Copied from Nevo
Burden of proof
- As determined in other Municipality Applications 78/04 HaMagen Insurance Company in Tax Appeal v. Shalom Gershon Moving Ltd., published in Nevo, dated October 6, 2006):
"11. The burden of proof is used to describe two different concepts. The first is the burden of persuasion, and the second is the burden of bringing evidence. The burden of persuasion expresses the main duty imposed on a party to prove his claims against his opponent to the extent of proof required in a civil proceeding, i.e., the balance of probabilities. This burden is usually fixed, and does not pass between the parties during the trial. The burden of presenting evidence is the secondary duty that accompanies the burden of persuasion. As far as the party bearing the burden of persuasion is concerned, the obligation means that he must bring sufficient evidence in order to meet the burden, whereas in relation to his opponent, it means that he must bring evidence that will omit the basis from under the evidence brought against him. This burden is dynamic, and may be transferred from one litigant to another (in this regard, see: Yaakov Kedmi on the Evidence (Part III, 2003) 1505-1506 (Kedmi, Part III); Civil Appeal 6160/99 Druckman v. Laniado Hospital, IsrSC 55(3) 117, 124 (2001)).
- It should be emphasized that the question of which of the parties has the burden of persuasion is of importance only where none of the parties presented evidence or where at the end of the evaluation of the totality of the evidence, the court determines that the scales are hostile, i.e., a case of "reasonable doubt" or an "evidentiary tie" (Eliyahu Harnon, Law of Evidence, Part One (1979) 188 (hereinafter: Harnon)). In this case, the burden of persuasion is decisive, so that the court rules against the party on which the burden is born. On the other hand, if, after evaluating the totality of the evidence, the court reaches the conclusion that one of the parties has evidentiary preference over the other, so that he has succeeded in persuading the justification of his cause according to the balance of probabilities, the question of who has the burden of persuasion is of no significance (Civil Appeal 7905/98 Aerocon C.C. v. Hawk Aviation Ltd., IsrSC 55(4) 387, 397 (2001); Civil Appeal 5373/02 Navon v. Clalit Health Fund, IsrSC 57(5) 35, 45-46 (2003)).
- The question on whom the burden of persuasion rests is determined by the substantive law. The burden of persuasion to prove a particular claim rests on the party whose argument advances his case in the trial, when the basic rule is "he who takes out from his friend - the proof is upon him" (Kedmi, Part Three, at pp. 1508-1509). The plaintiff has the burden of proving all the elements of the cause of action, both positive and negative, while the defendant has the burden of proving all the elements of the defense argument that he raises (ibid., at p. 1512). As a rule, at the beginning of the trial, the burden of proof rests on the person who bears the burden of persuasion (Civil Appeal Authority 1436/90 Giora Arad, Investment Management and Services Company in Tax Appeal v. Value Added Tax Administration, IsrSC 46(5) 101, 105 (1992)). .."
- In the circumstances of the case before us, the burden of proof is on the plaintiff to prove, inter alia, his claim that the agreement of 01.01.2020 is a binding agreement between the parties in accordance with contract law. To the extent that the plaintiff meets this burden, I will address the question of whether the plaintiff is entitled to the remedies claimed by him in his claim. To the extent that the plaintiff does not meet the burden imposed on him, I will examine the plaintiff's claim that he was not paid the full compensation for the three months he allegedly worked (the months of March, April, and December 2020), as well as the plaintiff's claim that he was entitled to compensation for mental anguish.
The Normative Infrastructure - Contract Law and the Partnerships Ordinance
- In examining whether a binding agreement between the parties has been perfected, we must consider the Contracts Law (General Part) 5733-1973 (hereinafter: the "Contracts Law").
Section 1 of the Contracts Law states that a contract is concluded by way of offer and acceptance.