|
To: N. President M. Shamgar
Honorable Justice A. Goldberg
Honor M. Cheshin
Undermines: In Triumph International Ltd
vs
Respondents: Official and 1 receiver
Attorney S. .2. Ben - Meir, Slip joint company
Appeal the verdict the District Court
This document was translated by computer software without human contact, so there may be significant errors in translation: please do not rely on the translation without obtaining appropriate advice with a certified Israeli advocate / lawyer
Tel - Aviv - Jaffa dated 5.7.92 Bt.h. 8391/89 provided by Mr. President Dr. A.. Winograd
Named undermines: Attorney N. Y. Meltzer
For answers 1: in attorney M. Klibtz
Named reply 2: and himself
Stopped - Dean
Justice A. Goldberg: N. .1 undermines company, Triumph International, Ltd. (hereinafter in Triumph), a manufacturer of textile products, merchandise credit provided Slip Company manufactures lingerie, Ltd. (hereinafter and Sleep). Every shipment of goods supplied Triumph Slip shop attached Certificate of Delivery, Shalgva appeared the following conditions (hereinafter: N. restrictive condition): in "keeping with the goods Chennai detailed invoice / delivery certificate is Hinabbaloth exclusive of Triumph International Ltd until all outstanding costs and by then you are holding it in trust for Triumph.
Triumph allows you to do your business transactions during regular merchandise, provided
These instructions apply to all goods of value.
This permit can cancel at any time.
The invoice was explicit terms of reference limits, which read: and "terms of trade --
Go to ".
Similar provision was included in the agreement between Triumph Slip dated 20.2.90, entitled "Conditions
Tie trade relations ", which states: N
"Store goods provided by the 'Triumph' from time to time owned 'Triumph'. Ownership of the goods in question go to the store only after Pharaoh Triumph the full actual consideration for them until then, they are held in trust by the shop for 'Triumph'. Lib 'Triumph' agree that the store could sell during regular business and the goods in question, or receive some consideration provided for them will be considered fruits and / or changes of goods in trust store.
.2 After the dissolution of a request filed Slip, the court appointed accountant who bear the temporary joint. This job took eight temporary joint Slip's shop manufactures various products of Triumph Slip credit provided, and you did not pay for them.
Temporary joint Kama asked the court to order (ex parte) to sell the goods
Seized. All this without mentioning the allegations of Triumph, which were known to him, regarding ownership of the goods. Msnatr Court request, the temporary joint sold the goods.
When The Triumph, she turned to the court to order the joint Kama temporary return her the money he received from the sale of goods.
Kama Court rejected the request of Triumph, the decision is the subject of this appeal stated that Triumph is a normal creditor for debt due to her slip. It's because that "the power of conditioning left over on the - on invoices / shipping documents that affect the rights and joint merchandise goods for it belonged fund liquidation.
It should be noted that the temporary joint is no longer a party to litigation, since you can now order the dismantling of anti-slip, have built a permanent liquidator, he says No. 2 today.
.3 The request for temporary joint receiving the proceeds from the sale of goods seized, established Triumph of the provision limiting Manifest agreement. Under this condition is right, according to its claims, RECOVER of goods (in respect of debt relating to the same goods) priority over ordinary creditors of Sleep. It's the virtue of being owners of the goods, whether by mutual arrangement pleasure, and by working honestly and she had the goods.
.4 His decision to reject the request of Triumph Court Kama suspicious about law out from this court AE 455/89 (Colombo, food and drink Ltd. v. Trade Bank Ltd. et al, PD what (5) 490; follows: on planet Colombia).
Kama Court decision noted that: and
"Ruling - Dean Colombo has created a new situation in which parties who wish to condition the transfer of ownership sold to the actual final payment, can not settle by agreement under section 33 of the Sale. Hunt waist on the transfer of ownership they want this conditioning will be the third party, they must act in accordance with the provisions Companies Ordinance Act pledge ... not only Colombo ruling changed the law regarding the consignment transactions (Consignment), but judge you went to this expanded (halakhic Colombo ¬ AG) though other transactions, which aim to disguise the true character deal of bondage ... All we have to determine is whether the circumstances of the case before us immigrants (so!) consistent with the circumstances call decision - Court Colombo. and if we reach a positive conclusion, then we enter within the ruling - Dean Colombo.
After the court examined the claims of the parties Kama filings refer to him,
Concluded that Colombo did you go apply to particular circumstances.
He added that the court accepted it Kamma claim that "ruling - Dean Colombo is 'surgeon' or 'expands' the collision between Law and pledge allegiance Law. But the "decision - Dean Colombo also refers to the parties bargain deal call loyalty, and ruled - the law explicitly states that this deal falls hedged pledge of law."
5 present the result reached, not the court to decide Kama temporary joint claim (her reply came back No. 1 ahead of us) that the slip did not agree at all restrictive conditions. This argument relied on the deposition of age Vsrgalik, one of two directors of Sleep, that did not give him the terms of sale printed on the invoices, and never agreed to them.
Dina's argument was in any case be delayed.
Terms of the sale were visible to slip, and when she protested they should be seen to agree
Them. As CAC 323/78 (Castle Ltd. liquidation v. Black & Decker, to PD (2)
57,59: F
"... In terms of delivery expressly conditioned respondent, the goods were delivered to the ownership society in which the company will not go any more was not paid full price. The company could protest and say on which it was agreed between us, this condition I am not ready to agree, and Yes No I am willing to accept the goods; When I got the goods with the invoice and was silent, again can not be heard to claim that it received the goods. "
(See also AE 65/88 mantle Samaria Ltd. v. Holingsoort G.m.b.h., PD meter (3) 600, 609-611).
And certainly our case, when between the parties held lengthy commercial contact, which received
Slip shipment invoices which accompany many of the condition appears restrictive.
That should be added that denying knowledge of the terms of the sale comes only from one of its executives of Sleep.
.6 Prof. N. Salzman her essay "Property Law" (Book of the Year in Court Tsn"b - Tsn"g, edited by A. Rosen - a deer, was published by the district to Tel - Aviv's Bar Association - Court, p. 561 ) notes that "the ruling - Dino's House - Colombo High Court on a score - the important development of the law verse about the legal classification of the total credit sale transaction Conservation Section of ownership" (p. 574), and that "decision - Court brought about Colombo revolution in the commercial. mark - question about the force imposed conservation section of the ownership transaction sold on credit to ensure the right of a property known to other creditors of the buyer and causes confusion - surely trade my life "(p. 578).
Is it?
.7 The facts halakhic Colombo Colombo goods company ran the company "Mama Luxury", an agreement called the deal a consignment deal. Manifest also noted that "the merchandise is the property until full payment Colombo, consignment - a consignment". Company Luxury Mama ", encountered financial difficulties and has had a receiver. Columbia turned to the court that declare that the ownership of the goods provided is hers, and the right merchandise is withdrawn. Based on this agreement the said waybill consignment.
Court was the nature of a consignment contract, his conclusion was that: and
"This is not the purpose of the agreement held between the parties in the case Danan. It seems, motivated by cutting a consignment agreement in question was not afraid of the company 'Maman luxury, you can not sell the goods supplied Colombo ... cutting primary motivation was to ensure a consignment agreement, which - by cutting No such contract will be transferred ownership of goods to luxury mother, even the strongest merchandise will be taken over and the right to sell merchandise that rubbers parties. Although the parties themselves did not deny that the purpose of a consignment agreement was to protect the right of ownership of Columbia merchandise ...
Rising from here is that the consignment contract cut down on - to the ownership of goods remain by Klumbo until full payment is received for it. The aim was therefore to make sure, one way to Colombo will be safe, if 'Mamma Luxury' will not be able to repay the obligation in respect of goods ".
And because it means delaying the transfer of ownership of the goods was to keep safe for Colombo, then it's a deal covering the neighborhood. Da applies to such section 2 (b) pledge, 1967, which states: N
"Teaching this Law shall apply to any transaction intended to lien property as collateral for billing, will be the appointment of the transaction, which will be".
The Court adds that: in
"The birth of this provision lies in the common phenomenon of attempts, made parties to transactions in the neighborhood, to disguise the true nature of transactions that would cover legal, formally, that of slavery. For example, using formulas such as' sold back ',' Rent ',' loyalty ',' Consignment 'and more. These attempts varied tastes ...
Pledge law, section 2 (b) where, trying to deal with the phenomenon of disguising the said transactions in the neighborhood. The law tells us that there is to ignore the appearances of the deal and see if the substantive terms are intended to deal positively working property as collateral. If obvious conclusion, that deal is intended to work positively property as collateral (this is the case in front of us), then apply to the case law of the pledge - the legislative staff.
Because the court reached the conclusion that the pledge law applies to the case, apply to him the
Article 4 (1) of the pledge, "which discusses the rights of other creditors of the debtor, creditor's right over that pledge made in his favor, and the provision of Article 178 (a) Companies Ordinance (which is a special instruction began under Section 4 (1) Law pledge), which states: and
"Work from listed below, created by a company registered in Israel, will be off the joint and a creditor of the company, if he throws a guarantee on its assets or operating, unless the information set forth in the document creates a lien or testifies about it, if such a document, delivered to the registrar or obtained him, the said date in section 179, to register as required by this command; and Hshiabodim:
(1) ...
(2) ...
(3) Property Mitltlin lien, when the property is held by the creditor.
...".
Since pledge not registered with the Registrar of Companies, he catches "the joint company and to other creditors 'Mama Luxury', Colombia is not a creditor in relation to goods is guaranteed.
.8 So, you go not discussed in Colombo which was typical consignment, which "is not accompanied by delivery of assets retailer transfer ownership of them. This could go only if A committed to sell the property to a third party, or announcing that moves the will to buy the property absolutely or replace the agreed period or return option seems to use "(A. Zamir," Sales Law, 1968, edited by interpreting the laws of contracts John Tedesco, p. 59-60). Any interest of a consignment deal Colombo went disguised, that matched the real desire of the parties. If such a mounting section 2 (b) pledge, given the formal dress parties to the deal, if ownership remained when distributing goods by the supplier, agreed, as it were, the date for transfer of ownership retailer, as Article 33 of the Sale, Tsc"h -. 1968 Court rightly said halakhic Colombo (p. 497) that "can not be said at once, even the ownership of property not yet transferred charge, and who must inhabit the property for the creditor.
If a consignment deal was a typical, ordinary course of business and their daughter noticed, in the sense that ownership of the merchandise was not delivered Lkimaonai when shipped over, and as long as conditions do not take place that transfers to the ownership, there was no room to apply the provisions of law pledge. After that Hkimaonai Fshita he can not mortgage property not owned at all. If that was not inevitable that the parties stipulate that the ownership of the store at will not pass on delivery but at another time (see A. Zamir, where, on page 80). It's right about it, Dr. M. Deutsch when he says in "public property, freedom of property and compliance system - need model lines design" (Law כג (Tsn"d), 257, 266) that "Obviously, that went Colombo concerns situations in which a consignment is not - a typical '.
.9 Bhoserno case, although we asked the court asked itself halakhic
Colombo, whether express agreement between the heating Triumph Slip between gospel. That is, if not separated Triumph owns the goods when she gave it to slip, as stated in the agreement waybill. Or whether, the deal meant the enslavement of our business property as collateral for billing?
The tools which will use the court order to figure out the intention of the parties was
President Shamgar AE 196/87 (Sweigr N. Levy et al, PD Mo (3) 2, 19);
"... It is not necessary, the intentions of the commentary will pledge wording of the sales contract specifically: the deal as a whole can learn from several documents, or external circumstances, which have a direct impact on the nature of the connection ...
External evidence can be written, but may also learn about nature
Undertaking as a whole of evidence that are written ".
The circumstances of which you can learn about the true nature of the transaction was President
Shamgar below verdict (p. 20):
"... Things have been replaced during negotiations between the parties and pressure applied on the debtor (such as who was stopped repayment); existence of the debt before cutting the sales agreement and the continued existence of the debt after the conclusion of the agreement; provisions regarding payment of interest; height value specified in the agreement and the actual price paid , relative to the value of the property subject of sale; Continue holding a seller's property after concluding the contract and continue his control which, for example by upgrading, making repairs, paying taxes, etc.; statements sides and their behavior, even after the fact, as they throw on the real nature of the deal when cutting. .. It is understood that these considerations do not exhaust the test, and that these and other considerations will be given appropriate weight, if any, under the circumstances of the case ...".
.10 If there were diamond-shaped scales, I see a place to wonder "Why is there
Begin substantive economic justification for the transfer of ownership has not yet paid the value of the property? It is true that as long as no payment of the price addictive, does not come at an economic cost to the buyer, not sure ahead economically, but lack of economic justification for this supplier separate property owned before was made for it "(M. Deutsch, where, on page 270) .
But there are economic issues facing logic are facts that speak vs him, expressing
Different intention of the parties. I think that if indeed there are two Danan such facts.
One that explicitly states the agreement between the parties, manifested in "handsome tie trade relations",
That: "No exchanges or returns of merchandise. Hand not only to replace the goods in another, but also that her return merchandise for some. This condition says of himself that the delivery of the goods separately Triumph owned it. The second fact is that there was nothing to report Triumph Slip on goods owned inventory, and sales of goods. Fact incompatible with the way of those who faithfully delivering assets.
.11 Than our words that not since the sale of credit is in itself requires the application of Article 2 (b) pledge. To apply this section the court must give the mind the true essence of the transaction in question face Guidance parties underlying transaction (see above 196/87 AE p. 30; and Y. Weisman law pledge, Tsc"z - laws of contracts in 1967 mean, edited by John Tedesco, p. 72). It's that "Phone proof in this matter rests on claims that the sales contract is only part of the deal work" (AE 196/87 above, p. 21). only if proof of intent to work Property guarantee charge, have the orders of the Sale, he Disfozitibi law, to withdraw to the provisions of law pledge most of which are Kogntiot parties are unable to prescribe them (see the article by Dr. S. Lerner, "The nature of conditional sales", law calendar, 305, 314; E. Zamir, this book on page 80).
For that also I do not see a claim coming power of the learned that Triumph Triumph honest lien on the goods even though no regulations exist regarding the registration of the lien. So, did not come together with Law pledge with Section 178 (a) Companies Ordinance, but to give meaning to the principle of publicity in the property. It is said that:
"All is safe law Property law in general, to create a valid right vs third parties should be given some publicity to this right, to warn other creditors of the debtor or the property buyers to the existence of the earlier right may harm them" (AE 790/85 Airport Authority et al v. Gross et al, PD meter (3) 185, 212).
This matter see also AE 1226/90 Bank Leumi Le-Israel Ltd. v. Union rabbis
America (Paragraph 10), unpublished).
.12 Indeed, the result that requires registration even when it comes to stock business is not easy. For:
"If you want the company to sell parts of it, she will need to change the agreement Hmiscon, and, of course, have to change it at any time enter the new stock company. (Eyal Gabbay, in "safe for funding", Law pitcher (Tsn"d) 351, 361).
Hassle and costs associated with constant changes in the registry lien must be asked about ongoing commercial activity. Another question concerns the type of lien recorded, having charged him to ensure the supply of retail pay the price for the goods he sells his credit occasionally. Jan Sales Law gives a solution to all this, when he sold a set to handle credit transactions. Just as no solution is found by order of the companies. Sales bill, Tsc"h - 1965 (the "תשנ"ה p. 276 p. 281), clarified that the law does not discuss the special issue of selling on credit if the form ¬ rent passing acquaintance, or maintaining ownership of the seller or just by Payments Bshiorin "Csbtzd statement is" a promise "not fulfilled, that" this issue will come on handling special law ".
In our case we are required to give an answer to problems proprietorship, and we have but to join according to Prof. N. Salzman (her article mentioned above on page 580) that the legislator should give him "the status of credit known as lien sale, arrange the whole issue."
.13 Merits of the appeal, Dinu be delayed, positively undermines pay each of the respondents' attorney's fees only -. 000, NIS 3.
Judge
President M. Shamgar:
I agree. I also joined a comment about necessity of legislation clarify boundaries more sharply and remove unnecessary obfuscation.
President
5129371 Judge M. Cheshin: I agree. Judge
In his ruling, as was decided by Justice Goldberg. Given today, as Elul תשנ"ה (18.9.95).
Wording is subject to change and formulation changes
|
ADVOCATE ISRAEL
