President A. Barak also addressed this matter in the following words:
"Indeed, the court's discretion within the scope of section 31 of the Contracts (General Part) Law is broad. It does not operate within rigid frameworks: "The court should be allowed flexibility in making use of its discretion." [...] With regard to existence, the starting point is that the obligations arising from the invalid contract are null and void. Therefore, there is no obligation to observe them. This is the rule, whereas an order to fulfill the obligation is the exception. In the framework of the exception, the court will take into account - as in the case of restitution - the degree of severity of the illegality, the degree of guilt of the parties, the degree of performance of the invalid contract, and the interests of third parties related to the fulfillment of the obligation.(The Zagori case, at paragraphs 34-35).
- Since I have determined that the letter of undertaking is essentially null and void because it contradicts the provisions of section 8 of the Inheritance Law; and that its clauses cannot be separated into parts, then the letter of undertaking has no validity, and it is null and void.
Laws of Unjust Enrichment
- In the judgment of the District Court, it was noted that the determination of the Rishon LeZion Family Court, which granted the applicant ownership of the farm, was created as a result of the respondent's undertakings, and of the agreements she made with her father. Therefore, the District Court ruled that there is no reason to exempt the Applicant from his obligations for which he has been granted full economic rights; and that the respondents are entitled to compensation by virtue of the Enrichment Law and not by law.
- Without entering into the correctness of these words, I am of the opinion that this does not change the legal outcome in the present case; And I will elaborate:
- Section 1(a) of the Unlawful Enrichment Law provides as follows:
"1. (a) A person who has not received an asset, service or other benefit (hereinafter - the winner) that came to him from another person (hereinafter - the creditor), must return the winnings to the creditor, and if restitution in kind is impossible or unreasonable, pay him the value thereof." (Emphasis added - A.S.).
- In our case, there is no dispute that the Applicant received his rights in the farm from his father according to a legal right, since these rights were granted to him in the framework of a judgment of the Rishon LeZion Family Court, which has long since become conclusive - and this is sufficient to negate the application of section 1(a) of the Enrichment Law and not in law. Moreover, even if it had been determined that the farm had been taken into the hands of the Applicant unlawfully, this would not have been of any benefit to the respondents who do not fall within the definition of "entitlement" as stated in section 1(a) of the Enrichment Law and not in law. Therefore, I cannot agree with the District Court's ruling on this matter as well.
- Since I have determined what I have determined, the discussion of the other rulings of the District Court as to the judicial silence, and as to the question of payment for the farm by the respondent, is superfluous. More than necessary, I will add and clarify that judicial estoppel arises when a party tries to construct in various proceedings contradictory claims in bad faith, knowing that one of his claims is not true (see: High Court of Justice 8948/22 Sheinfeld v. Knesset, paragraphs 18-24 of the [Nevo] judgment (January 18, 2023)). In the present case, the Applicant's belief that his sister covered their father's debts that were lying on the farm was sincere and came from his sister, whom he believed at the time. This is what the Petah Tikva Family Court held, and in this factual determination - which is based on a direct impression of witnesses - there was no room to intervene (see, Mini-Many: Civil Appeal 4175/12 Stone and Lime Industry inTax Appeal v. Gadir, para. 14 and the references there [Nevo] (March 10, 2014); Civil Appeal 1596/18 Khoury v. Amos, para. 17 [Nevo] (March 16, 2020); and Civil Appeal 8234/09 Shem Tov v. Peretz, IsrSC 66(3) 60, 83 (2011)). Moreover, the Family Court ruled that the Respondent in any case did not prove her claim that she paid for the farm. And if that were not enough, the Applicant's victory in the proceeding he conducted against his father stemmed from the totality of the reasons and the evidence there, and not only due to the Applicant's testimony regarding the coverage of the debts that were incurred on the farm by his sister (the Respondent here). In this last regard, the words of Judge Frank Easterbrook of the Court of Appeals for the Seventh Federal District are appropriate:
"The offense is not taking inconsistent positions so much as it is winning, twice, on the basis of incompatible positions".