Moreover, the plaintiff further argued that in contrast to the funds that she took as a loan for her use - and as to this, the plaintiff refers only to the funds that were used to cover the mortgage to Bank Leumi - in any case she should be allowed to offset the sums that were paid on account of the loan. The problem is that in the framework of her testimony, the plaintiff did not know who paid for the loan (see her testimony on page 88), and moreover, from the evidence presented by the defendant, it appears that it was the Builders and Protected Company that bore the payments for the loan, and that these payments were in any case offset against the balance of the settlement of the loan due to be repaid (this claim was supported by the defendant in her affidavits as well as in the bookkeeping card that was attached as Appendix 8 to these affidavits). In these circumstances, it is not clear how the plaintiff - who denies the portion of the loan that was taken by the Builders and Protected Company - claims in the same breath that she should be allowed to offset the sums paid by this company. In a parenthetical article, I will note that in the testimony of this plaintiff's husband he claimed that Savyoni paid for the loan repayments (see his testimony on page 140, lines 1-8), a testimony that contradicts the documents presented by the defendant, but in any event, it can negate the plaintiff's claim that she is entitled to offset these sums against the loan she took to cover the mortgage.
- In the margins of this chapter, I find it necessary to relate specifically to the plaintiff's claim regarding her waiver of the protections set forth in section 31 of the Tenant Protection Law and in section 83 of the Execution Law. As to these, I will begin by noting that although the mortgage special conditions document stipulates in section 24 that the mortgage waives its right to temporary housing under section 83 of the Execution Law, it is evident from the hearing that was held before the head of the Execution Office, which was detailed in paragraph 22 above of the judgment, before the head of the Execution Office a hearing was held before the head of the Execution Office on the issue of alternative housing for the plaintiff and her family members. In these circumstances, it is only that the defendant did not insist on this waiver of the plaintiff. Moreover, as to the plaintiff's waiver of the defense under section 31 of the Tenant Protection Law - as it emerges from the provisions of section 24 of the special conditions for the mortgage deed (which were brought in full above in section 12 of the judgment) - the defendant fulfilled the duty of technical disclosure of this defense when it detailed the protection clause, both its content and the significance deriving from its waiver. Moreover, all of my determinations according to which the plaintiff understood the nature of the transaction in which she is engaged and the risks involved in it, and moreover, these were explained to her - in any case also apply to the issue of waiver of the said protection, which is expressly included in the special mortgage terMs.
- Thus, it was proven that the plaintiff knew and understood the significance of the documents she signed, the obligations and risks that she assumed, more than necessary, it was proven even though the plaintiff was explained the documents she signed and in practice the plaintiff did not bear the burden of proving the nullity of her signature on the documents she signed in view of the breach of any of the obligations that apply to the defendant or because of her misrepresentation, or because she was misrepresented or due to the defendant's negligence. Oppression or coercion. In these circumstances, I determine that the plaintiff is bound by the agreement she signed, its appendices, and also by the pledge of her rights in the apartment in accordance with this agreement and by the mortgage deeds that she signed.
Is the existence of a clause regarding a "transaction permit" sufficient to change the obligations that apply to the plaintiff in accordance with the loan agreement?
- The plaintiff's alternative or supplementary argument is that even to the extent that it is bound by the provisions of the loan agreement and its signature should not be revoked - in any case among the terms of this agreement is a clause that applies to the loan the conditions of a "transaction permit". According to the plaintiff, the significance deriving from the application of a "transaction permit" to the terms of the agreement in question is that the plaintiff is obligated to return only the principal of the funds that were transferred to her and not the interest in respect thereof.
After examining this argument of the plaintiff, I am satisfied that it should be rejected.
- My decision is based first and foremost on the plaintiff's failure to prove the halakhic significance deriving from the provisions of the "heter transaction" in general and in the case at hand in particular. This is because the plaintiff did not present evidence to support her claim.
Thus, the plaintiff presented only two pieces of evidence in support of her claims - one, an affidavit by Rabbi Yaakov Bronfman, and the other - a brief reference to the subject in her husband's affidavit.