A farmer signed a contract with a packager for export of pomegranates. Although a field check, prior to picking of the fruit, showed that the fruit was clean, a check of the Ministry of Agriculture at the packager showed that some of the fruits were infested with fruit fly and thus the fruits were disqualified for export and sold in Israel at a materially lower price. The farmer contended that the packager was required to re-sort the fruits to separate the infested fruits from the clean ones and export the clean fruits.
The Court accepted the expert opinion that the fruit fly female stings the fruits only when on the tree and thus the packager is not liable for the infestation of the fruits. Because the contract did not deal with a case like this and because it was the first transaction between the parties one need check what is customary in such cases in the market. Because in customary agreements the farmer is not obligated to supply un-infested fruits (but the price paid depends on quality) and the packager is not required to re-sort fruits to separate infested and clean fruits, the Court held that the packager was not required to re-sort and the farmer is not liable for the losses of the packager due to the infestation