The defendant denies that the plaintiff is in good faith, mainly on the grounds of lack of good faith and on the claim that she cannot be in proper possession of a check for a beneficiary only of two beneficiaries. She further claimed that the contractor filled in the details in her presence and showed her that he had written the check only for the company's order, and only in retrospect did she find out that he had also written the name of the plaintiff on the check as a repayee. In the decision of June 9, 2024, the defendant was given permission to defend himself.
Discussion and Decision
The Burden of Proof and the Presumption of Consideration in the Banknotes
- The plaintiff "holds a deed" and hence stands in her right to the presumption set forth in the presumption Section 29(b( To the Banknotes Ordinance: "Anyone who holds a bill is presumed to be in good standing." However, according to the conclusion of Section 29(b( According to the Banknotes Ordinance, if the defendant proves that the receipt or issuance of the bills was impaired by fraud by coercion or violence and fear or illegality, then the duty of proof is replaced until the plaintiff proves that after that fraud or illegality, the bills were given in good faith and in favor of the bills. The case law expanded the defects in the deed to any defect in the right to property, including the failure of full consideration and the non-fulfillment of the condition. (See, Civil Appeal 425/78 Migdal HaEmek Local Council v. Iron Factory Ltd., Piskei Din 33(1( 304 (1979().
The issues of a person being a proper holder of a note are found in section 37(2( of the Ordinance, which states that "if he were in good standing, he is in possession of the note when it is free from any defect in the property of the parties before him, as well as from any purely personal defense claims that they had among themselves, and he can enforce his payment on any party who is responsible according to the note", and thus the proper holder receives a right that is better than that of the person who transferred the note to him. The defendant must specify what his claim is against the deed, and what is the defect in the property right that he claims to have, and he is obligated to prove these claims. If the defendant proves his claims, the burden shifts to the plaintiff to prove that after the same defect occurred in the property right, he gave a value in good faith for the deed. The plaintiff proved that he was acquitted, even though a defect in the right of property was proven (Y. Sussman, Laws of Banknotes, Sixth Edition, 1983, at p. 262). As long as the defendant has not proven the fraud, the plaintiff is sheltered in the shadow of the presumption that he is holding properly, and is not obligated to prove anything.