As stated, the plaintiff relies on the claim that she is in good possession and thus overcomes any claim that the defendant has against the party closest to the deed.
The Ottoman Settlement [Old Version] 1916
12-34-56-78 Chekhov v. State of Israel, P.D. 51 (2( The Basic Transaction - Has the failure of consideration in the transaction between the defendant and the contractor been proven?
- Despite the lack of detail in the defendant's version and her and her husband's lack of memory regarding the question of consideration and the conduct vis-à-vis the contractor, and despite the fact that the claim of failure of consideration was almost abandoned in the defendant's summaries, which referred to this matter only in a concise and almost incidental manner, I found that in examining the general picture it should be determined that the defendant was able to prove the failure of consideration vis-à-vis the party closest to the note, the company and the contractor.
The plaintiff, who devoted a significant part of the investigation and her arguments to the question of the failure of the consideration, is well aware that the contractor in fact defrauded many customers, and within a short time left a considerable amount of debts to many creditors, and fled the country. In such circumstances, there is no room to be precise with the defendant and to demand details of the works for which the check was given, since, in examining the totality of the transaction, the claim that payments were made to the contractor in excess of the consideration to which he was entitled was not contradicted, and therefore the defense's argument should not be regarded as a partial failure of indefinite consideration, as in the case of defective goods being supplied, but rather as a failure of full consideration, since no consideration was given against the check in question.
As will be clarified below, the examination of the failure of the consideration, which is indeed a basic condition for the defendant's defense, is in fact not necessary in light of my conclusion that the plaintiff is in the position of a proper holder, and therefore as far as she is concerned, the question of whether the consideration failed does not increase or decrease it. Despite this conclusion, I will detail below why the failure of the consideration was proven.
- The defendant's claim is simple, she paid the contractor payments in excess of his contractual right, in violation of the agreement who set milestones for the payment of consideration according to Progress of the work. In fact, in exchange for the check in question, no work was done and no consideration was given. In the agreement attached to the objection, it was determined that the work would begin within 30 days of receiving the building permit, and only the second page of the payment schedule was attached, with a table of payment dates and the construction stages. According to this table, a total of ILS 935, 000 will be paid until the end of the third stage, the pouring of the upper ceiling, and an additional ILS 345, 000 will be paid in the completion of the electrical, water, air conditioners and blind lintels systems, and then another 4 stages until delivery.
The defendant's evidence was accompanied by documents on behalf of the company, receipts and invoices, as well as copies of checks attesting to the execution of the following payments to the company: