"The infringement of the right of property by appointing a receiver is to a great extent more severe than the infringement of this right of foreclosure. In addition, in the case before us, the specific weight of the applicants' interest even increased in light of the counterclaim they filed against the respondents. All the more so there was no room for the appointment of a receiver in the case before us."
- Judge Yaakov Turkel, an analyst in his judgment (The Telepaz, Name, pp. 558-559) the development of the halakha in relation to the legal nature and content of receivership, beginning with the Thorg, from 1949, until the last case law cited above, including: Good name. His conclusion differs from that of Justice Dorner, and can be summarized in one of his words, which has the force of good effect, with the necessary changes, for our parasha as well.
He writes as follows (ibid., p. 559, opposite the letter Z - p. 560, opposite the letter A):
"Hence, it is not easy for the court to appoint a temporary receiver before the judgment is rendered, but sometimes there will be no choice but to do so. Thus, for example, in cases in which other temporary remedies have not achieved their purpose. Indeed, the appointment of a receiver over a defendant's property violates his property right, but the defendant's property right is confronted by the plaintiff's property right, which is also worthy of protection. Indeed, the appointment of a receiver is not in itself a disproportionate remedy, and each case must be examined according to its circumstances, and if the balance between the conflicting rights of the plaintiff and the defendant finds that the infringement of the defendant's property right is proportionate, it will be possible to appoint a receiver for his assets. In light of this, we must examine the affair before us."
In a detailed examination of the facts, Justice Turkel reaches the conclusion that the appointment of a temporary receiver is indeed justified; In any event, Judge Turkel concludes his dissenting judgment by saying that there is no room to intervene in the judgment of the District Court, which approved the Registrar's decision to appoint a temporary receiver, as aforesaid.
- The Third Judge in the TelepazEdmond Levy agrees with Justice Dorner's position, emphasizing that from a factual point of view, the respondents' entitlement to the funds they claim is unclear. Therefore, the appointment of a temporary receiver is liable to endanger the applicants' business, and if the lawsuit is rejected, they will face a broken trough, because the damage to their businesses - if a temporary receiver is indeed appointed, who will actually operate the gas station - is irreversible damage, which can almost be compensated.
Therefore, Justice Levy is of the opinion that in this case "such an infringement of the property right is disproportionate, and this is true even when you take into account the goals that Regulation 387B of the Civil Procedure Regulations seeks to achieve, and the property right of the respondents" (Telpaz Case, ibid., at p. 561, opposite letter E).
- Dr. Dudi Schwartz criticized the majority's position in the Telepaz (Schwartz, at pp. 472-477), emphasizing that "The minority judge's ruling seems to more appropriately reflect the mutual perspective in light of which the interim remedies should be examined, according to which the damages that will be caused to the applicant if he does not receive the interim relief, and not only the damages that may be caused to the respondent if the relief is granted against him should also be examined."Name, at p. 477).
- Dr. Schwartz estimates that the reason for the majority ruling stemmed from the fact that the majority's position was "Seek that almost intuitive rescue in favor of the person against whom the temporary relief is sought, without looking at the case at hand from a perspective that examines the mutual damages, that is, to examine the extent of the damage that may be caused to the applicant if the temporary receivership order is not granted to him, as opposed to the damages that will be caused to the respondent if the temporary relief is granted against him." (Name, at pp. 476-477).
- This criticism of Dr. Schwartz is not specific only to the temporary relief of receivership, but applies to all temporary remedies, and in fact, to the basic concept of legal procedures, as I quoted at length in my judgment in the Felman.
- I am of the opinion that even if I adopt the majority position in the TelepazAnd even if I accept the approach that in receivership the plaintiff should be more stringent than in the temporary relief of foreclosure (due to the implications of receivership - even if it is a temporary receivership - on the ability of a business to function, and the great difficulty in restoring it, if indeed it turns out at the end of the proceeding that there was no room for the appointment of the temporary receiver), the constitutional aspect, not only does it not stand in the way of the applicants' request before me, Rather, it is precisely the constitutional discourse that supports, according to my position, as I will explain now, the approach of the plaintiffs/applicants before me.
- I have already explained, in great detail, in Parashat Felman, because when a judgment has already been rendered, the constitutional spotlight shines in a way that Positive The plaintiff who won his judgment, since from that point onwards, the person whose constitutional rights to property are violated is the plaintiff, who received a judgment. In this regard, I have explained and elaborated on the Felman, that the protection of the property right is not that of the defendant, in the temporary remedies, because after the judgment, the plaintiff has property, which is the judgment, and on him, i.e., the plaintiff, must be protected and his rights must not be violated, due to Section 3 of the said Basic Law. I do not believe that there is any reason or justification to copy in this decision everything that I have written, at length and in detail in a judgment Felman, including the references to the fact that the property right also includes the right of a creditor or a creditor to receive the funds that the judgment determined would be paid to him (see: paragraph 36 onwards in the Felman, especially the references that appear in paragraphs 38-41).
- A person who does not comply with the judgment, and refuses to pay what the competent judicial instance imposed on him (in our case, the respondent was initially charged by an arbitrator, a retired president of a district court, and the arbitrator's award was approved by a judge of the district court), is not entitled to protection in the shadow of the constitutional protections, when these are intended to protect the property of the property owner, That he is the plaintiff who became the "winner."
- In this regard, I have said the following in Parashat Felman, in paragraph 45, in relation to the obligation of a father to pay alimony to his children, by virtue of a judgment, but their force is good in relation to anyone who has been acquitted of his law, and he holds a judgment in his favor:
"Respect for the rule of law and compliance with judgments, including financial judgments, requires that important and significant weight be given to the need to take action in execution proceedings.