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- Already before the first trial, when the court approached Mu'taz who was present in the courtroom and asked why he did not file a statement of defense, Mu'taz responded: "Why do we have to file a statement of defense? The plaintiffs filed a lawsuit against me, I want to return to them what needs to be returned. Plaintiff 1 has a dunam that needs to be returned, it has nothing to do with the transaction made by Attorney Omer Na'amneh. Attorney Naamneh signed me paperwork, I don't know what he signed me. I didn't sell that dunam either..." It should be noted that the court rejected three different requests by the plaintiffs for a verdict in the absence of Ali and Mu'taz.
- In the usual case of conflicting transactions, the competition between the rights is between the purchasers in the two transactions, with the other buyer usually trying to convince the court that he registered the rights in good faith and in return. In the circumstances here, after Ali entered into a counter-transaction and Mu'taz sold all of his rights in the plot, and after both of them allegedly received consideration for their rights and no rights remained, they both chose to join forces with the plaintiffs, their relatives. During his interrogation in court, Ali was forced to admit that he had signed the sale agreement to Mu'taz and all the documents relating to the transaction, as will be detailed, but claimed that he did not understand that he was selling his rights and denied receiving consideration for this transaction. Mu'taz 'went all the way' and denied everything, and argues that it began with the fact that he sold to Sayid only "his land" (and not Ali/the plaintiffs' land) and ended his testimony by saying that he did not buy or receive rights from Ali and his brothers, because he did not pay them anything and that the agreement that was presented was forged!
- When examining all the testimonies and evidence that were submitted, it is evident that the versions of Hussein and Mar'i, Ali' s brother and the parties to the contrary deal, were not heard. Nor was the version of Mustafa Na'amneh (a second-degree cousin), who, according to Ali's testimony, came to his home together with Attorney Omar Na'amneh, misled him about the essence of the agreement, and deceived him together with Attorney Na'amneh (p. 32, question 34 of the transcript). It is also puzzling to note that despite the plaintiff's claims in his cross-examination, about various correspondence and recordings between the parties, prior to the filing of the lawsuit, which ostensibly indicate that Adv. Naamneh admitted to mistake, the plaintiffs did not request the submission of this evidence, and it seems that for good reason.
It is doubtful whether the entire factual picture was disclosed to the court, but whether it stems from the omission of one of the parties or whether it is a matter of conscious moves, the matter has an evidentiary implication. The failure to summon Marei, Hussein and Mustafa and the failure to submit the alleged correspondence are attributed to the plaintiffs, and I will address this matter later as well.
- The contradictory deal: Ali's version - the agreement signed between Ali, Mar'i and Hussein, on the one hand, and Mu'taz on the other, is a three-page agreement made on December 1, 2022. On each of the pages of the agreement are signatures that appear to be the signatures of both parties to the transaction (the three sellers and the buyer). At the same time, an irrevocable power of attorney was signed by all the sellers in favor of Mu'taz, and later a "Declaration of Correctness of the Details in an Online Statement" form was signed that was submitted to the authorities.
- This is a relatively simple agreement, short and not cumbersome. The title of the document, which was written in Hebrew, was written "Agreement" and the names and ID numbers of Ali and his two brothers, Mar'i and Hussein, were written, as well as Mu'taz's details. Under the names of Ali and his brothers, in the title of the agreement, it was written "The Sellers" and under the name of Mu'taz it was written "The "
In the first clauses of the agreement, and as a background to the agreements, the first "because" states that the sellers are the owners or those entitled to be registered as owners of the land, the details of which are defined in the clause, stating block and plot numbers as well as its total area. The second "Why" states that the transaction relates to the full rights of the sellers (Eli and his two brothers) in an area of 3,187 square meters, which constitute 3/12 of the plot. In the third "because", it was stated that the sellers are the owners of the rights and/or are entitled to be registered as the owners of the rights in an area of 3,187 square meters. According to the sale agreement, the consideration for the rights was set at ILS 200,000, and according to clause 7 of the agreement, the sellers' signature on the agreement constitutes an admission and confirmation on their part that they have received all the consideration and/or are due to them from the buyers.
- Despite the general claim that Ali's signature on the agreement was forged and despite various evasion attempts, Ali confirmed in his testimony that he signed the three documents relating to the transaction. He signed each of the pages of the agreement, he signed an irrevocable power of attorney in favor of Mu'taz and the declaration form, together with his two brothers.
- As is well known, according to the presumption of signature, a person who signed a document is held to have read it, understood its contents, consented to what was stated therein, and that he is aware of the meaning and consequences of his signature, and therefore, cannot shirk responsibility [A. 6952/21 Vilenchuk v. Chen [Nevo] (October 22, 2023); CA 8510/09 Bank Hapoalim Ltd. v. Neuberg, [Nevo] (November 24, 2011), CA 4530/10 Bank Hapoalim v. Zoabi, [Nevo] (February 10, 2015)].
The applicant to contradict the presumption has the burden of proving his version with positive evidence as a "probable possibility" (CA 1513/99 Datiashdvili v. Bank Leumi Le-Israel Ltd., IsrSC 55(3) 591, 594 (2000); CA 6799/02 Yulzari v. United Mizrahi Bank Ltd., IsrSC 58(2) 145, 149 (2003); CA 1333/14 Mitri v. Dobronsky, [Nevo] (July 28, 2015)).
- It should be said at once that the presumption of signature was not concealed. On the simple level of understanding the text, I will note that although Ali claimed that he was not proficient in the Hebrew language, and it is quite possible that the argument was correct, I was under the impression that he could read Hebrew. During his interrogation and when he was presented with the three documents and he was asked to confirm his signature on them, I insisted that he try to read, independently and without assistance, the title of each of the documents and he fulfilled the task (a sale agreement, an irrevocable power of attorney and a declaration form). Even if Ali has difficulty speaking or reading fluently in Hebrew, I am of the opinion that he could have read and understood the main text of the agreement, even if I assume that the person who signed it did not read or explain its contents to him. A basic understanding of the Hebrew language and in general is sufficient to clarify that this is a sale agreement, of an area of 3,187 square meters in the plot and block listed. The key words that indicate the essence of the agreement do not require proficiency in the language or any legal understanding. Ali, who testified that until his involvement in the accident a few years ago, he worked as a plaster (also as a freelancer), should have understood, and in practice, understood the essence of the document he signed and the identity of the other party to the agreement.
- The questions posed by Attorney Naamneh appear to indicate that at the time of the signing of the sale agreement by Ali's brothers, Mar'i and Hussein, Ali was abroad (Georgia) with his daughter. His brothers called him, in the presence of Adv. Na'amneh, and asked about the date of his return in order to sign the sale documents. During his interrogation, Ali was asked to confirm this conversation. He denied the conversation and claimed that no one had called him, without presenting a counter-version, whether with regard to the coordination of the date of the signing between him and his brothers, or regarding his stay abroad or in general. Whether Ali signed the agreement alone or with his two brothers, the testimony of the two brothers, who are parties to the agreement, was essential in order to understand the essence of the agreement and what was behind it, and certainly to prove Ali's claims. This is an agreement by virtue of which the rights of the two brothers, Mar'i and Hussein, were also transferred to Mu'taz, and no argument was raised regarding the position of the latter in relation to the agreement.
- Ali's basic version is that he did not understand what he had signed. In the meantime, he gave a variety of sub-versions on the matter. Once he claimed that he thought he was signing the documents in order to transfer the rights to the Land Registry Office, the second time he claimed that he thought he was signing documents and waived his rights to Mustafa, and a third time he claimed that he had no rights at all, and that the rights belonged to his deceased father. The following are Ali's versions, according to their order in his interrogation;
- Ali testified that Attorney Omer Na'amana came to him in the fifth house together with Mustafa Na'amneh and asked him "to give up this part" (p. 31, s. 3). He claimed that "Omar Na'amneh and Motsafa who came with him" deceived him (p. 32, s. 33). Later, when asked how Sa'id and Na'amneh had deceived him, he replied, "He signed me, I didn't read anything, he says - it's land, you have Na'amneh Mustafa's share. You have your uncle Mustafa's plot, which you have to give up." (p. 33, s. 5-6). According to him, they asked him to sign a document, and he thought that just as he had signed for his uncle Sa'id (i.e., the plaintiffs' father), he was required to sign for his uncle Mustafa as well. He claimed that he signed the document without reading it because he believed them (p. 33 of the transcript).
- Elsewhere, he claimed, "He told me that he wanted to transfer the rights in the land registry, before his cousins transferred it to the land registry. And that's what happened, I gave up on him... I signed, and I didn't know it was him... The same land that I gave up to Wassam" (Q. 9 ff.; emphasis here and below, not in the original).
When asked later why he signed for Adv. Na'amneh, he replied, "I believed them, why didn't I understand" (p. 34, paras. 1-2). Later on, we will be asked.. So when they come and sign you a sale agreement, what, you don't find out? I'm not saying - I don't have land, I've already sold it?" Ali replied, "The land is not mine, not mine, it's just where my father is." (p. 34, paras. 5-7).