Mr. Alfasi further claimed that in real time, not only did the plaintiff not object that he would continue to work with Paragon, but that he even encouraged him to do so, if only in order to reduce the damages caused to him as a result of the parties' joint activity.
- In this dispute between the parties, I find a distinction to be made between the question of payment of the consideration for the transfer of the shares of Shira to the plaintiff, and the question of the existence of an undertaking on the part of Mr. Alfasi not to continue to compete with the plaintiff.
- With regard to the payment of the sum of ILS 650,000 in respect of the purchase of the shares of Shira, the parties' arguments will be discussed later in this judgment, but I will add and clarify that where it has not been proven that this consideration was indeed paid by the plaintiff to the defendant, in any case he should be considered as having breached his obligations to Mr. Alfasi, and is prevented from claiming breach of contract by the opposing party.
- With regard to the very existence of a non-compete undertaking, there is an interpretive dispute between the parties regarding clause 23 of the partnership agreement.
All of this is where an examination of the section shows that it is prima facie concerned with regulating the relationship between the parties during the existence of the partnership and not necessarily afterwards, and with the prohibition of competition with the management company (which does not exist) or with the partnership which, as aforesaid, has dissolved, or at most with Shira Company.
The plaintiff was asked in the course of his cross-examination whether section 23 relates only to the partnership and replied as follows:
"No. To the partnership and to society. We dismantled the partnership and the company together."
When the plaintiff was later confronted with this statement, in contrast to his claim that the obligation to him was directly breached, he replied that in his opinion, where he is the owner of Shira, the breach should be regarded as such that it was committed against him (p. 43, para. 23 of the minutes of the hearing of December 7, 2022).
- Additional questions were addressed to the plaintiff in the course of his cross-examination regarding the existence of an undertaking not to compete in the activities of the partnership after the termination of the parties' relationship (as opposed to an undertaking during their joint activity).
I found the plaintiff's answers on this matter in the cross-examination to be lacking, while in the end he argued that there was no need at all to include the undertaking of either of the parties not to compete in the activity of Shira or the partnership after its termination, since Paragon had to protect the plaintiff from acquisitions by third parties (p. 44, paras. 9-10 of the minutes of the hearing).