In light of all this, it was held that:
"Where we are dealing with a non-bank lender who drafts the agreement and is in a preferential bargaining position, he may be obligated to disclose to the borrower or the guarantor a full and explicit disclosure that he has a right to protect the residence, and that the mortgage entails a waiver of this right. This information, needless to say, is in the hands of the lender, and he did not bother to obtain it. The information may not be in the hands of the borrower, but it is certainly very important to him. After all, as we detailed above, we are dealing with a fundamental right of the individual and a very important social interest. There is no reason to justify that the lender should benefit from the borrower's lack of awareness and lack of understanding (cf. A.T. Kronman “Mistake, Disclosure, Information, and the Law of Contracts” [22]). If it is possible to grant the loan without relinquishing the right to a temporary arrangement - even at the cost of deteriorating the other terms of the loan (such as increasing the interest rate) - this option must be presented to the borrower or the guarantor. If this option is not on the agenda, it is still necessary to ensure that the meaning of the waiver is clear and visible, and that the choice to give up is informed and explicit. This was the duty of the appellant in the case before us. The District Court held, and this determination stands, that this obligation - which derives in our case from section 38 itself and from the duties set forth in the Contracts Law - did not comply."
Alongside all this, the Supreme Court added and emphasized, in paragraph 15 of the judgment of the Honorable Justice Rubinstein, as follows:
"It is certain that there may be cases in which the scope of the duty of disclosure will change, for example, where the borrower is assisted by legal advice when he places his apartment as a guarantee for the charge, or where there is no economic or other advantage to the lender over the borrower. As stated, this is not the case before us." [My emphasis is L.B.]