The controversies in the gas shell
- While reviewing all the arguments of the parties and the evidence that was placed before me, I was required to decide the following substantive questions:
- Was the alleged sum of ILS 3,750,000 actually paid, and if so, what was paid for?
- What was agreed upon by the parties regarding the manner in which the consideration was recorded in the books of Paragon.
- What were the terms of the concession agreed upon between the parties, if it was agreed, and whether it was given to the plaintiff and/or to an exclusive partnership in marketing.
- Whether the agreements between the plaintiff and Paragon regarding the marketing of the latter's products were violated, and by any of them.
- Whether the agreements between the plaintiff and Mr. Alfasi were violated, how and by whom.
- The damage caused to the plaintiff and the balance of the debt alleged in his relationship with Mr. Alfasi.
The purpose of the funds transferred to Paragon
- The initial and basic question that should have been addressed in the present proceeding was for what the partnership paid the sum of ILS 3,750,000 (insofar as it paid).
- As stated, according to the plaintiff, this sum was paid in exchange for receiving an exclusive, non-exclusionary franchise for the sale of Paragon's products in Israel. I will add and clarify that the plaintiff chose not to distinguish between the question of granting the franchise to market the defendant's products and the content and scope of that franchise. This is not the case, and these questions will be examined by me later.
On the other hand, the defendants claimed that the sum was not paid for the purchase/acquisition of a franchise but for the purpose of repaying the debt of the previous marketer, Mr. Nahmias, and as a condition for allowing the purchase of the products from Paragon.
- In this regard, I will preface by noting that the evidence of the parties indicates that there is no dispute between them as to the fact that during the years of their joint activity, various sums were paid to Paragon in a total scope exceeding ILS 3,750,000.
The question, therefore, is not whether the aforementioned sum was paid, but for what it was paid, and consequently how it should have been recorded in the books of accounts of all the parties (the plaintiff, the partnership and defendant 1).
- In order to decide this dispute, I asked to consider all the relevant evidence, when it was expected that first and foremost clear agreements between the parties would be presented, in writing.
- Unfortunately, such an agreement was not presented and the testimonies of the parties indicate that no agreement was ever signed between them for the granting of a franchise for the sale of Paragon's products, an agreement for cooperation of any other kind, or even a document of agreements regarding the assignment of rights/obligations of the previous marketing entity, Mr. Nahmias.
- I am aware of the plaintiff's claim that the concession agreement was an oral agreement (in this regard, see also paragraph 9 of the plaintiff's summaries). From the perspective of the provisions of the law, there is nothing to prevent this agreement from being concluded on the basis of oral agreements.
However, this is an argument that in itself raises considerable questions and difficulties where it would have been expected that a plaintiff who defined himself as a "businessman" would see fit to put in writing, even if by e-mail, the details of the terms that he himself currently claims to have been agreed upon between the parties, including the fact that the franchise is non-revocable; the provision of an ongoing and irrevocable credit facility by Paragon in the amount of approximately ILS 4.5 million for a period of several years; granting a permit to the partnership to sell the concession at any time and in any amount without objection on the part of Paragon, but for special and weighty material reasons and the fact that the franchise is such that it can be inherited (see s. 17.1.4-17.1.6 of the plaintiff's affidavit, his testimony at p. 25, s. 34, p. 26, s. 5 of the minutes of the hearing of December 7, 2022; p. 39, s. 7 and p. 49, s. 33, p. 50, s. 8 of the minutes of the hearing of December 7, 2022, and p. 5 of its summaries).