In the present case, the plaintiff does not dispute that such disclosure of the technical details of the loan was made. With regard to this, and for the sake of completeness, I will note that support for this can be found - inter alia, in detail above in paragraph 17 of this judgment and in a document that was attached by the plaintiff herself to the statement of claim on her behalf (starting at page 83 of the statement of claim).
- However, according to the plaintiff, in fulfilling the duty of disclosure the defendant did not fulfill its legal obligation, since in addition to this, the defendant had a duty of explanation, in which case she should have explained to the plaintiff the significance of the transaction in which she entered into an agreement with her and the risks involved in it. These include, and in particular, the risk of losing the plaintiff's residential apartment, as well as the provisions relating to the plaintiff's waiver of both her right as a protected tenant under section 31 of the Tenant Protection Law and her right to temporary housing in accordance with the provisions of section 83 of the Writ of Execution Law. The defendant, as detailed above, denies the existence of an explanatory duty as claimed by the plaintiff and in any event, according to its claim, it fulfilled this duty when it referred the plaintiff to sign the agreement and the accompanying documents (including the mortgage notes and its accompanying terms) before an attorney on its behalf, who confirmed that he explained to the plaintiff all the details and essence of the transaction.
After examining these arguments of the parties, I find it acceptable to accept the plaintiff's arguments according to which the defendant is generally obligated to explain, but in my opinion in the circumstances of the present case, I am of the opinion that the defendant fulfilled the duty of explanation imposed on her, and moreover, in any case I am persuaded that the plaintiff had in fact knowledge of the nature of the transaction in which she entered into it, and yes, as to its risks, and at least she is prevented from claiming the absence of such knowledge.
- First, with regard to the very existence of an explanatory duty - in the framework of the case law, it was determined that detailed disclosure and explanation duties apply to banking corporations, both vis-à-vis their customers, guarantors of loans given by them, and guarantors of property for the benefit of another's obligation (to whom the same law applies to guarantors). Given the application of similar duties both towards the bank's customers (i.e., the borrowers) and towards guarantors and mortgages - I will preface by noting that the plaintiff has devoted a scope to the question of whether her status is that of a guarantor or that of a borrower. However, given the similar duties imposed on the borrower and the guarantor, I will already note that on the face of it, my approach does not have any significance in deciding on this issue, and at least from a normative point of view, a decision on this issue does not have a significant impact on the review that will be conducted below.
Thus other Municipality Applications 11120/07 Dina Simchoni v. Bank Hapoalim in Tax Appeal (December 28, 2009), in paragraph 25 of the judgment of the Honorable Justice Rubinstein, it was held that: