dated November 8, 2023 sent by the plaintiffs' counsel to the appraiser, it was stated that this email was forwarded after a number of notices were left to the appraiser, but no evidence was presented regarding attempts to contact the appraiser, and the plaintiffs even withdrew the affidavit of their counsel, so that it was not possible to clarify this issue. In the absence of sufficient evidence in this regard, the court assumes that the plaintiffs chose to refrain from exercising their right during this period.
47. However, this is a period of only a few months, a period which, in the circumstances of the case at hand, cannot be said to mean the abandonment of the right to purchase the land. The plaintiffs contacted the appraiser at the beginning of November, and this claim was even filed shortly thereafter, in December 2023, after the defendant refused to continue with the appraisal process and refused to implement the agreement.
48. I will also note that the defendant did not lay any basis for the fact that he changed his situation for the worse or relied on the plaintiffs abandoning the right to purchase. The defendant's only argument as to the question of why the agreement should not be fulfilled was the passage of 6 months and the fact that his counsel was unable to "receive an answer within the scope stated in the agreement" (p. 25, lines 26-32).
49. In this situation, the agreement signed between the parties must be enforced.

Validity of the Confession Clause on the Claims of Invasion Due to Failure to Implement the Agreement

50. The defendant claims that after the six-month period had passed and the plaintiffs had not paid the consideration, the clause that constitutes an admission by the plaintiffs of his claims in the previous proceeding came into effect. Therefore, the defendant petitioned in his statement of defense to instruct the plaintiffs to vacate the land and to oblige them to pay proper use fees.
51. Beyond the fact that it is not possible to do so by means of a statement of defense and the defendant should have filed a separate claim, as determined above, the appraisal process was not completed and the consideration was not determined, so that the clause did not come into effect and the defendant's arguments in this matter should be rejected. Without derogating from the aforesaid, I will reiterate that the defendant breached the agreement and therefore his demand to enforce the "confession clause" is puzzling to say the least.

Conclusion