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Ruling: The claim of learning from the Gush Dan offer breaks into two: 1. It can be a waiver of early payment. 2. Since it is a departure (at least based on location) from the original agreement, it causes a reset of the whole agreement.
We see that as soon as the Gush Dan idea fell through, pl sent email demands about the money due. Apparently, pl saw the Gush Dan possibility as a different situation – a branch that already existed, making it easier to give over and more important to keep. When the franchisee there decided to stay, pl went back to the original deal with def. Regarding def’s lawyer’s ultimatum, changes in the agreement cannot be made unilaterally, even more so since the agreement states that any changes must be done in writing with the sides’ signatures. Therefore, according to the majority, def have to pay for breach of contract.
According to the minority opinion, while formally def breached the contract, from the record of the communication between them, it is apparent that the delay of payment was not the reason for pl’s retreating from the deal. On can infer from the contract, that it is only when the breach of contract was the cause of the undoing of the agreement, that the significant penalty is called for. According to the majority, the lack of payment did indeed set into motion the dynamics through which the agreement ended.
What remains to be determined is whether the full penalty amount found in the contract is to be applied, and, if not, how much should def pay.
P'ninat Mishpat (832)
Beit Din Eretz Hemda - Gazit
689 - Me’ein Sheva at a Rotating Venue
690 - Who Breached the Contract? part 3
691 - Who Breached the Contract? – part IV
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Beit Din Eretz Hemda - Gazit
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