Thus, we have learned so far that - contrary to the plaintiff's own version that the checks, or at least the check in the amount of ILS 1.6 million, can be secured for payment for goods - the amounts of the checks do not express a debt for goods only, but for additional engagements between the parties.
It should be noted that in the course of conducting the proceeding, the parties addressed in their arguments regarding the checks in a general and not specific manner with respect to each and every check, so that with regard to the checks in the amount of ILS 30,000 and ILS 14,000, it was not concretely claimed that they were filled out as payment for goods and no evidence was presented linking these sums to the supply of goods to the defendant.
- The plaintiff, as stated, sought to see the defendant's disregard of the warning letters she sent, as knowledge and agreement to the amounts of the checks.
- A perusal of the warning letter of March 5, 2017, which was attached as Appendix 2A to Mr. Meisler's affidavit, shows that it does not detail the sums while distinguishing between merchandise and concession, and there is no mention that the sum includes payment for a franchise.
The warning letter of February 5, 2017 (Appendix 2B to Mr. Meisler's affidavits) also speaks of the sale of goods (in section 5 the checks in the sums of ILS 30,000 and ILS 14,000 are mentioned in this proceeding) and about a bank guarantee that the plaintiff provided to the defendant, but it also does not deal with the franchise.
The warning letter of February 8, 2017 (Appendix 2C to Mr. Meisler's affidavit) warns Dr. Dan against offensive publications that she publishes against the plaintiff, and that he too does not deal with a franchise.
Similarly, the warning letter of February 19, 2017 (Appendix 2D to Mr. Meisler's affidavit) does not discuss the franchise and also deals with negative publications, while mentioning the defendant's admission of the existence of a debt in respect of goods.
- An examination of the warning letters shows that at most they relate to a debt in respect of goods and not to a franchise or investment in the business, as claimed below. In any event, from the last two letters it appears that the plaintiff is raising a complaint against the defendant's publications against the plaintiff defaming her. In other words, from the letters themselves it emerges that even if the defendant did not reply to these letters in writing, following their receipt she came to the plaintiff's offices, complained against her and accused her of serious accusations. Therefore, I am of the opinion that the defendant's lack of response to the letters cannot be attributed as an agreement to the defendant's amount. All the more so for authorization to fill an amount in respect of a franchise, when according to the plaintiff herself, the checks were intended to secure payment for goods.
Moreover, in his testimony Mr. Hodis was asked about that franchise, and he referred to the invoices in which he appears but could not point to a franchise agreement (in the transcript at p. 83, paras. 31-31) and such an agreement was not submitted.
- In the framework of the proceeding, an agreement was not presented indicating the scope of the permission given to the plaintiff to fill the checks she held, but rather this was presented as the practice of work between the parties. It should be said that it is reasonable to assume that this type of authorization does not give the check holder the freedom to fill any amount he wants, let alone the sum of ILS 1.6 million, and certainly not in businesses that are conducted in an orderly and proper manner. Therefore, and in order for me to be convinced that the filling of the checks was within the scope of the authorization given to the plaintiff, it was expected that evidence would be presented as to the scope of the transactions between the parties beyond the disputed invoices, in order to give an indication of the feasibility of the amount filled in the checks. No such evidence was presented, and therefore the expectation that the lack of response to the warning letters would be perceived as the defendant's consent to the amount written therein, is unacceptable.
- Moreover, I will note that in her testimony the defendant claimed that in the first months the plaintiff would ask how many products were sold and what amount could be deposited from the checks, but as soon as the plaintiff entered into difficulties they began to "do whatever they wanted" by depositing her checks under the pretext that it was a mistake on the part of the bank clerk (in the transcript at pp. 25, paras. 18-22). Her testimony was not concealed. This version is supported by the testimony of Mr. Meisler, who confirmed that Bank Leumi sued the plaintiff as well as her customers for checks that the plaintiff deposited and received credit for, and that the plaintiff told the bank that there was no need to manage two fronts (in the transcript, pp. 38, paras. 25-29). This means that the plaintiff acted to remove the claims from her clients and took responsibility for these checks in a manner that strengthens the defendant's version that the plaintiff made the checks as mature, and raises questions about the plaintiff's proper conduct.
- In light of what has been said so far, I am not persuaded that the defendant - in the absence of a response to the warning letters - actually or implicitly gave her consent to the payment of the checks or at least the check in the amount of ILS 1.6 million and did not admit to the debt in these sums.
The consideration for the checks
- The plaintiff's argument against the defendant is that the latter did not prove a failure of consideration.
Even if I refer to the amount in the check in the sum of ILS 1.6 million, as if it refers only to the goods and not to other components such as a franchise or an investment - there is a dispute between the parties regarding the order of the goods and its supply. On the one hand, the defendant claimed that she did not order and did not receive goods worth millions of shekels from the plaintiff and owed nothing, and on the other hand, the plaintiff claimed that the goods were ordered and are stored for the defendant in her warehouses. In other words, even according to the plaintiff's approach, she did not supply the goods or part thereof, but rather she holds the goods and wishes to be paid for it according to the checks that she filled out the amount.
- In terms of the evidence that was attached, it appears that from the correspondence in the text messages that were attached (Appendices 4B and 4C to the affidavit of Mr. Meisler's main witness), there is some kind of calculation between the parties that the defendant undertook to pay, which contradicts the defendant's version that he owes nothing. The defendant did not bring any evidence from which it was possible to learn what it considered to be the balance of its debt to the plaintiff. However, in the circumstances described, the defendant's ability to prove a negative fact - that she did not order and did not receive the goods in question - is limited. However, she could at least have brought evidence to prove the scope of the transactions that were made during the relevant period between the parties in order to show the feasibility of the amount of the checks or evidence from her bookkeeping regarding the balance of her debt to the plaintiff, according to her. However, the defendant did not do so.
- In her summary, the plaintiff referred to a decision given in the framework of an objection to the execution of a deed 42785-12-17 , where the defendant's objection was rejected after it was found to be a fabric defense, while quoting the decision. The court's decision in the framework of an objection cannot constitute evidence in this proceeding, especially when it is a proceeding to which the plaintiff was not a party at all.
- Despite the defendant's failure to bring sufficient evidence, in light of the doubt that the filling of the checks was done within the scope of authorization between the parties, I clarified that I do not believe that the plaintiff is entitled to benefit from the presumption of consideration. Therefore, and when it emerges from the plaintiff's version that the goods were not actually supplied to the defendant but were held by the plaintiff in her warehouses (see paragraph 9 of Mr. Meisler's affidavit of the main witness) - he also had the presumption of consideration in her favor, which is the information in the plaintiff's possession. In these circumstances, the plaintiff could easily have brought evidence to contradict the defendant's version, such as: photographing the goods in the warehouses, ordering the goods by the defendant or ordering the goods by her from the manufacturer, but she did not do so beyond submitting the invoices, which are not sufficient, as will be clarified below.
In addition, and to the extent that the plaintiff sought to relate to the checks as part of the fabric of credit she gave to the defendant, she could have brought evidence to prove the extent of the credit she gave to the defendant. In this context, Mr. Hodis elaborated in his testimony and detailed that Dr. Dan purchased the goods in accordance with the invoices, knowing that she was receiving suppliers' credit from them, and for this suppliers' credit, the goods were stored for her in collateral with them. He also claimed that she authorized her bank to give their bank details for the purpose of the same credit providers, and that she gave them checks with sums (in the transcript, p. 78). Beyond this testimony, no evidence was brought to prove the extent of the credit given to the defendant, and it in itself is not sufficient to convince that credit in the amount of ILS 1.6 million was given.
- As stated, there can be no doubt that the information regarding the scope of the goods in the warehouses is under the control of the plaintiff, and I am under the impression that she did not bother and even evaded bringing evidence attesting to the quantity and value of the goods in the warehouses.
Mr. Meisler testified that the check in the sum of ILS 1.6 million derives from the invoices for the purchase of the goods by the defendant (in the transcript at pp. 47, paras. 21-22). He also testified that this was a cumulative sum in respect of the goods ordered for the defendant for a period of two years from the manufacturer's factory, which was stored in the plaintiff's warehouses for the defendant, which from time to time required goods and the plaintiff supplied it on demand (in the minutes, pp. 31, 24-31 and 32, paras. 1-7).