"... "Implicit" intention includes in it... the "intention of the mitzva"... It seems to us that this "intention" also extends itself to the study of a thing from a thing - as is the way of a wise man ("and a wise man" who understands a thing from a thing: Sanhedrin 93:72) - and in this way the court will instruct itself with common sense, justice and honesty.Civil Appeal 1182/90 Shaham v. Rotman, at p. 339).
(See also Civil Appeal 4714/90 Weisfeld v. Weisfeld). The tools for extracting "implied intent" from an agreement, from the circumstances of its conclusion and its purpose, are to learn one thing from another with the help of common sense, justice and honesty. The same is true in our case."
- In our case, Naveh refrained from disclosing the divorce agreement with Hani for reasons of violating his privacy. However, the essence of the matter emerged from his testimony before me:
"In the meantime, in the Family Court and I am talking about a time range from March 2019 to June 2019, we reached a hearing before the Honorable Judge Makkais, we reached an arrangement that removes all of these in the Rabbinical Court, and an agreed notice was submitted to the Rabbinical Court, and the Family Court gave us a judgment that approved the entire property issue in June 2019, including the process of determining the judgment and the alimony, and the court awarded alimony under section 79A without reasoning, and therefore what Adv. Zilberbaum claims and tries to present is inaccurate.
- Did your settlement agreement include a waiver of claims?
- Yes. Including tort claims that Hani asked to be included in an agreement that I would not sue in such a lawsuit, for example."
(Par. p. 102, paras. 2-9)
- What emerges from Naveh's testimony is that in June 2019, a few months after the opening of the proceedings in this case, he and Hani reached a property arrangement that includes refraining from suing against her, including tort grounds. If so, this is not an exemption of obligation in the sense Section 55(c) to the Contracts Law, but in an agreement not to sue. The things that have been determined are appropriate for this By President A. Barak Other Municipality Requests 610/94 Buchbinder v. Official Receiver in his capacity as liquidator of the Bank of North America, IsrSC 57(4) 289,302 (2003):
"The principle of departure is that the directors are liable to the bank for a breach of the duty of care imposed on them as members of the board of directors "jointly and severally" (see paragraph 32 below). With the obligation "jointly and severally", the rule applies according to which the exemption of the creditor to one of the debtors exempts the other debtors, "... unless the exemption implies a different intention" (section 55(c) of the Contracts (General Part) Law, 5733-1973). Such an intention is implied if the injured party (the bank) grants the tortfeasor (director) a personal exemption (see D. Friedman, v. Cohen, "Multiple Debtors" Law of Obligations - General Part (hereinafter - Friedman and Cohen, at p. 289). Personal exemption can take different forms. One of the accepted forms in Israel is that of a "non-suede agreement". When this is the content of the agreement, "the exemption implies a different intention, " and that exemption does not release the debtors from their liability towards the injured party (See M. Ben-Porath "Extinction of Cause of Action by Release or Convenant not to Sue")."
- This conclusion, according to which a different intention is implied by the exemption, is strengthened by two things: the existence of the claim at the time of drafting the divorce agreement of the Naveh couple and its geometric location in the framework of the dissolution of the family unit in the Family Court. All of these indicate that we are dealing with a personal exemption, and not an exemption of one debtor from many, in which case the other debtors are also discharged (Civil Appeal (Hai District) 651/08 Gagin v. Epstein, paragraph 23 (Nevo 5.9.2011); Daniel Friedman and Nili Cohen, "Multiple Debtors" Liability Law - General Part, 155,285 (Daniel Friedman, ed., 1994)).
Given that this is a personal exemption, I reject the defendants' argument regarding their exemption from the obligation against Naveh based on the divorce agreement with Chani.
- This is the case with regard to the defendants' alternative claim in the matter Section 83(b) to the Torts Ordinance. In this regard, the Authority has ruled on a civil appeal 4474/20 Nun v. Hershkovitz, paragraph 17 (Nevo 1.11.2020), For a distinction must be made between a compromise that releases the other wrongdoers and a situation in which the right of the injured party vis-à-vis the permit is preserved (see also: Civil Appeal Authority 8037/23 Captain Shabtai v. Alon Tiberias Tours Ltd., paragraphs 11-12 (Nevo, March 27,2024)).
In our case, there was no "settlement arrangement" intended to repay the damages, but rather a divorce agreement that also included a condition of refraining from filing a tort claim. Hani also did not mention in her testimony before me that she paid or received concrete sums for this component. From her testimony it appears that the divorce agreement was a comprehensive arrangement, in which the couple agreed to refrain from lawsuits: