Also Section 19(a( The Ordinance states:
"If the note is missing a material detail, the person holding it has prima facie permission to fill in the gaps as he sees fit."
Therefore, there is a presumption that the defendant gave permission to the contractor to register the plaintiff's name as a payee, and the burden is on her to prove that the deed was not filled out in accordance with her authorization. (See Civil Appeal 546/61 Shalom Schwartz v. Yitzhak Circass, IsrSC 16 1300 (1962), to which the plaintiff's counsel referred).
As stated above, a review of the deed does not show that a change has been made in it, and therefore it is presumed that the registration of the plaintiff's name as a payee was done with the knowledge and consent of the defendant.
In the Yehuda case, Civil Appeal 1886/97 supra at p. 139, after it was determined that the holder of the note was properly held, and although it was a case in which the drawer of the check drew a check on the part and handed it over to another, the status of the proper holder was clarified:
"In the case before us, the appellant and the respondent are distant parties. There is no fundamental deal between them. The closest parties are the respondent and Arik on the one hand, and Arik and the appellant on the other. Indeed, the case before us is a clear case of a person who is a distant party to the drawer. In the appellant, the trial court held, the rest of the conditions of the grip are met. Therefore, even if Arik committed fraud against the respondent, and even exceeded his authorization, the respondent is not entitled to raise these claims against the appellant. She must direct these allegations against Arik (who fled the country)."
It appears that from a legal standpoint, even if the contractor exceeded his authorization, this does not prejudice the plaintiff's right as a proper holder to repay the check. Admittedly, the defendant's argument is captivating that a deed for the beneficiary alone cannot be paid by another person, but if she wanted it to be paid only by the contractor, she should have filled out the deed herself and registered it only at the contractor's order, and not left the task of completing the check to the contractor. When the defendant issued a deed at the behest of a distant party to the transaction, it took the risk that that distant party would be able to repay the deed even if no consideration was given to the defendant, to the extent that the plaintiff would gain the status of a proper holder. It is possible that the defendant did not fully understand the legal situation and the risk of registering the plaintiff's name as a payee in the check, but this lack of knowledge does not affect the plaintiff's status as a proper holder.
- Moreover, beyond the legal aspect, the defendant did not prove that the deed came out of her hands without the plaintiff's name as the payee. In her affidavit, she in fact raised contradictory claims, claiming that she had handed over the check to a signed contractor, and he filled in the details in his handwriting. Later she declares that he showed her that he had written the check to the company's ordinance and that she only learned in retrospect that he had added the plaintiff's name as a payee. In paragraph 24, she added that after handing over the check, Oren told her that if she was contacted about the check, she was asked to confirm that she had given the check and that he was building a house for her.
The impression from this version is that this is a futile attempt to create a factual version, and to pin legal arguments on it after the fact. The version that the defendant knew from the contractor that she would be contacted in connection with the check, means that in real time, the plaintiff's name was already registered as paid and the defendant knew that the contractor intended to contact the plaintiff, otherwise why would he inform her that she would be called? The conclusion is that the defendant knew, or should have known, that the check would be paid by the plaintiff.