Therefore, there is no bearing on the fact that the formal assignment of rights was carried out at a later date, and the consent applies to all the components of the claim.
- In view of these determinations, there is no claim of limitation in relation to the creditors' claim on the procedural level.
Delay
- In order to accept a claim of delay, the defendant must prove two main conditions: first, that the delay in filing the claim expresses the plaintiff's explicit waiver of his right; second, that as a result of the delay, the defendant's situation deteriorated. Sometimes a third condition relating to the plaintiff's lack of good faith is also examined (see the appeal decision, at para. 76).
- In the case of the company, it was held that the mere delay in filing does not indicate a waiver, and a clear representation of waiver of the right is required. In addition, in the decision of the appeal, it was determined that the liquidators' objection to the addition of Kost as a defendant in another proceeding did not create a "representation of waiver", and that the liquidators clarified in that proceeding that the causes of action against Kost were still being examined, and that a few months later they had already approached it in a draft statement of claim. Therefore, no clear representation of waiver or forgiveness on the part of the joints has been proven. Thus the language of the appeal decision (para. 77):
"With regard to the first condition - which concerns the plaintiff's waiver of his right, it was held that the very delay in filing the claim does not in itself attest to such a waiver, but rather requires 'a clear representation on the part of the plaintiff regarding his waiver or waiver of the right of claim given to him' (Talmud Torah, at p. 446). It was also clarified that "a claim regarding a waiver or waiver of a right of claim requires a substantial level of proof by the person claiming it" (ibid.).
In its ruling, the trial court ruled that the liquidators' objection to Kost's addition to the lawsuit against the shareholders "created a reasonable representation that the liquidators waived their claim against [e]" (paragraph 33 of the judgment). I cannot agree with this determination. First, Kost did not claim at all in the motion for summary dismissal that the liquidators' objection to the motion for joinder did in fact lead it to the conclusion that the liquidators waived the right to sue against it, and in any case it has not yet proven this.