Family file (Haifa) 58512-10-24 S. v. H. - part 2

(Appendix 5 to appeal the decision of the plaintiff's registrar).

• An irrevocable power of attorney - in favor of Adv. S., to carry out all the actions, including the registration of the rights in favor of the plaintiff.

1. Application for registration in real estate (transfer of ownership without consideration).
2. A bill of sale without consideration.
3. A declaration by the seller and the buyer - that the portion of the land transferred is 1000/5104 square meters and is transferred without consideration (Appendix 4 to the Appeal Petition against the decision of the Registrar of Claimants).
4. On August 29, 2012, the affidavits were deposited with the Real Estate Taxation Bureau (as indicated by a stamp on the affidavits attached to the statement of defense on behalf of Adv. S.).
5. On September 2, 2012, a declaration was submitted under the Real Estate Taxation Law regarding the transaction. On the same day, Adv. S.  was sent a notice of assessment regarding the amount of the tax and attached a voucher for the payment of the assessment in the sum of ILS 1,667.  (See appendices to the statement of defense of attorney S.  ).
6. The Ottoman Settlement [Old Version] 1916On November 11, 2012, Adv. S. was sent a notice regarding the holding of a hearing on the betterment tax assessment in accordance with the parties' declaration submitted to the Tax Authority on September 2, 2012.  (See appendices to the statement of defense of attorney S.  ).

12-34-56-78 Chekhov v.  State of Israel, P.D.  51 (2)

8. On December 13, 2012, Adv. S. was sent a notice of an assessment according to the best judgment in the amount of ILS 120,000, andon December 25, 2012, the Tax Authority issued a notice of purchase tax assessment in accordance with the assessment that was made.  The notice noted that this was a transaction between relatives without consideration and that the balance of the purchase tax was ILS 2,005 (see appendices to the statement of defense of Attorney S).
9. On the same day, an assessment notice - betterment tax was issued regarding an exemption from betterment tax for a transaction that took place between the parties, taking into account thatit was agricultural land and for the transfer without consideration, and a certificate was issued for registration in the land registers in which it was noted that there was no balance left to pay.
10. There is no dispute that in practice, awarning note was registered in favor of the plaintiff and the transaction that was made between the parties was never registered at the Land Registry Office. There is also no dispute that none of the parties has made any real use of the land to this day (see the minutes of the hearing of March 4, 2025).
11. On October 28, 2024, the lawsuit was filed. The lawsuit was originally filed against both the defendant and Attorney S.  In a pre-trial hearing held on March 4, 2025, Adv. S.  was dismissed with the consent of Adv. S.  as a defendant in the case, after he submitted in his statement of defense all the transaction documents that were required of him.  The parties agreed that the claim of limitation would be clarified in the framework of the judgment.
12. On November 27, 2025, an evidentiary hearing was held (by recording) in which the parties were interrogated and Adv. S., who was interrogated as a witness (references to the testimonies in this hearing will be made to the TAM).
13. On January 13, 2025, the plaintiff submitted her summaries, and on February 11, 2025, the defendant submitted his summaries.

1. Summary of the parties' arguments in their summaries:

14. Summary of the plaintiff's arguments:

• The parties live in a traditional patriarchal society, with the defendant stepping into the shoes of their late father. The plaintiff received her rights in the land due to the assistance she gave to her family, her parents and her siblings, who found themselves in a difficult financial situation, and the decision to grant her the land was made by all the brothers.
• The parties jointly contacted Adv. S., who would represent them in the gift transaction that took place on August 28, 2012. At that time, Adv. S.  filled out a seller-buyer declaration.  The plaintiff never received the documents of the gift transaction, and only after the lawsuit was filed did Adv. S.  produce all the documents relevant to the transaction.
• The statute of limitations in real estate is 25 years, and in any event, the defendant admitted that he did not notify the plaintiff of the cancellation of the transaction, so that in accordance with section 9 of the Statute of Limitations, 5718-1958 (hereinafter: the "Statute of Limitations"), the time race began on November 27, 2025, the date of the defendant's confession, and alternatively, from the date the claim was filed.

The plaintiff accepted Adv. S.'s explanations that the registration process is under process and requires time since it is necessary to remove foreclosures.  The plaintiff did not take care of the registration as it was a relative and believed that he was handling the matter.  Over the years, the plaintiff sought to find out whether she could build on the land for her children, when she found out that the registration had not been completed.

• A copy of Nevo from the defendant's interrogation shows that there was no disgraceful attitude towards him on the part of the plaintiff and that he wanted to cancel the deal due to the brothers' wishes. The defendant presented contradictory claims when he initially claimed that he had informed the plaintiff of the cancellation of the transaction, while in his interrogation he claimed that this was not the case, and when he claimed that he had not signed an irrevocable power of attorney and in his interrogation he confirmed that he had indeed signed.  Therefore, judicial estoppel must also be applied by virtue of Regulation 72(b) of the Civil Procedure Regulations, 5744-1984.

In the circumstances, since the defendant signed an irrevocable power of attorney, no disgraceful treatment was proven on her part, and she even relied on the economic guarantee she gave her, the defendant does not have the right to withdraw the gift transaction and cancel it.

• The deal was never actually canceled. S.  admitted that the transaction could not be canceled without an affidavit signed by both parties and that the defendant should have taken legal action.  Adv. S.  did not announce the cancellation of the transaction and even continued to work with the authorities.  The claims that the plaintiff ignored Attorney S.'s demands for 12 years were not supported by any evidence, no document sent to the plaintiff was presented, and this claim is even ridiculous in view of the family relationship and the actual conduct of the parties.
• The "cry of fairness" should also be applied in our case due to the balance of power between the parties due to the defendant being the head of the family, the passage of time since the transaction was made, and in light of the fact that for about 12 years no claim was raised regarding the gift transaction.

15. Summary of the defendant's arguments:

• In 2012, the parties signed an undertaking to transfer a gift in the land owned by the defendant, all in front of Adv. S.
• The gift agreement was drawn up for the sake of appearance only in order to avoid paying tax in accordance with the law, and therefore it is liable to be canceled.

The plaintiff made contradictory claims, on the one hand she claimed that she had paid money in light of the brothers' financial situation and in return she was granted a gift, and on the other hand, in the lawsuit itself she claimed that it was a transfer of land without consideration.

• The plaintiff's affidavit lacks the element of acceptance necessary to complete the transfer of the gift, and there is no reference to her consent to receive the gift. In addition, certain affidavits are absent, the nature of the gift and its components is unclear, the undertaking for the gift was not made in writing, except for the affidavits, and no sale agreement was signed without consideration detailing the parties' will and discretion.
• Since this is an obligation to give a gift since the registration has not been completed, it is a contractual right that becomes obsolete after 7 years, so that the claim became obsolete as early as 2019.
• The lawsuit was even filed with considerable delay, in bad faith, while abusing the judicial process and attempting to enrich himself illegally.
• In accordance with Section 5(b) of the Gift Law, 5728-1968 (hereinafter: the "Gift Law"), as long as the transaction is not completed, it is an undertaking and can be withdrawn from it. Immediately after the signing, the defendant decided to exercise his right and withdraw his undertaking.  The defendant immediately notified this in a criminal appeal to both Attorney S.  and the plaintiff.  The defendant asked Adv. S.  to stop handling the transaction andAdv. S.  testified that he had told the tax authorities that the transaction should be canceled.
• The defendant's signature on an irrevocable power of attorney does not constitute a waiver of the right of return, and the defendant in his affidavit did not waive his right to withdraw it, a right that was exercised immediately after the affidavit was signed.
• The plaintiff did not take care to write a warning note in her favor and tried in every way to torpedo the defendant's retraction of the undertaking by refusing to sign an affidavit cancelling a transaction to the Tax Authority, andinstead disappeared for more than 12 years.
• The plaintiff knew, or at least should have known about the cancellation of the transaction, since she was asked to sign an affidavit of cancellation and therefore could not rely on the existence of the transaction. The withdrawal from the undertaking was made close to the signing of the affidavits, and for this reason the plaintiff could not rely on thegift.  The plaintiff never invested money in real estate, did not receive any possession or use of it, and did not change her situation for the worse following the commitment to the gift.  Accepting the plaintiff's claims that she did not save money for the purchase of real estate due to her reliance on the gift would in fact constitute the imposition of legal liability for private economic choices that have no legal basis.
• The plaintiff behaved disgracefully towards the defendant and, among other things, filed false complaints against him. Therefore, her abusive behavior deviated from reasonable conduct and according to the law justifies the cancellation of the gift.

1. Discussion:

Has it been proven that this is an undertaking to give a gift in the land?

16. First, the defendant's arguments, which are not mentioned in the statement of defense or in the affidavit of the main witness on his behalf, according to which this is an agreement for the sake of appearance and not a gift transaction, must be removed from the way.

The rule is that in order to determine whether it is a contract for the sake of appearance, it is necessary to trace the true intention of the parties at the time of entering into the contract as it is learned from the circumstances of the case, when the burden of proving that the contract was made for the sake of appearance only, rests on the shoulders of the person claiming it.  Due to the nature of the aforesaid claim, and in particular where the discrepancy between the implicit agreement and the overt agreement is intended to achieve an illegal purpose, an increased level of proof is required in order to substantiate it (see Civil Appeal 3805/23 Galina Goldenberg v.  Bar-Zan, Real Estate and Tourism in a Tax Appeal (Nevo, August 20, 2024) and the references cited therein).