Professor Yosef Gamzu v. Na’ama Yeshayahu

The appellant owed the respondent and her daughter a maintenance debt that had accumulated to about 1.25 million New Shekel, having previously failed to pay regular maintenance and child support payments to his wife and daughter.  Being unable to afford this amount as a lump sum, he sought to have the Head of the Execution Office exercise his authority (under s. 69(e) of the Execution Law, 5727 – 1967 (the Law)) to refer the parties to the Family Court, so that the appellant could apply to the Family Court to pay the debt in installments.

The Law authorized the Chief Execution Officer to refer the parties to the Family Court for an order allowing payment of the maintenance debt in installments if “special reasons” could be shown. At first instance in the Family Court, and then on appeal to the District and eventually the Supreme Court, the main issue was the correct interpretation of “special reasons”. The Appellant argued that his financial difficulties constituted a special reason, as allowing him to fall into poverty as a result of the debt would violate his right to dignity under the Basic Law. The Respondents argued that only the possibility of debtors’ imprisonment could be considered a special reason, as otherwise, the Appellant would be able to indefinitely delay the payment of debts that had already been overdue for some time.

The appeal was accepted and the case was remanded to the District Court to consider the prescription of installments for the payment of the maintenance debt.

In reaching this conclusion, the Court considered the special character of the maintenance debt. Because it supported “a spouse, minor children, disabled persons or parents, whose sustenance and day by day existence is dependent upon them,” it was granted priority over other forms of debt. Imprisonment for debt could therefore be imposed, not as a means of punishing the debtor for non-payment of the debt, but as a means of preventing parties with means from hiding assets from collection.

However, a balance needed to be struck between the competing interests of debtors and creditors. While all debtors, and even more so maintenance debtors, were required to discharge debt judgments, even the fulfillment of a maintenance debt could not justify encroaching upon the “hard core” of the debtor’s dignity. As such, the Chief Execution Officer could refer the parties to the court to request payment of the maintenance debt in installments, if  “special reasons” such as preventing the imprisonment of the debtor could be shown.

The Court held that there was no justification for limiting these “special reasons” to the danger of imprisonment. While the latter was certainly a typical and actual danger, it was not the only danger confronting the debtor. The debtor’s destitution or inability to access basic needs such as food, shelter or medical care was at least as much an infringement of dignity as loss of liberty.  As such, “special reasons” existed in any case where it could be proven to the satisfaction of the Chief Execution Officer that a debtor would be unable to sustain himself without payment by installments. These criteria were met in this case.

In his concurring opinion, Justice Englard distinguished between various categories of maintenance debt. His Honour considered that a maintenance debtor who failed to discharge his duty to provide the ongoing subsistence needs of his family should be treated strictly. On the other hand, there was room for leniency with a debtor who was no longer obligated to provide for his family and whose debt related to the distant past. Under these circumstances, the debt lost its original character and was closer in essence to a regular judgment debt. This consideration constituted an additional reason for being more lenient with the appellant.

“The special goal that prevents harming the life of  the debtor, is accompanied by the general goal of protecting the human dignity and the freedom of the  judgment  debtor … This goal is anchored in the Basic Law: Human Dignity and Liberty. “Human dignity encompasses, as we have seen, protection of minimalhuman subsistence (see HCJ 161/94 Itri v. State of Israel (not reported)). A man living on the streets and is without housing, is a man whose human dignity had been impaired; a man starving for food is a man whose human dignity had been impaired; A man deprived of access to elementary medical treatment is a man whose human dignity had been impaired; a man compelled to live in humiliating material conditions is a man whose human dignity had been impaired … This is true for the dignity of a human being and true for the dignity of the debtor who is unable to make timely payment of the judgment debt, and this is  true for  dignity of the debtor  bound by a  judgment debt for maintenance.” Para. 20.

"The court must exercise its discretion in a manner that does not harm the minimal human subsistence of the judgment creditor, without harming the minimal human subsistence of the judgment debtor. To be precise: The point of departure is the debtor’s obligation to perform the judgment and to pay maintenance, notwithstanding the difficulty involved. The rights of the judgment creditor and the public interest dictate that result. Still, there may be cases – which the debtor bears the onus of proving - in which insistence on the creditor’s right and the public interest will impinge upon the minimal subsistence of the debtor, and it is incumbent upon the court to prevent this. Once again, the goal of the procedure is not to alter the amount of the debt. Its goal is to ensure that the adjudged debt will be paid in installments in a manner that does not detract harm the debtor’s basic ability to maintain himself." Para. 23.