(b) As long as the recipient of the gift has not changed his status in reliance on the undertaking, the giver may withdraw it, unless he waives this permission in writing.
(c) Except as stated in subsection (b), the giver may withdraw his obligation if the retraction was justified by the disgraceful conduct of the recipient of the gift towards the giver or his family member, or by a significant deterioration in the giver's financial situation." (Gift Law, 5728-1968 - Nevo Database).
- Against the background of the provisions of the aforementioned section, I will examine the plaintiff's claim before me.
Is the defendant entitled to withdraw the gift by virtue of the provisions of section 5(b) of the Gift Law?
- In accordance with the provisions of section 5(b) of the Gift Law, the right of return of the giver of the gift, as long as it has not been completed, is not limited in its reasons as long as the giver of the gift has not waived it in writing, and as long as the recipient of the gift "has not changed his situation in reliance on the undertaking" (see also Cell (Haifa) 9616-05-17 Hashibon William v. Official Receiver, Haifa District (September 3, 2020)).
- The purpose underlying this normative arrangement is to leave the power in the hands of the giver of the gift to retract his obligation, under the provisions of the section and as long as the granting of the gift has not been completed, as aforesaid (see, for example, Civil Appeal 2836/90 Betzer v. Zilevitz, IsrSC 46 (5) 184, 194; In Tax Appeal 4778/17 Anonymous v. Anonymous (July 2, 2017)).
- In our case, the plaintiff, being represented, signed an affidavit of gift, in which he explicitly stated that: "My departure as aforesaid is final and there is no retraction from it, and it binds me and my heirs after me, and I sign this affidavit after its contents have been explained to me in Arabic."
In other words, the defendant explicitly and clearly stated in the affidavit of the gift that he could not withdraw the gift.
- Moreover, the defendant even signed an irrevocable power of attorney, in which it was also explicitly stated that: "... It will be irrevocable, I/we will not have permission to cancel or change it, and its power will be valid even after my death, and it will also bind our heirs, guardians and executors of our estates."
The settled rule is that as a rule, and in the absence of other evidence, an irrevocable power of attorney constitutes evidence of the gift giver's waiver of his right to withdraw his obligation (see Tax Appeal 4778/17 Anonymous v. Anonymous (Nevo, August 2, 2017), in Tax Appeal 3948/14 Anonymous v. Anonymous (Nevo, July 16, 2014), Civil Appeal 404/84 Anonymous v. Sa'ati, IsrSC 41(2), 477, Civil Appeal 493/91 Mizrahi v. Mizrahi IsrSC 50(1) 199, Civil Appeal 2941/14 Hoshan v. Abdallah (Nevo, March 1, 2016), Civil Appeal 87/914 Nachshon v. Nachshon (Nevo, 5.5.2016), Civil Appeal 7323/18 Besher v. Besher (Nevo, 6.8.2020), Family Appeal (Haifa District) 55156-10-19 Anonymous v. Anonymous (Nevo 22.1.2020) Family Appeal (Central District) 32367-08-22 A.B. v. Z.B. (Nevo, January 30.2023)). In other words, the plaintiff's signature on the irrevocable power of attorney establishes a prima facie presumption that he has waived his right to withdraw the gift without cause, but the giver of the gift has the opportunity to present evidence that contradicts this presumption.
- I was of the opinion that in our case there was no contradiction as to the defendant's waiver of the gift without cause. I will explain my reasons.
- First of all, in the statement of claim and in the affidavit filed by the defendant, the defendant did not make factual or other claims that could contradict the explicit waiver in both the affidavit and the power of attorney.
In the statement of defense submitted by the defendant, and all of the transaction documents held by Attorney S. have not yet been disclosed , the defendant denied signing the power of attorney and casually claimed that he had not waived the right to withdraw the gift in the gift affidavit.