אי-חוקיות, מראית עין או משכון מוסווה? (בעקבות ע"א 6634/15 טופ במרחבי השרון ייזום בע"מ נ' קפלן)

In Top Be‘merhavei HaSharon v. Kaplan, the Israeli Supreme Court held that contracts that purported to be for the sale of land were actually contracts for the sale of apartments to be built on that land. Thus,they were determined to be contracts for the sake of appearances and illegal. Consequently, the contracts were void, and the purchasers were entitled to restitution.In this case-note, the authors argue that the contracts were not made for the sake of appearances, but rather they were meant to create a security interest in the land. While the behavior of the parties was problematic, it should not have rendered the transaction illegal and void. Furthermore,the authors contend that the outcome of the judgment is incompatible with policy considerations regarding illegal contracts. Beyond the circumstances of the specific case, the authors discuss the criteria for there solution of cases that lie in the intersection of the three doctrines:illegality, contracts for the sake of appearances, and contracts that are meant to create a security interest.