I am of the opinion that from the Supreme Court's ruling in the Martin case , as cited above, it is possible to extract the rule according to which a distinction must be made between an explanation as to the nature of the transaction and the risks involved in it - an explanation on the face of which the bank is obligated to rely on the approval of an attorney, and the existence of disclosure obligations with respect to material details that are within the bank's knowledge - in the Martin case - the amount of the debt and which are not known to the approving lawyer - that the bank will not discharge its obligation to the extent that it does not disclose on its own initiative to the borrower. As explained above, the Supreme Court further ruled in the same matter that to the extent that the mortgagee has knowledge of the amount of this debt, the pledge deed will remain valid and the absence of active disclosure on the part of the bank will not negate it. I note that similarly, it was held inCivil Case (Hai District) 21069-10-20 Meir Vardi v. Quality Credit Fund Partnership (July 28, 2022) - that even in cases where the lender can rely on the lawyer's explanations regarding the legal nature of the document, the explanation given by a lawyer does not diminish the disclosure obligation that applies to the lender with respect to the loan data detailed in section 3 of the Fair Credit Law - data that is in the hands of the lender and not in the hands of the lawyer. In that case, too, the court separated between explanations regarding the legal nature of the document and the risks involved therein - in the context of which the lender is entitled to rely on the approval of an attorney, and specific disclosure obligations imposed on the borrower with respect to data that is in his knowledge - such as the loan data - in which case the duty of disclosure applies directly to the lender and he does not fulfill his duty with respect to disclosure with the approval of an external attorney.
- It should also be noted that in the Martin case, it was held that since the bank breached the duty of disclosure as to the amount of the debt as of the date the pledge was signed, the pledge deed would not remain in force. This determination was qualified by the Supreme Court with respect to one debt component - part of the loan that was taken from the bank that was used to cover a previous mortgage that the respondent knew about. As for this part, the Supreme Court ruled in paragraph 49 of the judgment: "In my opinion, the respondent should not be exempted from that part of the mortgage, which is the amount that was transferred to Union Bank for the repayment of a previous mortgage, of which the respondent knew. Ignoring the mortgage regime altogether means that the bank will not be able to repay the debt to it that was created as a result of the repayment of a debt that the couple had at Union Bank. This result is equivalent to the enrichment of the respondent and not to the trial of the respondent at the bank's expense, since the respondent is exempt from repayment of the mortgage on the one hand, and the land is not encumbered to the appellant on the other hand."
- A similar issue was addressed by the Supreme Court in the Gilman case (Civil Appeal 8533/06 Nurit Gilman v. Hapoalim American Israeli in a Tax Appeal (August 5, 2008) (hereinafter and hereinafter: "the Gilman case"), in the same case, the Respondent argued that the Bank was not discharging its obligations by virtue of the Contracts Law, by virtue of Section 12 of the Pledge Law, 5727-1967, and by virtue of the Guarantee Law, 5727-1967 - Except after he has taken care to inform and disclose all the data and details to the tenant, and this is done directly. In general, it was argued that the bank does not discharge these obligations, relying on the confirmation of the signing of the mortgage deed and the circumstances of the signature, by an attorney on behalf of the mortgagee. This argument was rejected by the Supreme Court, which began by mentioning the presumption that a person's signature on a document constitutes a testimony that he understood its contents and gave his consent to what was stated therein. It was held that: "This presumption is strengthened when we are dealing with material documents such as pledge deeds and mortgages" (ibid. in paragraph 5 of the judgment). The Supreme Court further ruled that: "The applicant to contradict this presumption has the burden of proof and persuasion with positive evidence and at the level of probability of a probable possibility" (ibid.).
In that matter, it was held that not only did the appellant not contradict the said presumption, but that according to the findings of the fact, the appellant was well aware of the contents of the lien document, its meaning and its possible consequences. Thus, it was stated that: