"However, if it is agreed - and everyone agrees - that if there was an admission on the part of the defendant that he owed the money, the plaintiff is entitled to demand it - why should the defendant's confession be only in writing? What is the difference if the confession is in writing or in some other way? Friends claim that there is a difference: in writing it is clear. If a person signed his name, he obviously confessed: but if he did it orally, there could be doubt. He can later deny it and say he didn't confess.
For this reason, I added the words "in the presence of two witnesses" [...] If they are true witnesses and the court believes them, it is clear that he confessed; And if he confesses, what sanctity is there in a written confession and not an oral confession?" (D.C. March 26, 1958, 1683).
Later in the discussion, MK Baruch Azania, on behalf of the Constitution, Law and Justice Committee, responded to MK Rosenberg's reservation:
"As for MK Rosenberg's proposal to add the words 'before two witnesses' as a way of obtaining a confession that stops the statute of limitations even outside court, I am of the opinion that there is no clear proof in two witnesses as it is in the case of a written confession or before a court. Only a confession in writing or before a court can be considered proven" (ibid., at p. 1684).
Indeed, these words of the Knesset members reflect Evidentiary purpose In relation to the fixed written requirement In section 9 To the law: to prove that the defendant did indeed give the confession attributed to him.
- In view of the above, it is possible to assume that at the basis of the written requirement in section 9 The law has two purposes - both evidentiary and focused on the intention of the confessor and the seriousness of the circumstances of the confession. Given that each of the purposes is likely to lead to a different result in our case, we must examine whether the legislature has set priorities between the different purposes (see: Lightning, at p. 207).
- Indeed, it seems that the legislature has set such priorities. As detailed above, at the end of the Section 9 The law stipulates that "in this section, 'confession' - except for an admission that was accompanied by a statute of limitations." In other words, "An admission that was accompanied by a statute of limitations" is not an "admission" for the purposes of this section. This means that even in the absence of a dispute that the defendant gave the confession attributed to him, if he expressed an intention not to waive the claim of limitation, this intention negates the validity of the confession for the purpose of Section 9 to the law. It follows from this clear determination of the legislature that Section 9 The law gives precedence to the rationale that concerns the intentions of the confessor to waive his procedural right to invoke the statute of limitations, and not to the evidentiary rationale, which concerns the very proof of the alleged confession (See also: Posner, at pp. 557-558).
- In view of the above, it can be determined that the main purpose of the written requirement in section 9 Law Focused on the intentions of the confessor and the seriousness of the circumstances surrounding the confession; and not in the possibility of proof of the very delivery of the confession.
Interpretive Conclusion
- Against the background of the above, it seems that, as a rule, there is no room to recognize the recording of words that were said orally - not "before the court" - as fulfilling the established written requirement In section 9 to the law. As explained above, The aforesaid written requirement is intended, in essence, to ensure the seriousness of the confession, and to prevent the defendant from exposing himself to the lawsuit in a frivolous and hasty manner, which would otherwise have been time-barred. This, taking into account that the work of writing is characterized, as a rule, by seriousness and the weighing of words, while the act of speech is characterized, as a rule, by spontaneity. Given that a recording is a recording of things that were said orally, then in the normal state of things, the recording does not fulfill the purpose in question. All the more so when the defendant is not aware that he is being recorded, as in our case.
Indeed, there may be circumstances in which the defendant is aware that he is being recorded, and out of seriousness and seriousness, decides to verbally admit the existence of the plaintiff's right. Admittedly, this state of affairs may fulfill the purpose of the aforementioned written requirement, but it may also give rise to certain difficulties (See, for example: Posner, at p. 558). In any event, circumstances of this kind are not before us, and in any case we are not required to plant rivets in them.