I also found that there was no distinct date at the time when there was a final and certain conclusions took place together, as opposed to gradual progress in the negotiations between the parties. In fact, I am satisfied that there was no finality on the part of the defendant to enter into the contract.
Indeed, the defendant and his wife, Adi, did not act to ensure that the plaintiff, or anyone on her behalf, would be aware that the defendant did not intend to sign the agreement except subject to finding an alternative apartment and receiving approval in principle for the mortgage from the bank. Had they clarified this in advance and explicitly, it is possible that Racheli would not have continued to negotiate with Lihi in relation to the draft agreement, and in any case the plaintiff could have planned her steps accordingly. However, this conduct does not change the conclusion I have reached. As detailed at length above, the question of the defendant's discretion to enter into a contract is not decided on the basis of the plaintiff's knowledge or lack of knowledge of the terms of the mortgage, but rather on the basis of the totality of the circumstances of the matter and the objective indications that indicate the lack of discretion. Therefore, even if the defendant and his wife should have clarified to the plaintiff the condition as far as they were concerned, this omission does not establish the conclusion that the defendant has made up his mind to enter into the contract.
I also noted that the defendant and Adi gave their consent to the fact that Lihi would substitute a draft agreement with Racheli, since they believed that these contacts were incapable of formulating a legal conclusion regarding the validity of the engagement between the parties (see, for example, Adi's interrogation, p. 55 of Pro. of May 6,2026, paras. 16-24). The defendant also knew on October 13,2024, following his conversation with the mortgage consultant, that he and his wife would be required to find an alternative apartment at a lower budget, and that it was possible that they would not be able to do so. Despite this, the defendant did not share the matter with his counsel or with the plaintiff. In this context as well, it can be assumed that the sharing of the information might have led to more cautious conduct on the part of the plaintiff and the attorneys. However, I am of the opinion that the defendant's conduct has implications on the level of good faith, as will be explained below, but this does not create an intention to enter into a binding contract.