(Transcript of March 19, 2025, p. 24, paras. 19-23).
- CPA Vatori also confirmed in her testimony that she was not told that one of the terms included in the email was not agreed upon by either party, and that she had in fact accepted the terms as stated by Sarel (transcript of March 19, 2025, p. 25, paras. 6-8 and 13-17).
- Two of the assets specified in the loan agreement are properties directly owned by Rafi (the property in the Blue and Rishpon projects - see transcript of March 19, 2025, p. 93, paras. 14-19). Even after the date for repayment of the loan had passed, Rafi offered assets, not owned by RBA, as collateral for the repayment of the loan (see Appendices 19-20 to the affidavit of Sarel and Rafi at p. 95, paras. 10-15).
- From the aforesaid it appears that the intention of the parties was that Rafi would be a personal guarantor for the repayment of the loan, and the evidence is that in real time, Rafi did not claim that he was not a personal guarantor for its repayment.
- Although the loan agreement states that the "borrower", which is the RBA, is a personal guarantor, there is no logic that the borrower, who is the main debtor in the agreement, should be a guarantor of its obligations.
- The essence of the guarantee as defined in section 1 of the Guarantee Law is "the undertaking of a person to fulfill another person's obligation towards a third person", i.e., there is no identity between the guarantor and the debtor, for the purpose of ensuring the fulfillment of his obligation, the guarantee was given. Therefore, the argument that RBA is a personal guarantor for its obligations is also inconsistent with the law (see also in this regard: Civil Appeal 706/74 Yehuda Yaroni v. Jerusalem Loan and Savings Association, Mutual Association Ltd., et al., IsrSC 29(2) 365, 374).
- It appears that the source of clause 5 of the loan agreement is a clerical error due to the use of a previous agreement (as CPA Vatori testified), and it does not reflect the intention of the parties. This can also be learned in light of the fact that in the "second reason" of the agreement it was stated that the loan amount was received in the account of the "borrower", and there is no dispute that the loan amount was transferred to Rafi's account and not to the RBA account.
- Therefore, I determine that Rafi gave a personal guarantee to ensure the repayment of the loan.
- With regard to the argument that in accordance with section 8 of the Guarantee Law, it is not possible to demand from the guarantor his guarantee without first demanding from the principal debtor the fulfillment of his obligation, the case law interpreted the obligation to contact the principal debtor in a very limited manner, and determined that it is sufficient to send a warning to the principal debtor only a short time before contacting the guarantor, and that there is no need to take legal proceedings against the principal debtor as a precondition for demanding the debt from the guarantor (see: Civil Appeal Authority 550/12 Model Engineering Building Company in Tax Appeal v. Aviv Shaked (Nevo, 21 July 2013)). Since there is no dispute that a warning letter was sent to the principal debtor - RBA (Appendix 21 to Sarel's affidavit), the duty of prior application to the principal debtor has been fulfilled and there is no impediment to demanding his guarantee from the guarantor (Rafi), while the principal debtor refuses to repay the debt.
The Offset Claim
- In accordance with the provision of section 53 of the Contracts Law, a condition for offsetting is that the debts are reciprocal, i.e., they are the same parties who are indebted to each other.
- In our case, the parties to the loan agreement are Excalibur, RBA and Rafi for his personal guarantee. The parties to the coin lawsuit, in which the offset claims were raised, are Rafi and Adirim, on the one hand, and Sarel, Shahar and companies under their control, on the other.
- Hence, there is no identity between the parties and therefore the condition of reciprocity set forth in section 53 above is not met.
- In order to overcome this, the defendants raised two arguments: first, that there was an agreement to offset;
and second, that there is room to lift the veil and attribute all the rights relating to our matter to Rafi, Sarel and Shahar themselves, in accordance with the provisions of section 6 of the Companies Law.