In terms of considerations of procedural good faith, the defendants argued wholeheartedly that the clause does not change the liability regime "jointly and severally", and at the same time they made another claim, ASher does not agree with this argument, regarding the binding status of the card in the realm of material liability. The defendants continued to hold the two claims at the same time, Even when this difficulty was overwhelmed by them. In these circumstances, the defendants should not be allowed to evade the necessary result of their first claim, which acts in favor of the plaintiffs and enables them to obtain the amount of the debt determined in the invoice, and the interpretation leading to this result should be preferred (and compare to judicial silence that prevents the raising of contradictory claims in the same proceeding as well). Civil Appeal 4401/21 Amitai v. Kreuz, paragraph 60 (15.11.2023)).[8] Such a preference is also consistent with the rule of "interpretation to the detriment of the drafter", since the impression that emerged from the testimonies was that the defendants were given priority in shaping the terms of the agreement (see Section 25(b1) to the Contracts Law).[9] Moreover, it seems that it is consistent with the explicit argument of the accompanying women in their statement of defense, that "the reference to clause 6.6... is only for the purpose of conversion to individual collateral" (page 4 of the statement of defense of the lenders; and see also the testimony of Boaz Barzili on behalf of the lenders on page 52 of the transcript of the hearing of September 10, 2025, lines 28-29).
- In the margins of this matter, I will note that their claim regarding the change in the liability regime set out in the first and second agreements, was supported by the plaintiffs. The plaintiffs claimed that in the card each group member was attributed a debt out of the total debt in respect of the two agreements, although there is no dispute that clause 6.6 did not explicitly refer to the debt by virtue of the first agreement. According to them, this shows that at that stage the defendants also believed that the liability regime was different in relation to all the loans.
However, the signatory of the card is the group committee, while the defendants provided the documents that underpinned that card, including regarding the total amount of the debt (see, for example, Appendix 2 to the affidavit of Boaz Barzili on behalf of the lenders, and his testimony on pages 47-50 of the transcript of the hearing of September 10, 2025). The decision of the group board to divide the entire debt among the class members by virtue of the two agreements, which presumably has been done In order to facilitate payment by all members, Inna Teaches Therefore that the defendants also believed Because The liability is separate, in a way that will prevent them from collecting the full debt from all the members if necessary.
- The plaintiffs referred to clause 12.5 of the partnership agreement between the class members, which stipulates that a future agreement with a financing bank will include a provision that the liability is not reciprocal. According to the plaintiffs, this justifies interpreting the first agreement and the second agreement in a manner that minimizes as much as possible the mutual liability stipulated in them.
Indeed, the sharing agreement indicates that The members of the group wanted their future liability to be separate. However, already in that agreement it was determined that in the end the liability will be "in accordance with and subject to terms to be agreed upon with the bank." Also, since the agreement Share The members of the group encountered significant difficulties in raising bank financing, and from Mr. David's testimony it emerged that they understood the need to be flexible in order to enable the establishment of the venture (see, for example, page 72 of the transcript of the hearing of September 10, 2025). In any event, the sharing agreement cannot replace the provisions of the first agreement with the lending company and the second agreement with the lender that were entered into afterwards, which clearly state that the liability is mutual, jointly and severally.
- Another argument raised by the plaintiffs is that in the additional agreements, which were signed by some of the group members after the termination of the venture, the defendants exempted the signatories from their liability jointly and severally, and were satisfied with their liability for the individual amount attributed to them in the invoice. According to the plaintiffs, by virtue of section 55(c) of the Contracts Law, the plaintiffs should be considered to be equally exempt.
This argument is also unacceptable, in my opinion. Section 55(c) Himself determines, The exemption given to one of the debtors jointly and severally will also apply to the other debtors, "Except if the exemption implies a different intention." In the case here, it is clear that the defendants' agreement to exempt the signatories of the later agreements from their liability jointly and severally stemmed from those agreements, which reflected a mutual waiver of claims, as stated in the paragraph 14 above. This consent is not intended to apply to those who have not signed these agreements. On the contrary, it emerges from the agreements that the defendants' consistent position was that the liability of the class members is jointly and severally, as determined in advance in the first agreement and in the second agreement.
- The conclusion, therefore, is that the plaintiffs are jointly and severally liable for the balance of the debt of the class members by virtue of the first agreement and the second agreement,[10] and that they are entitled to raise claims regarding the amount of this debt (except in proceedings to erase the lien in the framework of the realization of the agreement). I will now turn to these arguments.
(2) The total amount of the debt under the first agreement and the second agreement
- As already noted, in view of the conclusions of the court's expert, at this time the plaintiffs are no longer raising claims regarding the scope of the sums that were made available as loans. The plaintiffs' claims focus mainly on the amount of interest calculated by the defendants for each sum provided, and to a lesser extent on the classification of the amounts between the various parts of the loan in the second agreement (in view of the differences in interest rates relative to each part).
- Before I go into detail about the arguments and calculations regarding each amount, we must address the defendants' argument that the very fact that their calculations regarding the total amount of the debt were accepted by the group committee and the professionals on its behalf, as reflected in the card, shows that this is the correct calculation according to the consent of the parties (see the defendants' summaries on page 24 of the transcript of the hearing of September 18, 2025, lines 8-24).
This argument should not be accepted.