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Based on ruling 82073 of the Eretz Hemdah-Gazit Rabbinical Courts

Was the Garden Included?


Beit Din Eretz Hemda - Gazit

Tevet 5783
Case: The defendant (=def), a land development company, sold rights to land for a housing unit to the buyers (=byr) for 270,000 NIS. On the contract, on top of the blank next to the number of units, the handwritten word "garden" appears. Par. 7 of the contract says that all additions to the apartment, including gardens, belong to def unless otherwise specified in the contract. The contract and payment were handled by the organizers of a buyers group (=obg), who took many of their members’ signed contracts to def for signing. After the initial purchase, def demanded of byr an additional 70,000 NIS for the garden. Five years later, byr entered an agreement to transfer their rights in the unit to the plaintiffs (=pl). The agreement between byr and pl requires pl to pay the remainder of byr’s obligation to def – 158,800 NIS, "which includes an additional 70,000 NIS for the garden in addition to the 270,000 NIS found in the sales contract." Pl gave this money to obg, who gave it to def. In the contract between byr and pl, par. 5 requires byr to provide pl with def’s confirmation that byr is able to transfer rights to the unit + garden to pl. Pl also had to sign a letter to def to accept byr’s obligations. Pl is demanding 70,000 NIS back from def, for receiving extra money. Pl claims that only because byr did not want to enter litigation with def did pl agree to pay the extra money, but the 70,000 NIS was not due and that he signed the letter of obligation only because it was the only way to get def’s cooperation. Def brought testimony from obg’s relevant worker that 270,000 NIS was the set price without a garden and that obg may have written "garden" to identify what type of apartment byr wanted, not to say the garden was included in the 270,000 NIS price.

Ruling: Since pl is attempting to extract money already paid and also obtain a garden, the burden of proof is upon him. The addition of "garden" to the contract is not sufficient proof, as def’s explanation is reasonable. If the word were of such significance and was to override par. 7, its addition would have required initialing by the sides, as other important additions in the contract had.
Additionally, we view the letter of obligation as byr’s admission that def had the 70,000 NIS coming to them, or there should have been a clause where they clarified that it was not. Since the two sides to the original contract agree to its interpretation, the intention of the sides overcomes the document’s simple meaning.
Both sides agree that had pl not signed the letter of obligation, def would not have given its confirmation of the conditions of byr’s purchase, through which pl could gain ownership via byr. Since def gave it only on the assurance that pl would pay the 70,000 NIS for the garden, pl cannot now back out of it. Although there are times when one making an apparent admission can claim that it was made with sarcasm, this cannot be done when the recipient of the admission loses money as a result, when the request of money is reasonable, or after the one admitting already paid (see Shulchan Aruch, Choshen Mishpat 264:6-8). Pl fails all of these conditions.
Therefore, pl does not deserve return of the 70,000 NIS.

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