The witness, Mr. Y. Grossed: Clearly, Emanuel Dayan and Luzon.
Adv. Sadeh: Emanuel Dayan and Luzon.
The witness, Mr. Y. Grossed: Yes, they worked on me with the eyes that I am a very nice person and I wanted to encourage them, they came to my house, ate at my house a few times, they kept pulling and pulling.
Adv. Sadeh: Actually, what they did, they deceived you, that's what you said unequivocally.
The witness, Mr. Y. Grossed: Yes oh because we will bring Philip Starck and we will bring it and we will also do a hotel upstairs.
Adv. Sadeh: They showed you that there is money in France endlessly and in the end no money came.
The witness, Mr. Y. Grossed: But when there is money to invest in a property and make it a beautiful property"
(page 156, lines 24-34 of the minutes of May 21, 2024).
And:
"The witness, Mr. Ya. Grossed: Because they invited me in France, you talked earlier about the French connection, they invited me in France, they showed me what evening they invited me to a restaurant called (it's not clear), it's related to the chain, they showed me that they have a lot of equity, it's a big company, 64 restaurants, equity of 20 million euros or something like that, yes, to give me the feeling that I'm not going to sign with people who don't have a head.
Adv. Gerson: I got it, and what was your impression?
The witness, Mr. Y. Grossed: He supposedly has money.
Adv. Gerson: Okay and that's why you signed with them?
The witness, Mr. Y. Grossed: One of the reasons you sign with a tenant is that you first want to know that your property will be held properly and secondly that the rent will be paid on time(page 129, lines 12-22, Ibid.).
- From the testimony of the plaintiff's husband, which I found to be completely reliable, it appears that the plaintiff's husband did indeed place full trust in the defendant who described his ability to him, invited him to a restaurant in France, where he described his connections to a successful restaurant chain in France as well as his wealth, all in order to convince him that the deal would go through. However, the legal question is whether such conduct by the company organ amounts to tort tort or subjective bad faith. In my opinion, the tort of negligence, fraud or theft has not been proven to me, nor has there been a subjective lack of good faith.
- When analyzing the entire process, it appears that the defendant's intentions were not malicious and he did intend to realize the vision of a restaurant and hotel, but these encountered reality and an inability to realize the vision. I was not convinced, and no evidence was presented to me that his conduct throughout the entire process was deceitful and with the aim of harming the plaintiff. The fact is that even after the deal ran aground in 2017, both the plaintiff and the defendants did not give up and continued until the end of 2020 in an attempt to realize the vision, and did not even insist on the 6-month date for the start of the renovation and even gave a discount during the Corona period. Therefore, at the stage of signing the agreement and breaching it, I do not find that the burden of proof to prove the defendant's personal liability has been lifted.
- At the same time, in my opinion, the defendant's conduct after the cancellation letter in January 2021, when it was already clear that the defendants were unable to carry out the project to which they were committed, and that they did not have the money to pay the rent and fulfill the agreement, was conduct in bad faith. After the cancellation letter, the subsidiary, in which the manager and the living spirit is the defendant, approached the court in an attempt to stop the plaintiff from acting to reduce its damages and to try to finally generate a proper revenue stream for such a special property, as described by Ido Porat, CEO of the new tenant. This attempt to stop the plaintiff from engaging with the new tenant did not succeed andthe court did not grant the injunction requested. However, the very act of turning to the court in these circumstances constitutes a lack of good faith when the defendant knew that he was unable to implement the agreement, thathe had not been able to realize it for such a long period of time, that he was accumulating rent debts that he could not repay, and yet he tried to stop the plaintiff from signing with another tenant. Such conduct is in bad faith and could only have caused additional damage to the plaintiff. Just because no injunction was issued, the agreement was not cancelled and the plaintiff was not prevented from fulfilling the agreement, which continues to this day for the benefit of the parties, then no damage was caused for which the defendant must compensate.
- Therefore, despite the dissatisfaction with the defendant's conduct in the last aspect detailed above, I do not award an amount to which he will be charged personally and the claim against him is dismissed. However, due to his conduct as aforesaid, I will not entitle him to the expenses of this proceeding, despite the dismissal of the lawsuit against him.
Conclusion
- The claim against defendants 1-2 is accepted. At the same time, there is no reason to charge defendant 1 for the amount to be determined in this judgment, because in her case a debt claim was filed in the insolvency case.
- Defendant 2 is obligated in the following amounts:
For the second damage (agreed compensation) - the sum of ILS 305,800, together with linkage differences and interest from the date of filing the claim until the actual payment.