Since the burden is on the defendant to prove this factual claim, and she sufficed with a meager version that is the only testimony of a litigant, I have not found that her testimony can suffice to prove this claim. Therefore, the defendant did not prove that a change in the check was made without her knowledge or consent. Moreover, as will be expanded below in relation to the preliminary conversation, the plaintiff in fact confirmed that she had given the check to the plaintiff's order, as the transcript shows, the plaintiff's representative Assi goes over the details of the check with the defendant and asks: "For the benefit of Chai Maor Towers or Opel Balance check number 23" and the defendant replies: Yes.
This confession has substantial weight, and in law, the plaintiff's counsel referred in his summaries to a civil appeal (Tel Aviv District( 21630-02-18 Opel Balance (2006( Ltd. v. Irina Pravlov, [Nevo], October 2, 2018, with respect to the weight of a party's confession in the preliminary conversation to the discounting transaction, which, contrary to what was claimed in the defendant's summaries, the circumstances of which are very similar to the case at hand.
Therefore, it is not clear how the defendant believes that it is possible to accept her version that she did not provide a check in which the plaintiff is listed as payee, and I have not found any basis for her factual version. It should be noted that the defendant showed a lack of familiarity with the details of the contract with the contractor and did not give sufficient explanations as to the scope of the sums it paid, and in fact repeated the claim that the contractor was deceived. Therefore, it is more probable that she was not sophisticated enough not to agree to register the plaintiff's name as paid in the check, since in practice she did everything that the contractor instructed her to do.
The Provision of Value and the Date of Consideration
- In fact, there is no dispute that the plaintiff received the check before the due date and gave consideration for it, even though the defendant also denies the consideration in its summaries. I did not find any basis for this denial, and the plaintiff, who in any case enjoys the presumption of consideration, presented sufficient evidence to prove that she gave consideration. The weak question marks presented by the defendant do not have the power to contradict the plaintiff's evidence.
The plaintiff's affidavits were attached to the receipt of the discount dated May 3, 2022, in which it was noted that a bank transfer had been made to the Maor Towers living account in the amount of ILS 225, 000, and the instruction to the bank was attached to the transfer to be made. First, an account statement was also attached, which was claimed to have been mistakenly attached, and the reference to the transfer of funds to the Maor Towers live account was attached with the court's approval. Mr. Mizrahi testified about the consideration that was made, and his cross-examination in this matter did not change the obvious conclusion that consideration was paid for the check. Therefore, the presumption that the plaintiff gave value in respect of the check was not contradicted, and moreover, the plaintiff proved that she gave consideration for the check before the date of its payment and the failure of the consideration.