He later claimed:
"So I signed with Am Zion who told me about the correctness of the so-called 500 shekels, I understood it, and the rest he gave me over the phone, 'And sign and sign.'" (pp. 7, 7-9 per part).
- The defendant's claim that he did not read the agreement before signing it was raised for the first time at the evidentiary hearing and in the summaries, but was not raised in the objection. His arguments in this regard constitute an expansion of the front and should be rejected for this reason.
- Even if we were not talking about expanding the façade, we are at least dealing with suppressed testimony. The rule that applies to the matter of suppressed testimony is that the value and evidentiary weight of the latter is low, due to the suspicion that naturally arises as to its truthfulness. This is so long as the witness does not have a convincing and satisfactory explanation for the reasons for which he conquered his testimony (see, for example, Criminal Appeal 1645/08 Anonymous v. I. [Nevo] (September 3, 2009)).
- In our case, not only did I not find in the defendant's testimony an explanation for the timing of raising his claim that he did not read the entire agreement and did not fully understand what he was signing, but the defendant admitted in his testimony that he signed the agreement on his own initiative and of free will (pp. 7, 13, 15 paragraphs).
- In contrast to the testimony and words of the defendant, the plaintiff's version as presented by the two witnesses declaring on her behalf is the plaintiff's version. In the meantime, Mr. Amit Meller, the client portfolio manager of the Mortgage Operations Department for the plaintiff, claimed in his affidavit that the defendant had signed a work order agreement and a promissory note and a power of attorney in favor of the plaintiff (paragraph 4, Appendices 1-4 to the plaintiff's notice of the attachment of documents), and in his testimony he elaborated on the signing process and stated:
"He talks to the salesperson, the salesperson characterizes with him what he needs in terms of his desire to solve the problem he turned to, and if we know how to help and bring a solution to the problem, we present to the customer how we can help him in terms of the solution, and we also show him the cost fees, of what we can do for him at the specific cost of the fees, and we fill out a digital work order agreement for him and send him to sign over the phone. Of course, we go through a work order agreement with him at the time of sending him while he is still with us on the line, we go through all the clauses with him" (p. 32 of para.
- Meller clarified in his testimony that he and the defendant had gone through all the important clauses of the agreement and claimed: "We went through the clauses, the fact that he doesn't know what he signed is something else." (pp. 2, 31-32 per par).
- Taking into account the defendant's suppressed testimony (which in any case weighs less) on this matter, in contrast to Mr. Mahler's consistent testimony that claims the exact opposite, I have found it appropriate to prefer the plaintiff's version and to determine that the defendant was explained the main points of the agreement and its essence at the time of the signing.
- In any event, in this regard, mention should be made of the long-standing and well-known rule, according to which a person who signs a document without knowing its contents will not be heard on the grounds that he did not read the document and did not know what he signed and why he undertook it, since he is presumed to have signed as a sign of his consent, whatever the content of the document may be (see, for example, Civil Appeal 467/64 Switzerland v. Sandor, IsrSC 19(2) 113 (1965)). This rule is even more true when we are dealing with documents of importance, since logic requires that the signature on them should not be done inadvertently (see, for example, Civil Appeal 1319/06 Shlek v. Tena Noga (Market) 1981 in Tax Appeal [Nevo] (March 20, 2007)).
- Therefore, I determine that there was no defect in the process of the defendant signing the agreement.
Was there any ground for the defendant's cancellation of the agreement?
- In the statement of objection, the defendant claimed that when he realized that he had fallen victim twice and that he was taking advantage of the severe distress in which he found himself, he informed the plaintiff of the cancellation of the agreement between them (paragraph 11 of the objection request and paragraph 21 of the affidavit), but no evidence was presented to me that the defendant had indeed informed the plaintiff of the cancellation of the agreement, and the plaintiff did not know how to respond to this in his testimony (p. 15, paras. 1-6).
- I therefore determine that the defendant did not actually notify the plaintiff of the cancellation of the agreement.
- The question now being asked is whether the defendant has any cause for cancelling the agreement, because of the content of the agreement, because of the terms of the loan that were approved for him, or because the plaintiff did not fulfill its obligations under it.
- I believe that the answer to this is no, and I will reason.
I am not persuaded that the conclusion of the agreement was made under terms of "oppression", nor am I convinced that these were the terms of the loan that was approved for the defendant in the circumstances
- Section 18 of the Contracts (General Part) Law, 5733-1973, which establishes the cause of "oppression", states that:
"A person who entered into a contract due to exploitation by the other party or another on his behalf by taking advantage of the contractor's distress, his mental or physical weakness or his lack of experience, and the terms of the contract are unreasonably worse than what is customary, may cancel the contract."
- The right to cancel an agreement due to oppression is contingent on the existence of four cumulative elements: (1) proof of distress, mental or physical weakness of the contractor, or serious and extreme lack of experience; (2) Proof of conscious exploitation of this situation by the other party; (3) the existence of a causal connection that shows that the exploitation led, according to a subjective test, to the engagement in the contract; (4) Proof of an objective-external basis according to which the terms of the contract are unreasonably worse than what is customary (see Civil Appeal 8222/19 Hananya v. Quality Credit Fund [Nevo] (December 7, 2020)).
- I am not persuaded that any of the four conditions detailed above were fulfilled in his case, let alone that all four were fulfilled together.
- The defendant did claim in his affidavit that due to his difficult financial situation, Mizrahi-Tefahot Bank was appointed receiver for the residential apartment owned by him and his wife in Be'er Sheva, and that the entanglement he found himself in stemmed from a financial debt to Obligo in the amount of ILS 250,000 (paragraphs 3-4 of his affidavit). The defendant also admitted that in light of the receivership proceedings, no bank agreed to give him a loan, and therefore he was forced to look for a non-bank loan (paragraph 5 of his affidavit).
- Indeed, there is no dispute that the defendant was in financial distress, was in debt, and his and his spouse's residential apartment was subject to However, this is not enough to determine that his condition caused the plaintiff to take advantage of him and that she did in fact exploit him in a manner that caused him to enter into an agreement with her. Beyond the fact that the defendant himself admitted that he approached the defendant on his own initiative (paragraphs 6-7 of his affidavit), it should be remembered that the defendant's situation is no different from that of many people who find themselves in financial trouble and wish to contract with companies that will help them obtain loans that can extricate them from the situation they find themselves in.
- If this is not enough, then I am not persuaded that in our case an objective-external basis has been proven, according to which the terms of the agreement are unreasonably worse than is customary.
- The agreement in which the defendant entered into with the plaintiff (Appendix 2 to the plaintiff's notice of the attachment of documents) is in fact his work order agreement, in which the defendant authorized the plaintiff to act on his behalf to raise credit in the amount of approximately ILS 716,000 vis-à-vis all banks/insurance companies/investors/non-bank lenders, etc.
- This is an agreement in which the plaintiff undertook to handle the following issues for the defendant:
"1. Financial advice only regarding loans, financing, investments, mortgages, financial advice and financial conduct.
- Submitting the order to various lending entities and/or investment houses at the sole discretion of the representative.
- Representation of the client vis-à-vis the selected party.
- Accompanying the client throughout the process, which will end with the coordination of signatures with the financing entity on the financing/loan/mortgage/investment."
- Clause 18 of the agreement relates to the amount of legal fees to which the plaintiff is entitled, which was set at ILS 40,000 plus a tax appeal under the following payment terms:
"A. A seriousness fee in the amount of ILS 500 + VAT will be paid on the date of signing this agreement.