Does the condition from the defendants' point of view to receive approval in principle for a mortgage from the bank negate the parties' final opinion?
Although I concluded, as stated, that the parties did not intend to enter into a binding agreement for the sale of the apartment, and that the draft in itself did not reflect a final and binding agreement, for the sake of completeness of the picture, I found it necessary to take into account the claim of the defendant and his wife, Adi, according to which they made it clear to Sapir that they would not sign the agreement for the sale of the apartment to the plaintiff, until they received approval in principle from the bank for a mortgage that would be used for the purpose of purchasing an alternative apartment (paragraph 9 of the defendant's affidavit; paragraph 8 of my affidavit; see also: The defendant's interrogation at p. 91 of the pro of May 6,2026, paras. 18-27).
Already at this stage, it should be said that I fully accept the argument of the defendant and Adi, according to which they informed Sapir regarding the condition relating to obtaining approval in principle for a mortgage. However, this fact, in and of itself, does not reflect on the question of the parties' discretion. This is for the reason that the test for the existence of discretion is an objective test, which is examined on the basis of external criteria, including the circumstances of the case, the conduct of the parties, their statements prior to and after the conclusion of the agreement, as well as the content of the document itself (Civil Appeal 7193/08 Adani v. David [Nevo], paragraph 9 of the opinion of the Honorable Justice A. Vogelman; 18 July 2010). In our case, as will be detailed below, the defendant and his wife Adi did not bother to ensure that the condition that was necessary for them to carry out the transaction - obtaining approval in principle for the mortgage - would be brought to the attention of the plaintiff or anyone on her behalf. In view of this, and since in this matter objective external appearance and not the secrets of the heart are determined, this argument should not be relied upon in itself to establish a conclusion according to which no final decision was formed on the part of the defendant and Adi.