Part Three - Discussion and Decision
- Overview
- At the outset, I will note that the king's way of enforcing judgments is by taking execution proceedings or by taking proceedings in accordance with the Contempt of Court Ordinance [see Other Municipality Motions 1351/06 Moeen Daoud Khoury v. The Bishop's Palace Company (Qasr Almutran) in a Tax Appeal (September 17, 2007, Ass. L. Judge E. Rivlin, Judge A. Rubinstein, Judge D. Berliner) (hereinafter: "The Bishop's Palace Case)")]. However, if for any reason the judgment cannot be enforced by the king's way, or if the king's way is not effective and practical, the litigant claiming non-compliance of the judgment may file a new claim on the basis of the ground established by the judgment in his case [the case of the Bishop's Palace; Civil Appeal 4272/91 Yosef Barbi v. Freddy Barbie, IsrSC 48(4) 689 (November 8, 1994, Judge D. Levin, G. Bach, A. Matza)].
- In addition, I will return to the question that must be decided , according to which it will be necessary to address the fact that the defendant agreed and it was even determined that it would transfer to the plaintiffs an area of 34 square meters that was taken from their share of the lot. In this regard, the judgment here will discuss the question - when the defendant chose to allocate to the plaintiffs a remote area that was detached from their share, was it conduct in good faith? Did the defendant violate the provisions of the agreement between the parties and hence the provisions of the judgment?
In the following paragraphs, three reasons will be presented, each of which is sufficient to lead to the acceptance of the claim.
- The first of three reasons for accepting the claim - the defendant's conduct is a clear lack of good faith, an action that is 'cleverness' and even an act of force
- At the beginning and at the end of the day, the parties left the courtroom of the Honorable Judge C. Haft in the framework of civil case 49046-03-20, knowing that an area of 34 meters would be transferred from the defendant and her late husband to their neighbors - the rights holders in the second half of the lot. And one more thing should be said - at the beginning and at the end of the day, the defendant, together with her late husband, stole 34 square meters of the plaintiffs' land. And now, after the law has already been exhausted, the defendant, with the help of some of her children (another part knows that he must return the theft), is trying to raise clever and improper claims in order to preserve the fruits of her wrongdoing. Just like that.
- The judgment must be observed in good faith, certainly when the judgment adopts agreements between the parties. Agreements that even by virtue of contract law must be fulfilled in good faith, without an attempt to empty them of their content and without cunning ways that are raised with lip service of an attempt at a distorted legal interpretation. In this regard, see Civil Appeal 8273/16 Fundacio Gala-Salvador Dali v. Ace Marketing (Israel 2005) in a Tax Appeal (July 11, 2021, H. Meltzer, Judge D. Mintz, Judge Y. Willner) where it was held with respect to the nature of a settlement agreement that received the force of a judgment as follows:
"The premise is that a settlement agreement that has received the force of a judgment is of a different nature than that of a 'regular' agreement. This type of agreement is of a dual nature. It merges the features of an agreement and the features of a judgment... A settlement agreement that has received the force of a judgment is therefore a "hybrid"...."