Family file (Jerusalem) 48335-06-24 Anonymous vs. Anonymous - part 3

00From the general to the individual

0

Did the plaintiff succeed in contradicting the "presumption of gift"?

37. As stated above, with regard to the money that a couple received from their parents during the marriage, the starting point is that it is gift money, and therefore the "presumption of gift" should be applied, in light of the special relationship that prevails between the family members.
38. Therefore, in our case, the "presumption of gift" applies with respect to the funds that the plaintiff transferred to the defendants, where the burden of contradicting this presumption and proving that it was a loan rests on the plaintiff's shoulders.
39. I did not find that the plaintiff succeeded in contradicting the "presumption of gift" and proving that the funds transferred in the agreement were a "loan" to the defendants, as I will explain below.

The defendant was not aware of the meeting with Adv. Toledano, at which the agreement was drawn up and signed

40. From hearing the testimonies, I came to the conclusion that the defendant did not know about the existence of the loan agreement in real time or afterwards, until the marital dispute broke out between the defendants.
41. The plaintiff's testimony - first of all, the plaintiff did not know at all whether the defendant knew about the existence of the agreement signing meeting or not. The plaintiff knew how to explain in a clear and orderly manner how she decided to secure her money by means of a loan agreement, how she approached the transfer of the place of the Toledano hearing and set up a meeting with her in her office, what she asked her to write in the agreement, where the office was located and other technical details (see at p.  23 of the pro of the hearing, in question 6 ff., at p.  24).
42. However, when the plaintiff was asked why the defendant did not join the signing meeting of the agreement, she replied: "I did not tell her, her husband should tell her" (see at p. 25 of the prologue in paras.  11-17).
43. When the plaintiff was asked why she did not ask to state in the agreement itself regarding the defendant's knowledge of the loan and its consent, she claimed that it was the defendant who managed the matter and the defendant relied on him (see pp. 35, paras.  18-21 of Peru).
44. From the plaintiff's testimony, it appears that prior to the signing of the agreement, she herself did not act in any way to inform the defendant about the meeting with Adv. Toledano and the signing of the agreement, nor did she inquire with the defendant whether he made sure to inform defendant 2 of the matter.
45. The conclusion that arises, which is not in dispute, is that the plaintiff did not update the defendant regarding the meeting that was intended to sign the loan agreement.
46. As for the defendant, while he claimed that the defendant knew about the meeting that was scheduled for June 1, 2016, but was unable to attend the meeting (see pp. 38, 10-11, pp.  40, 16-26), he was unable to prove that she was indeed aware of its existence.  The defendant, who was married to the defendant, and who he claimed informed her that a meeting had been scheduled with the plaintiff for the purpose of signing a loan agreement, was unable to prove his claim.
47. When the defendant was asked why no other date was set for the signing of the agreement with the defendant's participation, he replied that he, as the representative of the family, did not see fit to do so, and that there was trust between the defendants (see pp. 48, para.  36, pp.  49, paras.  1-6 of Peru).
48. I do not accept the testimony of defendant 1 regarding the defendant's inability to come to the office of the transfer of the venue of the Toledano hearing in order to sign the agreement.
49. Even if we assume that this was indeed the case, it was not explained why it was not possible to wait for another date for the signing of the agreement. It was not claimed by the plaintiff or the defendant that there was a certain urgency to draw up the agreement on the same day, Adv. Toledano herself testified that the meeting in which the agreement was signed took place "spontaneously" (see pp.  11, paras.  19-27 of Peru), so that it cannot be concluded that the meeting had already been scheduled and could not be postponed to another date (in any case, as stated, no such claim was raised).
50. Here it should be noted that the defendant's testimony was not convincing in any way. The defendant's answers were evasive, unclear, and it was usually evident that he had difficulty answering questions.  In contrast to the defendant's testimony, it was the defendant's testimony that left a reliable impression and aroused credibility.
51. The defendant testified that she did not know at all about the meeting with Adv. Toledano in which the agreement was signed (see pp. 54, paras.  4-6 of Peru), and there is no dispute that she was not present at the meeting.
52. Under an unmediated impression, the defendant's testimony on this matter was reliable in my opinion, and in comparison with the other testimonies, which in any case did not convince the defendant that the defendant knew about the meeting in which the agreement was made and signed, her own testimony was listed as credible.
53. Toledano did not know whether the defendant was aware of the existence of the meeting and the loan agreement, but from the content of her testimony it is clear that the transfer of the venue cannot confirm that the defendant knew about the meeting or the loan agreement.
54. Moving the venue of the Toledano hearing testified that at the meeting (in which the agreement was drawn up and signed) she did not ask the plaintiff and the defendant about the defendant, did not speak to them on this matter at all, and did not call the defendant to clarify whether she agreed to a "loan" (see p. 16, paras.  5-15 of Peru).
55. Toledano testified that the agreement was made by her as a favor for her family member (the plaintiff) and not as parties represented by her. Therefore, it did not see the need to clarify why the defendant's name does not appear in the agreement (see pp.  12, 12-36, pp.  13, 1-8 of Peru).
56. Toledano reiterated that the agreement was drawn up as a favor for family members, that she worked on it for 5 minutes, and therefore she was not asked an unasked question about the defendant's knowledge of the agreement and the mention of this in the agreement (see pp. 20, 13-28 of Peru).
57. From the testimony of Adv. Toledano, it appears that no inquiry was made regarding the defendant's awareness of the agreement that was signed, her name did not come up in the meeting with the plaintiff and the defendant (in which the agreement was signed) and did not appear in the agreement.
58. In summary, in light of the above, I am satisfied that the defendant was not aware of the meeting with Adv. Toledano, and that a "loan agreement" was about to be signed that was supposed to bind her as well.

It was not proven that defendant 2 knew that there was an agreement and that it was a "loan" money and believed that it was a gift from the plaintiff

59. The plaintiff's testimony, when the plaintiff was asked whether she had ever spoken with the defendant and told her that it was loan money, she replied that it was enough for the defendant to tell the defendant (see p. 23, paras.  1-3 of the proclamation).
60. When asked again by the court whether she had spoken to the defendant about the "loan", she answered in general terms that the defendant knew that it was a loan (see pp. 35, paras.  24-27 of Peru).
61. The plaintiff's testimony indicates that she never claimed to the defendant that it was loan money or that an agreement had been made in the matter, and that it was the defendant who made sure to tell the defendant about it. The issue of the loan has not been discussed at all between the parties since 2016 until the outbreak of the marital dispute (probably at the beginning of 2024 or at the end of 2023).
62. In this context, in the affidavit the plaintiff stated that the defendant was aware that the loan money was involved, but in her testimony the ground was cracked under this claim, and it became more apparent that only the defendant knew that it was a loan agreement.
63. The defendant testified that the defendant was aware that the loan money was in question even before the agreement with the plaintiff was signed, and that he shared it with her and dealt with her transparently. However, in his testimony, the defendant did not point to any data/evidence from which it can be seen that he informed the defendant about the loan.  In fact, this testimony of the defendant was completely general, revolved around and evaded answering the specific question of when he shared the loan with the defendant (see pp.  38, paras.  10-33).
64. When asked whether he had any documentation in which he told the defendant that the plaintiff had lent them money to purchase an apartment, the defendant replied that he had no such documentation and that the conversation was face-to-face (see pp. 47, 28-36, 48 s.  1-26, p.  51, 1-22 of Peru).
65. In this context, he was asked how and when he intended to return the money to his mother, the plaintiff, given that the defendants had been deprived of any financial ability for a number of years, and he replied in a clearly unserious manner as follows: "I intended, thank God, to work, to earn money, to do it, how do you say, in general, to give back to my mother"... I made an effort...  (See p.  41, s.  10 ff., and also pp.  42-43, where the defendant seems to evade answering the question of how he prepared over the years, even when he was married to the defendant and did not think about the divorce, to return the loan money to the plaintiff).
66. So far, the defendant has no proof that he shared the loan agreement with the defendant, while it was expected that the defendant would be a signatory to the agreement that also obligates it to repay the debt, and at least that there would be another registered document, in which it is confirmed that it is aware of the loan agreement and that it agrees to it and is a partner in it.
67. In addition, according to the defendant, all the defendant's family members knew about the loan given by the plaintiff (see pp. 51, 33-36, pp.  52, paras.  1-3).
68. The defendant's testimony indicates that he has no documentation to prove that he told the defendant that these were loan funds given by the plaintiff.
69. With regard to the defendant's claim that "all" of the defendant's family members knew about the loan, he did not ask to summon them to testify and question them on the matter. It is well known that the failure of a party to bring relevant evidence that is within his reach, as well as the failure to testify a relevant witness, without a reasonable explanation, establishes a presumption that if this evidence had been brought at trial, it would have acted against the party (see Civil Appeal 55/89 Koppel (Self-Driving) in the Tax Appeal v.  Telcar Company Ltd., 44(4) 595 (1990)).
70. The defendant testified that she was told by the defendant that the money transferred to the defendants from the plaintiff for the purpose of purchasing the apartment was gift money (see pp. 62, 18-20, pp.  68, 32-35).
71. The defendant claimed that she was never told by the plaintiff or the defendant that it was loan money, and that the first time she was explicitly informed that it was loan money was by the defendant when she wanted to divorce (see pp. 62, paras.  7-10, p.  66, paras.  7-25 of Peru).
72. I found the defendant's testimony reliable in this matter, and that she was of the opinion that the money transferred by the plaintiff to the defendants for the purpose of purchasing the apartment was gift money, and that only at the time of the separation of the parties was she first told that it was loan money.
73. The gap created between the defendants' testimonies is very large in terms of reliability. The defendant did not convince the defendant in the slightest that it was agreed with the defendant that it was loan money and that she was aware of the agreement, and on the other hand, the defendant succeeded in convincing the court that there was no talk of a loan at all and that it was clear to her that it was gift money.
74. In addition to the question of the reliability of the defendants themselves, the reliability of the plaintiff was also undermined, when at first she gave a credible impression, later in her testimony the impression she created was reversed and she gave incorrect testimony, to say the least, regarding the money she transferred to the defendant for the purpose of purchasing the defendant's share in the apartment shared by the defendants (and I will discuss this later).
75. In summary, in light of the above, since it has not been proven that the funds were never discussed with the defendant as loan money, and given that it is proven that she did not know about the meeting of the signing of the agreement, it is a matter of gift money.

The nature of the document signed between the plaintiff and the defendant, including reference to the claim of forgery

76. Initially, it was claimed by the defendant that the loan agreement was forged, although in its summaries it waived this claim, apparently after the testimony of the defendant was heard at the Toledano hearing place. As is well known, a claim that was abandoned by a party in his summaries, even if it was raised earlier in the pleadings, will be considered as a claim that has been abandoned and will not be addressed by the court (see in this regard Civil Appeal Authority 2265/24 April 2000 Marketing and Management in Tax Appeal v.  DBS Satellite Services (1998) in Tax Appeal [Nevo]).  (15.4.2024) [1]
77. The testimony of the attorney for the transfer of the Toledano hearing removed any doubt that it was a forged agreement between the plaintiff and the defendant, and also confirmed that she did indeed draw up the agreement herself and had the plaintiff and the defendant sign the agreement in her office.
78. However, from hearing the testimonies, I got the impression that the plaintiff gave the defendants the money as a gift and as assistance in purchasing an apartment, and it is more likely that she and the defendant made the agreement between them in real time, with the aim of securing the plaintiff's money, from the defendant's share, and not because there was indeed a loan.
79. Support for this conclusion can be found in the plaintiff's conduct in relation to the defendant, after the legal proceedings were opened between him and the defendant, as explained below.
80. I will also mention that the defendant agrees to the lawsuit, and in the accumulation of a series of data, it is more likely that the plaintiff and the defendant joined hands against the defendant, in order to receive from her money that was given to her and the defendant, by the plaintiff as a gift.

Funds transferred by the plaintiff to the defendant for the purpose of purchasing a share in the apartment

81. The plaintiff testified that the debt that is the subject of the agreement (in the total sum of ILS 680,000) applies equally to the defendants (see pp. 28, paras.  7-20 of Peru), i.e., the defendant's debt to the plaintiff is ILS 340,000.
82. As part of the property proceedings between the defendants, it was agreed that the defendant would purchase the defendant's share in the apartment.
83. When the plaintiff was asked how the defendant purchased the defendant's share in the apartment, she replied that he had taken loans and she did not know from whom.
84. The de facto plaintiff was the one who transferred the sum of ILS 300,000 to the defendant for the purchase of her share in the apartment, and when she was asked about the contradiction in her testimony (since she had previously claimed that the defendant had received loans for the purchase and she did not know from whom), she replied that family members had transferred money to her account so that she would transfer them to the defendant (see p. 29 of Prov.  7 ff., at pp.  30, paras.  18-36).
85. Beyond the issue of unreliability raised by the plaintiff, which I discussed earlier, an additional matter must be addressed in the very act of transferring an additional ILS 300,000 from the plaintiff to the defendant. As the plaintiff confirmed in her testimony, while according to her position the two defendants owed her money (see, for example, p.  28 of Peru, paras.  7-20), according to the plaintiff, the defendant owed her ILS 340,000 in respect of which she had a loan agreement with him, he did not repay his debt to her, nor did he deposit this sum in a trust fund despite the court's decision (see the defendant's testimony at p.  45 of Peru, paras.  1-23), and nevertheless, The plaintiff transfers an additional ILS 300,000 to him.  Moreover, while the plaintiff was supposedly concerned with securing the money of the first loan, the money she gave him as a loan for the purpose of purchasing the defendant's share in the apartment, she did not promise a loan agreement with him (see p.  31 of Peru, paras.  23-25).
86. The plaintiff is presumed that if she had intended to give the defendants the funds as a loan, and the defendant remained indebted to her, she would have acted to secure them, for example in the context of a breach of a court decision, when the defendant did not deposit the sum of ILS 340,000 in a trust fund in favor of the defendant, or for example, when he did not repay his debt to her, and yet she gave him an additional ILS 300,000, and did not make an additional loan agreement.
87. From this we learn that le-khatḥila the loan agreement was intended only to repay the defendant only, in the event that the defendants separate, but the defendant was not aware of the agreement at all.
88. These figures constitute an additional indication that the funds transferred from the plaintiff to the defendants in the framework of the agreement are not loan money, but rather a gift.

Are the funds transferred in the agreement a "joint debt" of the defendants?

89. As may be recalled, the plaintiff argued that if her claim that the defendant knew about the agreement or agreed that it was a loan, she should be obligated to pay half of the debt by virtue of it being joint to the defendants who were spouses and by virtue of the Property Relations Law mentioned above.
90. In light of the result I have reached that it should not be declared that these are loan funds, since they are gift funds, in any case there is no need to address the question of the defendant's obligation by virtue of the law, and as a "joint debt".
91. Moreover, the claim before me is a claim for a "declaratory judgment" that states that the loan agreement applies to the defendants. Therefore, even if it is ruled that it is a loan, there is no room to discuss the question of whether it is a "joint debt" in accordance with the resource balancing arrangement in the Property Relations Law.
92. Additional arguments raised by the plaintiff were not discussed in the framework of this judgment, because in any case they do not change its results.

Conclusion

1. In light of the above, I did not find that the funds transferred from the plaintiff to the defendants in the framework of the agreement, and which were used for the purchase of the apartment, are a "loan". The plaintiff has not succeeded in contradicting the "presumption of gift" that applies in our case, and hence the claim should be dismissed.
2. Upon the dismissal of the claim, the plaintiff will bear expenses to the defendant in the sum of ILS 15,000 plus VAT.
3. Since the defendant agreed to the claim and in fact became a plaintiff, I do not make an order for costs in his favor.
4. In order to increase the database of family court rulings, the judgment will be published by omitting any identifying details.

Granted today, 14 Kislev 5786, 04 December 2025, in the absence of the parties.