See also: Civil Appeal 913/20 Ali Khalila v. Khaled Taha [Nevo] (9 June 2022); Civil Appeal 2786/18 Bachar v. Copperly [Nevo] (30 December 2021); Civil Appeal 8506/15 Richtman v. Cohen [Nevo] (10 April 2018).
- The case at hand was not one of the cases that justified intervention in the factual findings. The trial court ruled that the woman's testimony was coherent and reliable and that it was not contradicted. On the other hand, the appellant herself knew nothing of personal knowledge about the circumstances of the signing of the Brazilian agreement, nor did she know anything about the negotiations that took place between the wife and her parents in 2002, in order to persuade the woman to return to Israel. The judgment should therefore be approved by virtue of Regulation 148(b) of the Civil Procedure Regulations, 5779-2018, since there is no reason to reject the factual findings set out in the judgment; the findings that were determined support the legal conclusion and no error was found in the law. I will add a few emphasis more than necessary.
- In the present case, the result of the judgment is also consistent with the impression of the court that heard the previous proceeding in which the mother was interrogated. The conclusions of the trial court in the first judgment, which was also upheld by the Supreme Court, were that it was proven that the parents promised to give the woman an apartment in exchange for her consent to marry the man. Indeed, the mother was not a party to that proceeding, but the court referred to the mother's testimony and interrogation and reached this conclusion after hearing her version. Among other things, the first judgment held that: "... I was convinced that the defendant's family promised to give half an apartment and did not intend to keep its promise in advance... It was proven to me that in 2002 at the latest, the agreement was explained to the plaintiff, as if he relinquished it he would buy her at least half an apartment."
- Therefore, there is no interference in the factual determination that the respondent was promised by the parents that they would purchase an apartment after her marriage to the man, and in addition, the promise was repeated in 2002, in order for the wife to agree to return to Israel. Indeed, upon the couple's return to Israel, the apartment was transferred to them directly after it was handed over to the contractor and the couple lived in the apartment for 17 years without any appeal or doubt on the part of the parents and without paying them a worn penny.
- The trial court was not satisfied with the woman's sole testimony and found support for her. Among other things, the fact that the couple signed the Brazilian agreement that stipulated that gifts or inheritances would also be shared shows that there was indeed an intention to grant the couple an apartment. Otherwise, why would they sign the agreement? If there was no intention to give the couple an apartment as a gift anyway, why was the Brazilian agreement signed?
- In addition, if the parents did not intend to give the couple an apartment as a gift, why did they rush to get the woman to sign an Israeli agreement that stipulates a complete separation of property soon after her arrival in Israel? If they did not intend to give an apartment anyway, what is the point of signing a prenuptial agreement when the husband has no property? The court rightly saw this conduct on behalf of the parents as reinforcing the woman's claim that the parents undertook to give the couple an apartment as a gift.
- In addition, the fact that the woman agreed to return to Israel after she left Israel with the man in 2002 with the intention of settling in Brazil, after seeing that the promise to grant an apartment had not been fulfilled, also shows that in 2002 the parents again promised to grant the couple an apartment, and the evidence that in October 2002 the parents purchased the apartment and immediately upon the couple's return to Israel in early 2003, they moved into the apartment. The trial court rightly concluded that the fact that the woman agreed to return to Israel a year later after they returned to Brazil supports the woman's version that they were promised the apartment, and that is why the woman agreed to return to Israel.
- The main legal question that arises in this case is whether there was a "cry of fairness" that made it possible to overcome the substantive written requirement required by section 8 of the Real Estate Law and section 5(a) of the Gift Law. The case law began to establish "softening rules" for the written requirement, in order to prevent harm to the parties in good faith and in order to prevent a miscarriage of justice. It was determined that external evidence can also be relied upon for the purpose of proving that a transaction was executed even without any written agreement. As held by the Honorable Justice Barak, Other Municipality Motions 986/93 Kalmar v. Guy, IsrSC 50(1) 185 (June 12,1996):
" The use of the 'royal' principle of good faith to make the requirement of 'written' more flexible must be done with great caution. Only in special and exceptional cases is there room to rely on the principle of good faith in order to overcome the principle of writing. The characteristic of these situations is that they raise the 'cry of fairness' that justifies a deviation from the principle of writing. A closed list of these situations should not be given in advance. They certainly change according to the circumstances of life."
- Other Municipality Applications 8234/09 Shem Tov v. Kaduri, IsrSC 66(3) 60 (March 21,2011) The "cry of fairness" was activated in a case where there was no written document for the real estate transaction. In that case, the parties were relatives and believed each other and therefore did not draw up a written agreement, and despite the lack of writing, it was ruled that the transaction was valid and existed. It was held there: "The denial of the legal validity of the transaction due to the lack of writing is inconsistent with the principle of good faith, and by virtue of it, the transaction must be presumed to be valid... However, when it has been proven that it was the family relationship between the parties that was at the basis of the waiver of the written document and not the desire to defraud the tax authorities, the failure to report does not negate the existence of a 'cry of fairness' in this case."
- As noted by the Honorable Justice Willner Other Municipal Applications 1463/22 The Greek Patriarchate v. Himanuta [Nevo] (July 14,2025):
"Admittedly, case law recognized that in 'special and exceptional' cases, in which compliance with the written requirement raises a 'cry of fairness', a real estate transaction may be validated even without fulfilling this requirement, by virtue of the principle of good faith (Civil Appeal 986/93 Kalmer v. Guy, IsrSC 50(1) 185 (1996)). However, as I have already noted in one of the cases, "in light of the explicit provision of section 8 of the Real Estate Law, the existence of such a 'cry of fairness' should not be recognized except in the rarest of rare cases, in which there is very significant reliance on oral consent; and the party that repudiates it acts in extreme bad faith; so that the principles of fairness and justice 'cry out' that it is impossible to accept the result of a renunciation of the transaction" (LA 1270/23 Anonymous v. Anonymous, para. 27 [Nevo] (September 6,2023)). Indeed, this court did not recognize the existence of such a "cry of fairness" except in a few cases, in which there is an extreme lack of good faith on the part of the party who renounces the transaction, along with very significant reliance on the other party."
- The trial court was correct when it ruled that the case at hand was one of those exceptional and rare cases that justify the use of the "cry of fairness" that could overcome the lack of a substantive written requirement. The respondent relied very significantly on the promise of providing a roof over her head. She left her country, her homeland and her family and agreed to marry a blind man, 100% disabled, convert to Judaism and live for about thirty years in Israel, separated from her family, all in order to fulfill the man's dream and start a family with him. There is no need to say too much about the enormous sacrifice of the respondent and the heavy price she paid when she followed him to a foreign country, which she did not know at all. And now, when the relationship between the couple came to an end after thirty years, the mother, and then the appellant, sought to repudiate the promises to give the respondents a roof over their heads. As far as they were concerned, "the caregiver did her job, the caregiver can go." The behavior of the appellant, and before that the parents, is extremely bad faith. The parents denied the Brazilian agreement and signed the Israeli agreement, in order to deprive the woman of her rights in the apartment they promised to grant her and the man. As I held in the judgment in the appeal against the first judgment, "the concealment of the Brazilian agreement was a clear act of bad faith" (paragraph E8 of the judgment). Therefore, the judgment that ruled that this is a clear case in which the "cry of fairness" emanates in full force should not be interfered with.
See also: Family Case (Ashdod) 23265-12-19 Mother v. Her Son [Nevo] (August 3,2023), Family Case (Tel Aviv) 7662-07-18 Y.F. v. Anonymous [Nevo] (May 22,2021) and Cell (Jerusalem) 18706-06-11 Haim Zohar v. Tzvia Cohen [Nevo] (November 24,2024), in which it was held in section 61 that: "A determination now, thirty years after Chaim and Yehudit entered the apartment, that there was no agreement, and this against the background of the divorce between Haim and Yehudit, is inconsistent with the principle of good faith and requires recognition of the existence of the agreement, even though it was not made in writing."
- Indeed, the woman's claim was a claim against an estate and the burden imposed on her was increased. The trial court did not ignore this ruling, and after a careful examination of the evidence, including the external circumstances, it rightly ruled that the burden had been lifted. The trial court also did not ignore the woman's statement in its judgment in the hearing of the application for a protection order held on August 15,2018, in which she said that she had no rights in the house and interpreted them in such a way that her intention was that she had no registration right, and that it was "a description of a factual situation regarding the formal registration of rights, alongside a claim of substantive rights in the property by virtue of the Brazilian agreement." It should also be noted that in the same hearing, the woman was not represented and she said: "I am still married to her son for 30 years and I have rights. We had a prenuptial agreement that as soon as we are not in the partnership, he will take care of me."
- Even the fact that the woman did not defend herself against the eviction claim filed by the mother should not have acted in accordance with her obligation. As the trial court explained, claims regarding property rights in the apartment should have been clarified in a separate proceeding, as the woman did. The harassment that the woman underwent by the mother and the appellant should also not be ignored, including the alleged damage to her car, which led her to vacate the apartment without a struggle and without any other choice. The fact that the couple signed a rental agreement upon entering the apartment was also explained by the woman by the fact that this stemmed from the benefits that the man received as a result and was done at the request of the parents. The court rightly accepted this explanation and should not be interfered with in this either. In addition, the man never attacked the Brazilian agreement and the appellant cannot attack it in the framework of this proceeding, especially since no evidence was brought that it is invalid. In addition, the determination of the trial court that the woman's disgraceful behavior towards the parents or mother was not proven and that the respondent could have been granted relief even though he did not request it directly, since the relief against him is a necessary result of the relief granted to the woman and the man supported this and adopted the woman's position.
- In summary: I would propose to dismiss the appeal and charge the appellant with the respondents' expenses in the sum of ILS 25,000 each. The guarantee, with its fruits, will be transferred in equal parts to the respondents through counsel, at the expense of the expenses.
| Naftali Shilo, Judge |
The Honorable Judge Einat Ravid - the head of the court: