Adv. Horowitz: Has it come to an end?
The witness, Mr. Almoznino: has reached its end in the format we are in, by the way I have completed the The deal.
Adv. Horowitz: When is the end for you that has arrived?
The witness, Mr. Almoznino: When the property passes to me in the same condition as I signed it.
Adv. Horowitz: I understand, do you mean that at the moment the rent you receive belongs to the defendants?
The witness, Mr. Almoznino: Nope.
Adv. Horowitz: But you didn't get the property.
The witness, Mr. Almoznino: I didn't get the property in the condition I bought it, that doesn't mean That I received a property that is part of the property I bought."
[See pp. 14-15 of the transcript].
- Elsewhere in his testimony, the father divided his statement in such a way that the plaintiff, and in his own words , received possession of the land, which, as stated, they gave to Aura for the purpose of building a new apartment and receiving rent for the old apartment, but did not receive possession of that old apartment, and as he said - "Okay, I got land, I didn't get an apartment and that's what we are sitting here" [see p. 19 of the transcript, lines 6-7].
- The same knife that was inserted into the original cake according to the sale agreement turned it into a sugar lily cake, strawberries, chocolate, pink cream and a sweet filling [see "Father Shames" M. Shalev, 1988], since the collapse of the building and the Pinui-Binui agreement with Aura immeasurably preceded the business intentions of the plaintiff, or her father, until the new situation overtook their original existential interest. The plaintiff's bite of this pie is therefore one of those "cases in which the existence of the proximate can be seen as the fulfillment of the express or implied intention of the parties, and then the application of the rules of interpretation and completion (taking into account the principle of good faith) will suffice to reach the desired result" [see A. Zamir, The Sale Law, 5728-1968 - Commentary on the Laws of Contracts (Vol. 1, Second Edition, 2023), at p. 297, hereinafter: "Zamir", and Civil Appeal 672-81 Jerusalem Hotel Fellows v. Take, IsrSC 40(3), 169 (1986)].
- In the kitchen of civil law, even the driest law and even the driest contract get wet in the purifying waters of the principle of good faith, as "it is the duty of a party to exercise his legal-procedural powers in an acceptable manner and in good faith. he must act as a reasonable and fair person in the special circumstances of the case" [see Miscellaneous Applications 2236-06 Hamami v. Ohayon [Nevo] (2006)], and as for the exercise of such a right, "the standards of social morality and justice that are appropriate to apply in interpersonal relations in Israel must be upheld" [see Civil Appeals Authority 2443-98 Lieberman v. Discount Bank, IsrSC 35 (4) 804 (1999)].
- Therefore, and since the doctrine of approximate fulfillment can be seen "as deriving from the application of the principle of good faith to the fulfillment of the contract itself. When the fulfillment of a contractual obligation as written and worded becomes impossible or impracticable for some reason, but the purposes of the contract can be realized by fulfilling it with a change, then the obligation should be seen as simplifying its original form and taking on a form adapted to the change in circumstances", it is effective "even in cases where the parties do not turn to the court, or the appeal to it is for the purpose of declaring the content of the contract and not for the purpose of receiving remedies for the breach" [see Zamir, 299].
- All this after the Supreme Court ruled that "a contractor who insists on the strict performance of the contract despite the material change that has occurred in it due to external circumstances - such a contractor does not act in good faith" [see Civil Appeal 6328-97 Ezra Regev v. Ministry of Defense, IsrSC 55(5) 506 (2000)], and that " sometimes the result of the breach is the granting of power to the other contractor to perform certain actions within the scope of the contract, which would otherwise be considered a breach, or a denial of power, given to the contractor who is in breach under the provisions of the contract" [see High Court of Justice 59-80 Public Transportation Services Beer-Sheva in Tax Appeal v. National Labor Court in Jerusalem, IsrSC 35(1) 828 (1980)].
- As witty arrows for the purpose of our discussion, they are the same observations that Zamir discussed in another essay, according to which "the flexibility in the requirement of compatibility of existence is expressed in the fact that by virtue of the change in the mode of subsistence, or even the replacement of the object of the obligation, the creditor is not entitled to insist on full and precise fulfillment, he is not entitled to cancel the contract due to the non-conformity, and he is not entitled to ignore the proximate existence and demand compensation as if the obligation had not been performed at all"..."If it had not beenThe doctrine in question, it could have beensaid that the debtor's proposal for an associate performance is not relevant at all, since it is not in accordance with the agreement. Hence, the violation is, as it stands to reason, the blossom is thorough, and even if it is not thorough, there is no clear infraction at all that should prevent the nullification. It turns out that at that time, the victim was also entitled to ignore the proposed execution, and to demand full compensation for the agreed charge. The theory of approximation, as a concretization of the principle of good faith, is therefore an additional instrument which, in special circumstances, stipulates in our law the requirement of full compatibility between consent and fulfillment, or more precisely, mitigates in those circumstances the consequences of the non-conformity."
[See Zamir, "The Principle of Conformity in the Fulfillment of Contracts" (1990), 288-289].
- The testimony of defendant No. 1, the less sophisticated and less skilled party, considering the father, was not legally fraudulent, but pointed out in her astonishment the nudity of the prosecution when she answered as follows:
Adv. Friedman: How do you expect to be able to get the apartment when it is impossible to enter?