I will note that the Honorable Justice Dorner concurred with the opinion of the Honorable Justice Rubinstein on the same matter, but emphasized that in her approach, a distinction must be made with regard to the restrictions imposed on the realization of a mortgage - between the protection provided in section 33 of the Tenant Protection Law, and the provision in section 38(a) of the Execution Law. Thus, it was emphasized that section 33 of the Tenant Protection Law protects the debtor's residence even if its value exceeds ten times that of reasonable housing, and even if the object of the mortgage is a luxury apartment, whereas section 38(a) of the Execution Law prevents the debtor, who was left - after the realization of the mortgage - homeless, to be thrown into the street. It was held that in light of this, the first provision should be interpreted narrowly and precisely, but the provision in the Writ of Execution Law - which guarantees that the obligor has the minimum subsistence required for the preservation of his right to dignity - should be interpreted, as far as possible, extensively.
- From the general to the specific - after examining the circumstances in the present case, in view of the indications as determined in the framework of the case law, I am satisfied that in the circumstances as proven before me, the plaintiff's arguments according to which the loan agreement should be cancelled, alternatively that the mortgage that was registered on the plaintiff's rights in her apartment should be canceled, and alternatively, that the plaintiff's waiver of the protection under section 31 of the Tenant Protection Law or the right to temporary housing in accordance with the provisions of section 31 should not be given effect 38 of the Execution Law.
- This determination of mine is based, first and foremost, on the basis of which there is no dispute - the plaintiff signed the documents of the loan agreement as well as the appendices that were signed subsequently thereof. In addition, the plaintiff first signed the documents of the loan agreement in which it was explicitly stated that the plaintiff was a borrower. In a parenthetical article and with regard to the definition of the plaintiff as a borrower in the loan agreement, I will first note that the definition of the plaintiff as such appears in the title of the loan agreement, and in this regard I did not find any substance in the plaintiff's argument and accordingly since it was written in the title under the names of the borrowers that they are "all together and separately and each alone in a mutual guarantee - hereinafter: "the borrower" - in order to change the status of the plaintiff as a lender to a guarantor - but it is absolutely clear from this inscription that all the names mentioned above are borrowers and that the mutual guarantee is between them. In addition, the plaintiff's definition of a borrower also appears on each and every page of the loan agreement, in which the plaintiff's signature appears above the inscription "borrower 2". Without derogating from the aforesaid, I will emphasize - as I have already noted in paragraph 82 above of the judgment - that on the face of it, there is no reason to decide the question of whether the plaintiff is a guarantor or a borrower - taking into account the fact that on the face of it, according to the case law, the same law applies with respect to both statuses, and in addition, since the plaintiff herself did not specify what increased duties would apply in the context of her, had her status been a guarantor with a difference from a lender.
The plaintiff also signed, at the time of signing the loan agreement, in which she is defined as a borrower, a mortgage deed - which holds only two pages with a clear and large heading, according to which it is a mortgage deed. The plaintiff also signed a document of terms accompanying the mortgage deed, which - as detailed above in paragraph 12 above of the judgment - includes details of the protections available to the plaintiff in accordance with the Consumer Protection Law and temporary housing in accordance with the provisions of section 83 of the Execution Law. As to this last detail, it will be clarified at this stage that there is no dispute that it meets the technical requirement for disclosure - since it details both the defenses, the clause in which the defenses were determined, and the significance deriving from the cancellation of the defenses.