The trial court on this point is not based on findings of reliability, but on considerations of logic and law, "the court of appeal may intervene in them, since the trial court has no advantage over the appellate court in such a case" (Civil Appeal 5293/90 Shaul Rahamim in Tax Appeal v. Bank Hapoalim Ltd., IsrSC 47(3) 240, 249). Therefore, I will now examine whether the respondents met the burden of proving their claim.
14a. In my opinion, no explicit consent as claimed by the respondents has been proven. Under the circumstances
The matter raises a difficult preliminary question: is it conceivable that the appellants agreed to waive their right to receive a third apartment, and their right to collateral that would guarantee their full rights vis-à-vis the company, without any document being signed thereof? Respondent 3 confirms that no document was signed in this regard. He has no explanation as to why an agreement was not signed on such a central matter. Moreover, when respondent 3 was questioned about his affidavit and asked whether there was a waiver by the appellant of the third apartment, he answers (on page 46of the transcript):
"Don't give up, no one gives up an apartment so quickly".
He goes on to explain that it is explicitly said that accountability will come: Those who owe money will be paid (ibid.).
Respondent 3 also got into trouble in his cross-examination, when he was asked when the meeting in which the alleged agreement was reached: first (on page 46of the transcript) he claimed that it was in 1979-1980, and later, he claimed that it was in 1983 (on page 47 of the transcript).
- Also from the testimony of Respondent 5, Attorney Shai Toister, It does not appear that it has been achieved
Such consent. In his affidavit, respondent 5 refers to the dispute between the parties regarding the question of the third apartment, of which he first became aware in 1986 (paragraph 12 of the affidavit). Even in the description of a meeting held in his office in 1986 between the appellants on the one hand and Yaakov Shatil on behalf of the company, in which respondent 5 was present, he does not refer to the agreement between the parties that is consistent with what is now claimed by respondent 3, but rather to Yaakov Shatil's claim that the appellants are not entitled to a third apartment and that the company is entitled to reimbursement from them (paragraph 20of the affidavit). It should be noted that even in his cross-examination, respondent 5 did not raise a clear claim that at that meeting an argument was made that an agreement had been reached between the parties on this point.