It has also been noted in the literature that today, and since the enactment of the The Contracts Law (General Part), 5733-1973 (hereinafter: The Contracts Law), to a large extent, the phlegm of the aforementioned distinction. This is because the seizure, after the enactment of the The Contracts Lawis that the laws of estoppel should be seen as an integral part of the duty of good faith that is enshrined in In Sections 12 and39 to the Contracts Law (see, for example: the Tzuriano, p. 685; Interest Ezra, at p. 101; Friedman & Cohen Contracts I, p. 628); It is clear that a breach of the duty of good faith may serve as an independent source for establishing a cause of action (see: Shalev and Mach, at p. 91).
And indeed, as my colleague Justice pointed out D. Barak-Erez, in the judgment in the additional hearing on the matter Nachmani The judge noted Z. A. Tal, which is one of the majority justices, that: "The man is silenced from retracting it, by virtue of the principle of reasonable reliance, when the woman has changed her situation for the worse, a change that is irreversible. [...] Estoppel by virtue of reliance is no longer only a defense claim, but also constitutes a cause of action and enforcement" (Name, p. 699; Emphasis added: 10:20; See also the judge's opinion D. Dorner, at pp. 721-722, which did not use the doctrine of estoppel as a basis for its decision, but recognized its possible applicability in the circumstances of the case).
Thus, it emerges from the aforesaid that although the doctrine of estoppel due to silence is intended, as a rule, to serve as a defense argument, there is no impediment in principle to making offensive use of it, in the appropriate circumstances. Therefore, I am of the opinion that the first difficulty that my colleague the judge faced G. Kanfi-Steinitz There is no justification for the dismissal of the appeal in this case, and in fact it seems that none of my colleagues are of the opinion otherwise.
- If so, it seems that the second difficulty that my colleague Justice points out G. Kanfi-Steinitz In her opinion - the difficulty in recognizing the existence of a duty of disclosure that the respondent would have had to disclose to the appellant his state of mind at the time of sperm donation and egg fertilization - is the main difficulty facing the appellant in our case.
Before I address this difficulty, I will note that in my opinion, it is possible to wonder whether the appellant's argument for the applicability of estoppel in our case should indeed be viewed as a claim of silence due to silence, and not as a claim of silence because of a "regular" representation. This is because, as appears from the description of the above, the respondent's conduct was not limited to not disclosing his state of mind to the appellant, but also to an active action which is to take the sperm from his body, deliver it to the hospital and give consent to use it. All of these are active actions that establish a representation of agreement to the entire process. However, since the trial courts, and in their wake my colleagues have analyzed the case in question from the perspective of silence due to silence, I will also take this path.
- As I noted above, a party claiming the applicability of estoppel due to silence must vote for the existence of a duty of disclosure that was imposed on the other party and violated by it (Friedman and Cohen Contracts A, at p. 92).
The question of whether, as a rule, legal disclosure obligations should be recognized in the relationship between spouses is a complex question that many pens have broken in an attempt to provide an answer (see: Civil Appeal 643/83 Domb v. Domb, IsrSC 40(3) 792 (1986) (hereinafter: The Domb Matter); Civil Appeal 1581/92 Valentin v. Valentin, IsrSC 49(3) 441 (1995) (hereinafter: The Valentin Affair); In Tax Appeal 7939/17 Anonymous vs. Anonymous [Nevo] (9.11.2017) (hereinafter: In a Tax Appeal 7939/17); In Tax Appeal 5827/19 Anonymous vs. Anonymous [Nevo] (16.8.2021); In a Tax Appeal 4181/22 Anonymous vs. Anonymous [Nevo] (19.5.2024) (hereinafter: In a Tax Appeal 4181/22); Yael Willner and Lior Mashali Shlomai "Disclosure and Concealment in Law: The Duty of Legal Disclosure and Conflicting InterestsM" The Rivlin Book 1021, 1033-1036 (Aharon Barak, Yitzhak Amit, Ariel Porat, Sharon Zenzifer-Helfman and Guy Shani 2025) (hereinafter: Willner and Shlomay's wishes); Binyamin Shmueli "Between Tort Law and Religious and Civil Family Law: The Different Circles of Family Tort Claims" The Rivlin Book 771, 781-795 (Aharon Barak, Yitzhak Amit, Ariel Porat, Sharon Zenzifer-Helfman, and Guy Shani 2025); Dawn Lifshitz "Regulating the Spousal Contract in Law The Israeli: Preliminary Outline" The Campus of Law D 271, 336-337 (2004) (hereinafter: Lifshitz);Michelle Oberman, Sex, Lies, and the Duty to Disclose, 47 Ariz. L. Rev. 871 (2005)).