The operative result was that the case was returned to the District Court, "that he will allow the parties to bring before him their arguments regarding the appointment of a receiver by him and will give his decision accordingly" (Name, at p. 624, between the letters B-C).
Constitutional Aspects
- After the legislation Basic Law: Human Dignity and Liberty, the Supreme Court formulated a ruling according to which the considerations for granting temporary relief must be re-examined, due to the need to take into account the property right of the The Defendant, which is protected, at the constitutional level, In the section 3 of the said Basic Law, which states that "There is no harm to a person's property".
- This ruling changed the balance between the parties, i.e., the plaintiff requesting the temporary injunction, and the defendant who is concerned about a claim for his property, in the direction of increasing the burden of proof on the plaintiff.
In addition, it was held that the plaintiff must convince the court that the infringement of the defendant's property meets the requirements of proportionality, which are expressed in section 8 of the Basic Law: Human Dignity and Liberty (which is the limitation clause).
The Supreme Court was aware that the Basic Law does not violate the existing legislation (Section 10 of the Basic Law: Human Dignity and Liberty, entitled "Preservation of the Laws", states that "this Basic Law does not prejudice the validity of a law that existed prior to the commencement of the Basic Law"). However, the Supreme Court has ruled more than once that the existing legislation should also be interpreted in the spirit of the provisions of the Basic Law: Human Dignity and Liberty (see, for example, the two judgments in the Ghanimat case: Miscellaneous Criminal Applications 537/95 Imad Ghanimat v. State of Israel, IsrSC 49(3) 355; Additional Criminal Hearing 2316/95 Imad Ghanimat v. State of Israel, IsrSC 49(4) 589).
It is customary to cite in this regard, as references, the two judgments of the Supreme Court: Miscellaneous Civil Applications 4459/94 Adv. Emanuel Slomonov v. Moshe Sharabani, IsrSC 49(3) 47, a decision given by Justice Dalia Dorner (hereinafter - " the Salmonov Case"); Civil Appeal Authority 8420/96 Dan Margaliot v. Mishkan Bank Hapoalim Mortgages Ltd., IsrSC 51(3) 789, by the Vice-President, Shlomo Levin, according to whom President Aharon Barak and the judge - as he was then called - Theodor Or (hereinafter - the "Margaliot Case"), agreed). This last judgment, which was given 11 years ago (on July 31, 1997)), is mentioned, according to the Nevo website, in 423 judgments and decisions.