As is well known, recognition of the existence of a duty of disclosure between parties is derived from the nature of the relationship between them and the concrete circumstances of the case (see, for example: Civil Appeal 2274/21 Mor v. Elad Israel Residences Ltd., paragraph 80 of the judge's judgment A. Stein [Nevo] (1.1.2023); Daniel Friedman and Nili Cohen Contracts Volume 2 (2nd Edition 2020) (hereinafter: Friedman & Cohen Contracts II)). One of the clearest cases in which case law has tended to recognize the existence of a duty of disclosure is where there is a relationship of trust between the parties (Civil Appeal 5893/91 Tefahot Mortgage Bank of Israel in an appeal Taxes N. SabahIsrSC 48(2) 573, 597 (1994); Friedman & Cohen Contracts I, at p. 686; Friedman and Cohen, Contracts II, at p. 204). Indeed, in the case law of this Court it was emphasized that the relationship between spouses is based on a special relationship of trust, which establishes a legitimate expectation of fairness, transparency and honesty (see: Case: Valentine, at p. 454; In a Tax Appeal 5827/19, paragraph 2 of the judge's opinion v. Solberg). Therefore, it is reasonable to assume that it is precisely the relationship of trust that prevails between spouses that will justify the recognition of an increased duty of trust between them.
Indeed, when an issue related to relations was on the agenda The Economists between the spouses, case law recognized the existence of a duty of disclosure between them (see, for example: Domb, at pp. 795-796; In a Tax Appeal 5827/19, paragraphs 46-47 of the judge's judgment Y. Willner; In a Tax Appeal 4507/22 Anonymous vs. Anonymous, paragraph 22 of the judge's judgment D. Barak-Erez, in a minority opinion, but not on this matter [Nevo] (14.12.2022); See also: Lifshitz, at pp. 336-338).
- On the other hand, in cases where it was claimed that one of the spouses was obligated to disclose a fact relating to the intimate or emotional relationship between the spouses, the case law refused to recognize the existence of a duty to disclose. Thus, in the judgment inIn a Tax Appeal 5827/19 This court ruled that the duty of legal disclosure between spouses prior to marriage regarding sexual orientation or religious belief should not be recognized. Similarly, in the judgment inIn a Tax Appeal 4181/22 It was held that the plaintiff's right to monetary compensation should not be recognized on the basis of his claim that his wife had misrepresented to him that he was the biological father of the minor born during their marriage.
In explaining why the duty of disclosure should not be recognized in relation to the intimate or emotional relationship between the spouses, this court argued that there is no room for "judging" the relationship between spouses, by creating a legal obligation (as opposed to a moral or moral obligation) to disclose matters of the heart (see: In a Tax Appeal 4181/22, paragraph 24 of the judge's judgment Y. Willner; Interest Valentine, at pp. 454-455). Thus, in the judgment inIn a Tax Appeal 5827/19, the judge noted Y. Willner Because: