The reason why the defendant did not approve the payment schedule lies in the fact that he and his wife had not yet found another alternative apartment to which they could move. Similar to the plaintiff, who asked to wait until the payment schedule was settled with the purchaser of her apartment in Kiryat Bialik, it was clear that from the defendant's point of view, this was also a material matter, in view of his intention to purchase an alternative apartment. Had the defendant found such an apartment, he should have adjusted the payment schedule in the transaction for its purchase to the payments he was supposed to receive from the sale of the apartment to the plaintiff. In these circumstances, a difficulty arises in filling the contractual deficiency relating to the payment dates by means of the default set out in section 41 of the Contracts Law, taking into account that the date and manner in which the consideration would be paid depended, as far as the defendant was concerned, on a future transaction for the purchase of an alternative apartment. Similar provisions are also found in sections 9(a) and 21 of the Sale Law, 5728-1968.
The plaintiff knew that the defendant and his wife wanted to sell their apartment "because they wanted more children and it became too crowded for them" (paragraph 12 of the affidavit). Therefore, the plaintiff was aware that the payment schedule in the transaction should be determined, in effect, "back-to-back" with the payment schedule that would be determined in the agreement that the defendant and his wife would make for the purchase of an alternative apartment. It is not for nothing that Racheli waited for the defendant's response to the proposed payment schedule, after the plaintiff herself refrained, as stated, from incorporating a payment schedule on her behalf into the draft agreement until the day she signed the agreement for the sale of her apartment. In my opinion, the totality of these circumstances indicates an implicit agreement between the parties to establish a contractual arrangement that differs from the default established by law with regard to the dates and terms of payment.