This obligation has not been fulfilled. In the provision of clause 3 of the addendum to the contract, the wording of which was brought above, the company undertook to register a mortgage in favor of the appellants for the collateral asset. The parties determined that such a mortgage would be registered when the appellants demanded it, and a restriction was set for this, making the registration of the mortgage conditional on the lawyers determining that there is an immediate need for it. In my opinion, the lawyers were obligated to record, on the basis of this undertaking, a warning note on the collateral asset, shortly after the addition to the contract was included. When there is a written undertaking to make a real estate transaction - in our case a mortgage - a warning note can be recorded (section 126(a) of the Real Estate Law, 5729-1969). The importance of registering the warning note is, as stated in section 127(a) of the Real Estate Law, that if a warning note is registered and as long as it is not deleted, a transaction that contradicts the content of the note will not be registered, except with the consent of the eligible person or in accordance with a court order.
Due to the importance of the warning note, it is accepted practice that immediately after signing an agreement that includes an undertaking to make a transaction, the person handling the registration of the transaction takes care of registering a warning note in order to prevent the registration of a contradictory transaction. A lawyer who takes upon himself the handling of the registration of the transaction must take care of the registration of such a note. This is required of any lawyer who acts with reasonable diligence. A lawyer who does not behave in this way does not fulfill his duty as a lawyer. In our case, it was even expressly stipulated in the provision of clause 2 of the addendum to the contract that a warning note should be recorded on the collateral asset. This was not done. Already in this lies negligence on the part of the late attorney Eliezer Toister. Had a warning note been registered, the registration of a mortgage on the collateral asset in favor of Mizrahi Bank would have been avoided, and the appellants would have been assured that they would receive what they were entitled to from the company. Since no warning note was recorded, and it became clear that the appellants did not have a guarantee that would guarantee the receipt of what they were entitled to from the company, it was the negligence of the late Adv. Eliezer Toister that caused this damage.
- The second reason for which the lawyers owe the appellants relates to their actions
of the lawyers at the time of registering the mortgage in favor of Mizrahi Bank on the collateral property, in 1983, we will recall that the attorneys undertook to serve as the appellants' agents to ensure the registration of the mortgage, as stipulated in the addendum to the contract. The lawyers knew and understood that the appellants trusted them in this matter. In the framework of this mission, the lawyers were required to disclose to the appellants any information relating to the subject of the mission (section 8(1) of the Mission Law, 5725-1965). They should have avoided anything that contradicts the best interests of the appellants and the interest of another person (section 8(5) of the Emissary Law).