On the other hand, from Appendix D to the plaintiff's affidavit - the BDI report of Shira, which was prepared for the purpose of obtaining a loan and which was allegedly signed by the plaintiff and by Mr. Alfasi - it appears in general that Shira is the owner of the franchise.
The plaintiff was asked in his interrogation who provided the data on the franchise for the purpose of preparing the report and replied that it was a clear figure that he did not remember who provided it (see p. 52, paras. 6-9 of the minutes of the hearing of December 7, 2022).
At the first pre-trial meeting in this case on June 11, 2018, it was clarified by the plaintiff, through his counsel, that there is evidence indicating that the company and the partnership are the sole concessionaire (see p. 2, paras. 6-7 of the minutes of the hearing of June 11, 2018).
Support for this can also be found in the plaintiff's testimony that Shira is the one entitled to receive the commissions from Supersol, for the sale of goods directly by Paragon, and it is also the one that is entitled to receive discounts that will come from Paragon, with his approval (see p. 42, paras. 19-31 of the minutes of the hearing of December 7, 2022).
When the plaintiff was asked about the contradictions in his version with regard to this issue, he further claimed that as the shareholder of Shira Company, he gave it permission to use the franchise belonging to him (p. 39, 33-35 and 40 s. 1-6 of the minutes of the hearing of December 7, 2022). However, this claim of the plaintiff was not supported by any evidence, and in any case there is a factual and legal gap between the question of the identity of the franchise owner and the entitlement of that right holder to assign it to another.
- The plaintiff's answers to the question of who paid the consideration for the franchise also contained contradictions. Once the plaintiff claimed that he himself paid most of the amount, except for the sum of ILS 650,000 that was paid to Mr. Alfasi (see p. 50 s. 24-25 of the minutes of the hearing); another time he claimed that he paid the entire sum (p. 51 s. 11-12 of the minutes of the hearing of December 7, 2022); and another time he testified that it was the partnership that paid for the franchise, i.e., the plaintiff and Mr. Alfasi together. and when the person who managed the system with Paragon was Mr. Alfasi, and he transferred the payments through him or through Shira (see pp. 41, 19-20, 26 and 42, 15-18 of the minutes of the hearing of December 7, 2022).
- Nahmias's testimony also revealed that the sum of ILS 3,750,000 was paid by the plaintiff and by defendant 2 and not by the plaintiff alone (in this regard, see p. 57, para. 19 of the minutes of the hearing of December 7, 2022).
- Where the plaintiff alone is the petitioner today to receive the various remedies from the defendants, the question marks enumerated above, regarding the identity of the payer, are sufficient to substantially erode his claiMs.
- Another question that should have been addressed was the rate of the amount paid for the franchise. As stated, the plaintiff claimed in the statement of claim for payment of a total sum of ILS 3,750,000.
However, the plaintiff did not present any evidence from which it could be concluded that this was the amount that was actually paid for this purpose, and all the contradictions and question marks enumerated above are also joined by additional question marks as to the purpose of the funds, or more precisely with respect to the question of whether the funds that were actually paid were intended for the purpose of purchasing the franchise as claimed by the plaintiff or whether they were used, in whole or in part, for other or additional purposes.
- Already from the plaintiff's affidavit, it was difficult to understand whether his version was that he paid the sum of ILS 3,750,000 in full for the purchase of the concession, or whether it was for the purpose of covering Mr. Nahmias's debt to Paragon, in connection with the purchase of goods (with the implications that derive therefrom), or for existing inventory.
- It also emerged from the testimonies of Mr. Dershewitz and Mr. Alfasi that the partnership's engagement with Paragon was conditional on the coverage of Mr. Nahmias's debt to Paragon, since the plaintiff and Mr. Alfasi came to Paragon with Mr. Nahmias himself and sought to step into his shoes and purchase his business, including his marketing system, customers, etc. (see the testimony of Mr. Dershwitz at pp. 48, 20-24 and 52, paras. 1-7 and 14-22 of the minutes of the hearing dated April 19, 2023, and the testimony of Mr. Alfasi at p. 95, s. 33 - p. 96, s. 3 of the minutes of the hearing, dated 21.2.2024).
- Dershewitz testified that Mr. Yadin and Mr. Alfasi paid Mr. Nahmias's debt to Paragon until it closed and then continued to buy goods from Paragon:
"... They paid for Nahmias's debt, until Nahmias's card was closed they paid... They bought Nahmias's inventory and the postponed checks that the customers had. They took everything they owed him from Nahmias. They got the debtors, let's say he had a million shekels in debt, and he had inventory. They took it from him and paid his debts. But they got the inventory and its debtors. What you are presenting as if it were a virtual franchise, something that does not exist" (p. 48, paras. 3-11 of the minutes of the hearing of April 19, 2023; The emphasis is not in the original - H.S.), and later on: