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The fact that the parties have changed their positions constitutes, for the most part, a basis for denying the applicability of the estoppel rule, since a proceeding filed by a certain person against an anonymous person does not, in the usual case, exhaust the cause of action of an anonymous person against a certain person."
- Alongside this rule, two exceptions were noted in the matter of the flying carpet: the first is that its application does not prevent the existence of the estoppels that were determined in the first proceeding (See Also:Civil Appeal 3294/08 GOLDHAR CORPORATE FINANCE LTD V. S.A. KLEPIERRE (Nevo, 6.9.2010); Civil Appeal Authority 2237/06 Bank Hapoalim in a Tax Appeal Weinstein v. (Nevo, 8.3.2009)). The second is an exception known as a "defensive estoppel." "'Mute the protection' will arise only in cases where the late claim is the "opposite" of the preliminary claim, in the sense that the acceptance of the late claim nullifies the early judgment. In this regard, the mere fact that the result of the late claim is liable to offset the result of the earlier claim is not sufficient.(See: paragraph 28 of the judgment in the case of the flying carpet). Thus, for example, and in the example given in the framework of the Flying Carpet, if in the first lawsuit a plaintiff sought relief of removal of his hand and it was given to him, the defendant in the first proceeding cannot file a second proceeding in which he demands to be declared the owner, since the second proceeding nullifies the first proceeding. On the other hand, a bank that claims a mandatory balance in the first proceeding and is acquitted, the defendant is not subsequently prevented from filing a tort claim against the bank for giving it negligent advice in investing in shares. It is true that the two claims offset each other, but they are not contradictory and can exist side by side.
From the general to the individual
- When I came to apply the aforementioned rules to our case, I came to the conclusion that there is no estoppel of cause, taking into account that in the proceeding before us, the roles of the parties were reversed. In our case, none of the exceptions enumerated in the Flying Carpet case exist for the application of the rule of estoppel of cause, which blocks Hajj's claim, while the present claim does not nullify the determinations in the first claim.
First, Haj was a defendant in the previous lawsuit, and did not seek any remedy to enforce the agreement, neither fully nor approximately. The issue of the fulfillment of the agreement was not discussed at all in the District Court and was not decided in the first proceeding in the framework of the appeal to the Supreme Court. Therefore, it would be unjust to deny Haj the possibility of filing a lawsuit for enforcement of the agreement, the first time it is filed, only because he was a party to the proceeding that sought to declare the agreement annulled by some of the defendants here, on the grounds that a certain part of them could not be sold.
- Second, the Supreme Court, who gave the judgment in the previous proceeding, left the door open for Hajj to file a lawsuit to enforce the agreement in the near future. The reason he refrains from doing so himself lies in this, that not all the necessary parties were parties to the proceeding, and in between'Rice passed away, and defendant No. 1 did not respond to the appeal. Therefore, the Supreme Court ruled that:
"The aforesaid does not detract from any future proceeding in the relationship between the appellant and Jerris's estate, and the aforesaid does not detract from the right of any of the parties to file a claim regarding the set of rights in the plot, while joining all the rights holders by virtue of previous transactions made in the plot."