The defendant emphasized that he was not aware of any transaction between Ali and the plaintiffs and that the plaintiffs did not bother to register a warning note in their favor in order to prevent a legal accident. It was claimed that prior to the execution of the transaction with Said, all the relevant documents were examined, and there was no impediment to the execution of the transaction.
- In addition, it was claimed that Mu'taz sold to Sa'id the part he received from Ali and the transaction ended in the registration, while the part that Mu'taz inherited from his grandfather, only a cautionary note was registered, in favorof Sa'id.
- Defendant 6, Basel, claimed that he purchased the rights in part in good faith and for full consideration based on the registration of Said's rights at the Registry Office. He claimed that prior to the engagement with Said, he asked to review the wording of the registration and made sure that Said's rights were free of any comment regarding the sale or undertaking to sell. Basel claimed that he had visited the plot before the engagement with Said, examined it and found it available that suited his needs.
- In their summaries, the plaintiffs expanded and even changed the front of the dispute - they claimed that the chain of transactions, beginning with the transaction between Ali and Mu'taz, did not exist and were not created, and hence, Sa'id could not purchase the land from Mu'taz and transferit to Basel. According to the claim, Ali's testimony (which we will refer to below) made it very clear that he did not know at all that he was signing a sale agreement with Mu'taz, and that he was misled by Attorney Omer Na'amneh into thinking that he was signing documents necessary to complete a gift transaction with the plaintiffs. It was claimed that Adv. Naamneh took advantage of the fact that Ali does not read Hebrew well and signed the documents of the second transaction without Ali knowing that he was on a transaction that contradicted the gift agreement signed with the plaintiffs.
- According to the claim, this is a transaction that originated from an act of fraud, deception and deception, which were made against Ali by Attorney Naamneh. It was argued that the act of fraud and deceptionconcocted by Sa'id with the intention of taking over the land in dispute included a number of moves; the first - a forgery of the sale contract dated December 1, 2022, according to which Ali allegedly sold the plot to Mu'taz to Mu'taz, the second - the sale of the land from Mu'taz to Sa'id, and the third - the sale of the land by Sa'id to third parties. It was argued that since the aforementioned deception and fraud required the purchase of the land from Ali, Mu'taz was recruited, who testified that he did not purchase the land in dispute from Eli.
- It was claimed that Ali fell victim to the act of fraud and deception concocted by Sa'id and Attorney Na'amneh, and signed a sale agreement without understanding what he was signing and believing the lie, as if he were signing land registry documents, and that Mu'taz did not purchase the land in dispute from Ali (but rather purchased another part of the land). The plaintiffs referred to Mu'ataz's "clear and unequivocal version," according to which he "did not purchase or sell the land in the wards." Mu'taz, according to the plaintiffs, did not pay consideration to Ali, did not sell the land in dispute to Said, and did not receive consideration from Said. Mu'taz did indeed sell land to Sa'id, but this land was land that Mu'taz had inherited from his father, and not land that he had purchased from me.
- In terms of contradictory transactions, it was argued in the summaries that in order to overcome the gift transaction, Sa'id had to prove that he had purchased for consideration and in good faith, and that he had failed in this task. Sa'id failed to prove how much money was paid to Ali, and after Mu'taz denied that he purchased the land from Ali, Sa'id cannot benefit from the provisions of section 9 of the Land Law, all the more so when he refrained from proving that Mu'taz purchased the land in dispute in exchange and in good faith.
- It was further claimed in the summaries (and this was not claimed in the lawsuit or in the plaintiff's affidavit) that the gift transaction between the plaintiffs and Ali was not an ordinary gift transaction and that it was a "land exchange between the cousins", incidental to an inheritance arrangement in the family.
- At the end of the summaries, and for the first time, the plaintiffs petitioned in a three-line paragraph to split the remedies. It should be said immediately that I see no reason to discuss this request of the plaintiffs for split remedies, when the request was not raised in the statement of claim and no independent motion was filed on the matter at any stage of the proceeding. The defendants also did not refer to this request in their summaries, and I do not intend to address it. According to the Civil Procedure Regulations, 5779-2018, and unlike the previous regulations, the plaintiff must include a request for compensation for relief as part of the list of requests, and the court must consider the request until the end of the pre-trial period. Regulation 25 of the new regulations in effect precedes the date for a decision on a request for split remedies. Since the plaintiffs did not file an application on the dates set out in the Regulations and acted in a significant deviation from them, there is no justification for hearing their request within the framework of the judgment (see Cell (Tel Aviv) 2660-03-21 Kabin Investment House v. Excellence Mutual Funds Ltd., [Nevo] (December 14, 2021)).
- As I have opened this review of the parties' arguments, I will reiterate that the change and expansion of the plaintiffs' arguments is also significant in terms of the credibility of their version. The plaintiff's testimony in court showed that after the plaintiffs learned of the contrary transaction, and before the lawsuit was filed, the plaintiff visited the office of Attorney Omer Na'amneh together with Ali in order to review the relevant documents (according to Ali's version, this was a year before the filing of the lawsuit, p. 35 of the transcript). It also emerged that there were various talks between the relevant parties, apparently in an unsuccessful attempt to settle the dispute between them. The statement of claim also included Ali's reply, which he gave to the plaintiffs, when they sought to find out about his engagement in a transaction contrary to the undertaking he had given them. However, the statement of claim dealt with the competition between the rights, with the plaintiffs explicitly claiming that Ali sold his rights in a counter-transaction and that Mu'taz sold the rights in another transaction, in order to make it difficult for the plaintiffs. The fundamental difference between the argument in the statement of claim and the argument in the summaries raises questions, mainly because the plaintiffs were in contact with Ali before the filing of the lawsuit, and also with Mu'taz as we will see below, and if Ali was really misled and deceived, there is no doubt that he would have given them his version of events on the matter, and the plaintiffs would have 'came' with her and 'cried out' her in court. This is the strongest card they had.
Counter-transactions
- As is well known, the starting point for examining competition between opposing transactions is that these are valid transactions. In view of the versions provided by Ali and Mu'taz, which we will discuss below, since various parts of the versions are relevant both to the question of the validity of the transactions and to the discussion of the competition between rights, I will preface and refer to the normative framework relating to conflicting transactions; Later, I will examine the validity of the transactions and discuss the competition between them.
- The matter of counter-transactions is regulated in Section 9 of the Real Estate Law, 5729-1969 (hereinafter: the "Real Estate Law"), which states that:
"If a person undertakes to make a transaction in real estate and before the transaction is completed in the registry he re-undertakes to another person to a contrary transaction, the right of the owner of the first transaction is preferable, but if the second acted in good faith and in return and the transaction was registered in his favor while he was still in good faith, his right is preferable."