And later on:
"I'm an actor. Give me everything by tomorrow and I'll get all the money I owe you by the end of the week.
Also tell me how much interest you want for the year of the delay and I'll pass it on to you."
- In his testimony as well, after he was shown the aforementioned WhatsApp message, Rafi confirmed the existence of the loan agreement and admitted to violating it. Thus he said on page 97 of the minutes of March 19, 2025, question 28:
"True, there is an agreement and I was late because I didn't."
(See also p. 98, paras. 5-7).
- In other words, both in real time and in his testimony, Rafi confirmed the existence of the loan agreement and its terms, including the fact that the loan bears interest. Rafi did not raise any claim in real time that this was an ostensible agreement or an agreement whose terms were different from those agreed upon and put in writing in the loan agreement.
- Even if we follow the defendants' approach, the differences between their version and the terms of the written loan agreement are two: one, that it was agreed that Sarel and Shahar would receive the repayment of the loan personally and not excalibur, and the second, that the loan does not bear interest.
- The defendants rely on their claim that it was agreed that Sarel and Shahar would receive the repayment of the loan personally based on Shahar's testimony on pages 212-213 of the transcript of March 17, 2025. However, it is evident from his testimony that he himself did not distinguish between the repayment of the loan to him and to Israel and the repayment of the loan to the company, when he claimed: "True, the company is us, that is the intention" (p. 212, s. 10).
The written loan agreement was signed at the end of the day between Excalibur and RBA. In accordance with clause 10(3) of the loan agreement, the agreement represents all understandings between the parties "and supersedes any previous discussions, negotiations, or documents regarding the subject matter of the agreement." Therefore, even if it was orally agreed that Sarel and Shahar were the lenders, the terms included in the written agreement prevailed over that agreement.
- Beyond that, it is not clear why the defendants are concerned about the identity of the beneficiary who is entitled to receive the loan repayment. The loan is supposed to be repaid in any case. The lender, according to the loan agreement, is an accelerator, the loan money was transferred from her account and she is the one who is supposed to receive the money transferred from her account, back. If Excalibur does not have a bank account, it will be its responsibility to find a way to repay the loan.
- As for the interest, the claim that it was not agreed that the loan would bear interest at all was not proven. On the contrary, Rafi admitted that the loan carries interest and that the interest will also be paid for the period of delay.
- In any event, even if the defendants were to prove that different terms were agreed upon between the parties than the written terms, this is not a claim that a loan was not given at all, but rather that there are other agreements, in only two matters, that are different from those expressed in the written agreement.
- This situation was defined in case law as a "relative simulation", according to which there is a hidden contract behind the contract, which the parties intend to fulfill and which represents their intentions (see: Civil Appeal 4009/22 Noam Katz v. Shelly Ben Attia, para. 12 (Nevo, October 18, 2023) (hereinafter: "the Katz case");
- In situations of "relative simulation", case law recognized that a transaction can be validated as long as the hidden contract is consistent with the provisions of the law (see the Katz case, paragraph 12). Since no claim has been made and in any case no claim has been proven that the "hidden contract" is illegal, even if two of the terms of the loan agreement are different (and as noted, this has not been proven), the loan agreement remains in effect. This is especially so when these two conditions do not meet the core of the agreement, since the very granting of the loan and its amount have never been denied.
- To this, of course, must be added the fact that these are claims in a criminal appeal against a signed document, with all that this entails.
- In light of the above, the argument that the loan agreement is an agreement for the sake of appearance is rejected. The written loan agreement is the binding agreement between the parties and the parties must act according to it.
- In accordance with clause 3 of the loan agreement, the loan will bear interest from May 17, 2016 (the "date of the attacks") until the "date of applicability", which, in accordance with clause 4 of the agreement, is one year from the date of the attacks or when one of the assets is sold. Therefore, it is possible to add interest to the loan principal at a rate of 10% for only 12 months.
Is Rafi a personal guarantor for the repayment of the loan?
- According to the defendants, Rafi is not a personal guarantor, since in accordance with clause 5 of the loan agreement, the "borrower" provides a personal guarantee as collateral for the execution of the loan agreement, while the "borrower" according to the preamble to the loan agreement is RBA.
- According to the email message of May 15, 2016 that Sarel sent to CPA Vatori, one of the conditions for providing the loan is the provision of a personal guarantee as collateral for its repayment.
- As stated above, CPA Vatori confirmed in her testimony that she drafted the loan agreement in accordance with the terms as detailed by Sarel in the email. She added:
"Sarel sent me the data for the loan, the main data of the loan, and Rafi asked me to prepare a loan agreement based on these conditions, and what I did was put this data on a template of a loan agreement that I had ready, with another loan that Rafi had made in the past, and that ended my job."