ATTAL AND WAICH
farha bent rahel emeno
On the dispute regarding the register of creditors of Mrs. Farha bent (Arabic for daughter) Emeno, the wife of Ezra Hettena:
Whereas it is undisputed that, by a contract of 27 June 1889, Etienne Lombardo was acknowledged to be indebted to Th. Jourdan for 16,000 francs and to guarantee his debt he gave a mortgage on land with two houses, situated in Port Said;
That, under an agreement of 30 November 1889, Lombardo sold the mortgaged property to Ezra Hettena;
That, by a deed of 13 July 1892, Mrs. Farha bought out Jourdain who subrogated her in all his rights arising out of the contract of 27 June 1889.
That by virtue of this deed of subrogation Mrs. Farha proved as an interim creditor;
Whereas the appellants Youssef Waich and others, mortgage creditors of Ezra Hettena for 2100 Pounds under a mortgage imposed following a judgment of the Alexandria Commercial Court dated 23 February 1895, contested Mrs. Farha’s status of creditor in impugning the deed of 13 July 1892 as an avoidance, maintaining that the 16,000 Francs had been paid by Biriotti, on behalf of Farha, to the account of her husband Hettena, and in other words, that it is the latter in reality who bought out Jourdan.
Whereas it is not, within the scope of a Paulian action, admissible for creditors subsequent to the act impugned to contest its validity ;
That it consists simply of an avoidance;
Whereas it has always been the legal doctrine and case law that creditors can strike down acts of avoidance by their debtors, provided that they have an interest in the matter and that it is not essential that their rights be prior to the act of avoidance nor that the act was fraudulent, it being sufficient to establish that the act was prejudicial to their rights;
Whereas the appellants invoked the following two fundamental arguments in order to establish that the contract dated 11 July 1892 was an avoidance:
- That Hettena ensured, in order better to lead the third parties astray, that his wife was named in the deed only by her maiden name and not by her married name.
- That in 1892 Mrs. Farha lived in Manchester and that she was unable to say how she would have sent the 16,000 Francs to Biriotti who proceeded on her behalf to buy out Jourdan, nor where, in Port Said, she would have had the funds or where the agreement of 13 July 1892 was made;
That additionally the appellants maintain that Mrs. Farha never had monetary resources and put her to proof;
Whereas the arguments put forward by Youssef Waich and others are insufficient in themselves to prove that the act impugned was an avoidance;
That it therefore appropriate to admit their testamentary evidence, the facts to be established being pertinent and avoidance inter parentes being a presumption of fact.
Concerning the proof as a creditor by Cassa di Sconto di Risparmio, transferred by an order subject to appeal by Didia Baruch and four other assignees, Moïsé Gaan, Adolphe Schaifr, Israël and Zondanos:
Whereas the proof as a creditor by the Caisse d’Epargne on behalf of Didia Baruch arises from a mortgage imposed pursuant to a judgment of 27 October 1894, against the debtor Ezra Hettena, subscriber to the two aforementioned notes, endorsed in favour of the Caisse d’Epargne;
Whereas Youssef Waich and others the notes as equally being avoidance, and submit in evidence:
- That Baruch has never had monetary assets and has never been in a position to support the amount of the instruments endorsed by him to the Cassa di Sconto e di Risparmio.
- That the same Baruch in 1896 applied for survival aid to the Jewish Community of Alexandria.
That this evidence is warranted in the circumstances of the case, that is:
That the notes were subscribed some time after the formation of the alliance between Hettena, Chalom and Attal;
That disagreements arose between the associates;
That proceedings took place before the British Consul in Alexendria;
That among other transactions, Hettena arranged for John Hop in Manchester to obtain a loan of 2100 Pounds to give to Attal on Hettena’s behalf, and that John Hop assigned his debt to Bachi and Waich who, having issued a summons against Hettena, obtained judgment against him on 23 February 1895 for 2100 pounds in the Alexandria Commercial Court.
That finally none of the four creditors of Baruch of which he spoke, proceeded or were represented;
ON THESE GROUNDS:
Alexandria, 8 March 1899.
Presiding Judge Bellet.
(2) See order of 5 February 1891 (Bull., III, 175)
(3) See order of 15 November 1803 (Bull., VI, 15)