This conduct is puzzling in the eyes of the court, since insofar as the plaintiff claims, the defendant "drags" him and ignores him during the running period for many months, but it is logical that he should ask the defendant whether funds are being set aside for the trust in accordance with the agreement dated 01.01.2020. This conduct strengthens the defendants' claim that there was no agreement between the parties on the agreement dated 01.01.2020, which was written by the plaintiff and reflected only his wishes.
- When in May 2021 the plaintiff received an email from the defendant in which he asked to remove himself as a partner in the company on LinkedIn, including the work that had been performed, he initially answered a number of questions that he did not remember what he had done in the matter (p. 17 of transcript S. 3-12) until finally he admitted on page 18 of the transcript S. 4 that he had not removed from LinkedIn his definition as a partner in the company until the date of the hearing.
Moreover, despite the defendant's request that the plaintiff remove his definition as a partner in the company, the plaintiff did not see fit to reply to him an email that in view of the agreement dated 01.01.2020, he was entitled to define himself as a partner in the company, even if only for a certain period.
The plaintiff's convolution on the witness stand with a large number of questions on this specific issue left a bad impression in the court, which was joined by a sense of unreliability in the plaintiff's statements, since the plaintiff knows very well whether or not LinkedIn removed the advertisement that he was a partner in the company, and there was no need for a large number of questions until an answer was received.
- From the plaintiff's version, as it emerges from his affidavit and testimony, it can be understood that according to him, the acceptance of the offer by the defendant was oral in the framework of a meeting on 07.01.2020 in which no one else was present, and after which there is no summary or signature on the agreement dated 01.01.2020, which raises many questions, which are not answered.
Thus, for example, it is not possible to find in the agreement of 01.01.2020 a response and details on the following significant issues:
- What does the definition of the plaintiff's position as a "deputy manager" include?
- What does the division of duties between the plaintiff and the defendant include?
- Who will bear the expenses of managing the company during the run-up period, including the salaries of the company's employees?
- What is the plaintiff's obligation in the partnership to the defendant and to the company?
- How will the parties participate in the profits of the company/partnership, if any, during the Run Period and at the end of the Run Period?
- What will happen if the company incurs losses or debts during the running period?
- Who will bear the costs of losses or debts during the running period?
- What share will the plaintiff have in the partnership at the end of the running period?
- How will the sum of ILS 15,000 be set aside for the trust in the language of the agreement, if there is consent by the defendants to this mechanism? Will the sum of ILS 15,000 be set aside every month as claimed by the plaintiff in his claim throughout the period of the trial, and what is the basis for this, or is it a one-time sum as the agreement says?
- And most of all, at the end of the running period, which is supposed to last about 6 months, if the parties decide to separate - is this a "dissolution of the partnership" when a partnership has not yet been established?
- Notwithstanding the plaintiff's claim that the defendant introduced him to everyone who met with them that he was his partner, when he was asked why he did not bring even one testimony or an affidavit of another person to declare that he was indeed presented as a partner, he did not have a logical answer - see p. 20 of the transcript of paras. 23-36, and he did not even mention the name of a single person to whom the defendant introduced the plaintiff as a partner.
In accordance with the case law, when the plaintiff refrains from bringing even one witness to testify, who, according to the plaintiff, the defendant presented him to him as a partner in the company, this is acting in accordance with the plaintiff's obligation, and this establishes a factual presumption that if the plaintiff had summoned that witness to testify, he would not have supported the plaintiff's version (see Y. Kedmi on the evidence (vol. 3, 1999) at p. 1391).
- When the plaintiff was asked in his cross-examination regarding the promotion and development of the company and the partnership by the plaintiff, he replied that he did not serve as the company's business development manager, but rather the defendant, and the plaintiff admits that he did not bring support for all the meetings, presentations, marketing, etc., which he claims acted for the benefit of the partnership and the company, since this has no meaning for him to the claim - p. 21 of the transcript of paras. 32-39. This is inconsistent with the requirement of the case law detailed above.
- Later in the cross-examination, counsel for the defendants hurled the plaintiff's own transcripts of the recordings, which were attached as evidence on behalf of the defendants, and asked:
"Adv. Hochman: Good. During your conversations with Dobby, as shown in the transcript, you talk about an outline. Dubi tells you that there was no and was not created, Dubi tells you we didn't agree on anything, Dubi says we didn't talk about money. Dobby says no, no, no, no. I would have said to him, 'Come on, you're a piece of a liar. You're just a liar. Why where is it in everything, where are you a liar? It's not what you're talking about, we shook hands where where is it in all these recordings, where are you saying the sentences?