In accordance with the circumstances that have become clear as detailed below, the dispute between the parties is broader than the promissory note dispute. As stated, the parties also raised claims regarding a breach of an agreement relating to cooperation in a clinic in Rishon Lezion, which in practice was not clarified, and the lack of payment for a franchise agreement that was claimed to be part of the check amount in the amount of ILS 1.6 million. And as stated, an argument was also raised regarding the plaintiff's permission to fill the amounts of the checks in respect of these charges.
In view of the disputes between the parties, who are close parties to the checks, it seems that the checks themselves deal with the matter in dispute, and the fact that the proceeding was conducted as a promissory note only because the plaintiff had the power to fill out the checks and submit them for execution at the Execution Office - should not give her the advantage afforded to the plaintiff in a promissory note claim. Therefore, and since the plaintiff's own claims arise that she did not supply all the goods to the defendant, the plaintiff is not entitled to benefit from the presumption of consideration and the transfer of the full burden to the defendant in order to repel the claim, but the plaintiff must give an explanation regarding the amounts of the checks that she filled out and her activity within the scope of the authorization given to her and bring evidence to prove her claim.
- On the merits of the matter, as stated, the defendant confirmed that the checks were signed by her, but claimed that they were filled out without her knowledge and without her consent, and she did not receive consideration for them.
The plaintiff did not deny that she was the one who filled out the amounts of the checks before presenting them for payment. However, according to her, the defendant knew that the checks had been filled out and the amounts of the checks in light of warning letters she sent to the defendant, which she ignored, as well as in light of correspondence with Dr. Dan in which she undertook to repay the debts.
- The evidence before me shows that the plaintiff did indeed write a letter of demand to the defendant on February 5, 2017, for payment of a debt in the amount of ILS 1,865,681 for the purchase of goods from the plaintiff. When there was no response, the plaintiff again sent a warning letter on March 5, 2017, in which she informed the defendant that she intended to present for repayment her signed check that she had given to the plaintiff, with the latter completing the repayment date and the amount of the debt (deducting the balance of the deductible checks) in the sum of ILS 1,647,879 (Appendix 2B to Mr. Meisler's affidavit). The defendant did not respond to this letter either.
The defendant confirmed that she did not respond to the letters. In her testimony, Dr. Dan confirmed that she had received the letter dated February 5, 2017, which also included her signature, and confirmed that she had not responded to this letter and to all the letters sent to her by the plaintiff, which were attached to Mr. Meisler's affidavit (including the warning letter of March 5, 2017). In her testimony, she claimed that she acted in accordance with the advice of her accountant, who is also a lawyer, who told her not to pay attention to it because they were only trying to intimidate her and that the sums had already been canceled and that she had already paid the appellant taxes for them (in the minutes, pp. 18, 26-5 and 29-30, and at pp. 19, 1-13). The defendant did not bring the accountant to testify that this was the advice he gave her, and in any event, her testimony indicates that shortly after the presentation of the check in the sum of ILS 1.6 million, she was aware of the plaintiff's intention to present it for repayment and ignored her warnings.