The giver, on the other hand, has only one way to claim the profits on the "transaction", and that is according to the rate stated in the equalization agreement, for the reason that the giver is not entitled to withdraw from the equalization agreement and demand an oath from the recipient specifically, and moreover according to the rule in Jewish law one must refrain from taking an oath (see the rule in Responsa Tzitz Eliezer, part 8, paragraph 8 [9])."
I will note that in that case, the court further ruled that the interest included in the transaction documents can be regarded as an equivalence agreement. Subsequently, the court ruled that on the one hand, it did not accept the bank's arguments that by signing the equalization agreement (i.e., the documents that served as the basis for the claim) the debtor waived his right to swear, but on the other hand, the court agreed with the bank's argument that:
"This court is not the place where the debtor can exercise his right to take an oath, and in any event this court must rely on evidence, like any other evidence, that the oath was performed in the manner and manner specified in the 'transaction' deed and in accordance with Jewish law - in order for the defendant to have a defense against the bank's claim."
In light of this, the court rejected the borrowers' claims and ordered them to repay the loan in accordance with the interest terms specified therein.
- From the judgment in the Tishler case, it is possible to extract a legal rule according to which - taking into account that there are two possibilities - one is to collect interest and, more precisely, equivalence fees (which can also be collected at percentages that will be determined in advance) and the second - to take a severe oath, in which case there will be an obligation only to pay dividends - then a decision on the question of which of the options will apply depends on the interpretation of the agreement. In other words, where there is a clause that relates to a transaction permit, the question will be examined as a rule whether the intention in this case was an investment transaction - in which case the giver is entitled only to a percentage of the profit and only to the extent that the business makes a profit or if it is a loan transaction - in which the giver is entitled to an equity fee that can also be collected at percentages that will be determined in advance. Support for this rule is found in the Supreme Court's ruling inCivil Appeal Authority 2385/12 David Kalantrov v. Amram Cohen (December 31, 2012) - in the same matter it was argued that checks were transferred to respondent 1 in the framework of an investment contract drawn up in accordance with the 'transaction permit'. The Supreme Court examined the argument and held, in paragraph 6 of the judgment:
"... Indeed, the question of the nature of a 'transaction permit' was discussed in court rulings, and it was held that we are dealing with a contract for all intents and purposes that is examined according to the intentions of the parties (H.M. 5317/86 (Tel Aviv) Mizrahi Bank v. Tishler, [published in Nevo] P.M. Tashmash Retrial (B), paragraph 4 of the judgment, of September 28, 1987). In other words, there may be cases in which a contract bearing the title of 'Transaction Permit' will be defined as an investment contract, and there may be cases in which such a contract will be defined as a regular loan contract - all in accordance with the intention of the parties, as implied by the language of the contract and the circumstances of the matter, as stipulated in section 25 of the Contracts (General Part) Law, 5733-1973. Therefore, a decision in the case before me derives from the facts of the specific case and not from a fundamental legal question." [My emphasis is L.B.]