For the sake of good order, I find it clear that although the said judgments deal with the Civil Procedure Regulations in their previous version (5744-1984), the wording of Regulation 22 of the Civil Procedure Regulations, 5779-2018, which deals with a third-party notice, is essentially identical and does not materially change from the rule established in the case law.
- For our purposes, a review of the engagement agreement that was attached to the affidavit of the main witness on behalf of the plaintiff, between the plaintiff and the recipient of the notice, indicates in clause 5.7 as follows:
"[...] In any event that the client has stopped his studies and the organization must return funds to the client for the termination of his studies, the restitution amount will be transferred to Tarya as a full or partial repayment of the loan taken out under this agreement. The organization undertakes to add a provision in the agreement between it and the organization in this regard."
- In other words, even though the plaintiff chose to file her claim against the defendant only, the evidentiary and contractual fabric that was brought before the court clearly indicates that the recipient of the notice - ICOM College - was the dominant factor in initiating, drafting and actually operating the engagement. The provisions of the agreement quoted above establish a clear contractual mechanism, according to which the organization - i.e., ICOM - bears direct responsibility for the repayment of the loan, insofar as the studies have not taken place or have been stopped, and the customer is entitled to refund the funds.
This contractual arrangement creates a direct obligation by ICOM to the plaintiff, according to which it will indemnify the plaintiff for sums that will be required to be reimbursed, and hence its liability to the plaintiff does not stem only from its being a formal third party to the proceeding, but also from its status as a substantial party to the relevant contract and as a person who bore direct responsibility for the realization of the purpose of the loan. Accordingly, and based on the case law and the Civil Procedure Regulations, there is no impediment to imposing a direct liability on her against the plaintiff, despite the fact that she was not directly sued.
- In the circumstances, I find that the charge that is the subject of this claim should be imposed on it, and it will be clarified that it concerns only the balance of the unpaid loan amount, which in any case does not have before me a restitution claim on behalf of the defendant.
The Right to Cancel by Virtue of the Consumer Protection Law
- My above determinations are sufficient to dismiss the claim against the defendant in its entirety, but I will not fulfill my duty if I do not consider the defendant's claim for defenses by virtue of the Consumer Protection Law, 5741-1981.
- It appears that there is no dispute between the parties that the transaction between the defendant and the recipient of an incoming notice falls under the definition of a "distance sale transaction" as defined in the Consumer Protection Law - a transaction that ends with telephone communication.
- Section 14c(f) of the Law defines a "remote sale transaction" as "an engagement in a transaction of the sale of an asset or the provision of a service, when the engagement is made following remote marketing, without the joint presence of the parties to the transaction." The term "telemarketing" is defined in that section as "an approach by a dealer to a consumer by mail, telephone, radio, television, electronic communication of any kind, facsimile, publication of catalogs or advertisements, or by similar means, for the purpose of entering into a transaction without the joint presence of the parties."
- As it appears from the notice to a third party, a representative on behalf of the recipient of the notice, on December 11, 2019, contacted the defendant after the defendant left a request that he was interested in studying at the college.
The defendant communicated with the recipient of the notice by telephone conversation, so it is claimed that the loan was even taken, without a formal transaction. During that conversation, the terms of the transaction were agreed upon (when I found that the defendant entered into a payment transaction and not a loan transaction) and in practice 5 payments were paid.
- The law requires that the engagement be made "without the joint presence of the parties to the transaction." In our case, all stages of the engagement - from the publication on the Internet, through the online conference, to the phone call and receiving the confirmation by email - took place remotely, without the joint physical presence of the parties. The use of technological means such as Zoom or telephone is not a substitute for the joint presence requirement in the law.
Section 14c(f) of the Law explicitly enumerates the means of communication that constitute "remote marketing", including "electronic communication of any kind". The legislature sought to give a broad interpretation of this term, so that it would include all types of electronic communication. In our case, the use of a combination of a website, video calls, phone calls, and e-mail clearly falls under this definition.
- The Consumer Protection Law, following Amendment No. 7, sought to comprehensively regulate the issue of remote sales transactions. The explanatory notes to the amendment indicate that its purpose was to deal with the "evolving method" of remote sales, while striking a balance between consumer protection and maintaining a normal trading life.
- Section 14C(b) of the Law explicitly states:
"[...] In a remote sale transaction conducted with a consumer who is a person with a disability, a senior citizen or a new immigrant, the consumer may cancel the transaction within four months from the date the transaction was made, from the date of receipt of the property or from the date of receipt of the document containing the details stated in subsection (a)(2), whichever is later, provided that the engagement in the transaction included a conversation between the dealer and the consumer, including a conversation via electronic communication."
- According to the law's definition, a "senior citizen" is someone who is over the age of 65, and in our case the defendant falls within the scope of the law, both because of his disability (he uses a wheelchair) and because of his age.
- Section 14D of the Law regulates the manner of revocation and states:
"Written cancellation may also be done by facsimile or electronic communication," with the law distinguishing between transactions concluded on the dealer's website and transactions concluded in other ways.