A gift agreement?
- The plaintiff attached a copy of the alleged gift agreement to the statement of claim. The problem is that the plaintiff, for reasons reserved for him, did not attach that agreement to the evidence submitted on his behalf. Except for the testimonies of the declarants, to which I will refer below, In the framework of the submission of the exhibits, no written evidence was presented to prove the gift agreement. The report to the tax authorities of the gift agreement or the confirmations of payment of taxes, which were attached to the statement of claim, were also not brought as evidence.
The case law held that the starting point in claims to enforce a real estate transaction is that the plaintiff must present the agreement on which the transaction is based, in light of the written requirement set forth in section 8 of the Land Law (see: Civil Appeal 7119/08 Haimi v. Shamir [published in Nevo] [September 6, 2010]). In the same matter, the buyers, who sought to enforce a sale transaction, did not present the sale agreement, since they did not have it. The reason for the fact that when the transaction was executed, the agreement remained in the hands of the lawyer who drafted the transaction. Therefore, it was held that the starting point "presents a considerable difficulty to the respondents when they come to establish the cause of action, especially in view of the substantive written requirement set forth in section 8 of the Land Law". However, it was ruled in that case that "this is not an insurmountable hurdle in the sense that the presentation of the written agreement is not a condition without which its existence cannot be proved. Thus, for example, where the plaintiff is able to show that a written agreement was created and concluded but was lost, or that the plaintiff is unable to present it for various reasons beyond his control, then the plaintiff will be able to prove with secondary evidence the content of the written agreement as well, and his claim will not fail only because of the fact that the document itself is not in his possession." On the basis of an examination of the evidence in that matter, the court reached the conclusion that a written agreement had been made.