This is the place to note that I found Mr. Nahmias's testimony and version to be missing. It is reasonable to assume that a person who owes millions of shekels to supply goods will know, precisely, the amount of the debt he owes, how it will be repaid, and that he will condition the transfer of the marketing rights which he claims are his own (certainly where he claims that they were also exclusive) on the payment of the debt in an orderly manner, as well as clarification of other issues relating to his rights vis-à-vis third parties to whom he sold the goods. The inventory and the like. The fact that no written agreement was made in this matter as well, makes it difficult to reach conclusions regarding the relationship between the parties.
- To all this will be added the need to take into account the fact according to which from the evidence that was placed in the court file we learn that this debt of Mr. Nahmias to Paragon was less than the sum of ILS 3,750,000 .
The plaintiff testified that Mr. Nahmias's debt to Paragon amounted to approximately ILS 2,000,000 and from Mr. Alfasi's testimony it emerged that Mr. Nahmias' debt to Paragon amounted to approximately ILS 2,450,000.
Mr. Nahmias himself testified that he did not remember the amount of the debt, but confirmed that the payment of the sum of ILS 3,750,000 covered him as well (see paragraph 8 of the plaintiff's affidavit and his testimony at p. 9, s. 2 and 11-12 of the minutes of the hearing of January 23, 2019, the testimony of Mr. Alfasi at p. 195, paras. 10-30 of the minutes of the hearing of February 21, 2024, and the testimony of Mr. Nahmias at p. 62, s. 32-36 of the minutes of the hearing of December 7, 2022).
- From the plaintiff's affidavit, it was not possible to conclusively conclude whether the sum of ILS 3,750,000 was paid, according to him, for the purchase of the franchise only or also for the purchase of goods.
Thus, for example, in paragraph 17.1.3 of the plaintiff's affidavit, it was stated that: "Against the said concession, it was agreed that the partnership would pay the first sum of ILS 3.75 million for the goods it would market. It should also be emphasized that it was only later and retrospectively that the partnership found out that this sum of ILS 3.75 million was not recorded in the ticket of the partnership and/or anyone on its behalf as payment for the purchase of goods or payment for the purchase of the concession. It should be noted with emphasis that this sum of ILS 3.75 million was indeed paid to Paragon by the Partnership for the purchase of the proprietary concession" (paragraph 17.1.3 of the plaintiff's affidavit; The emphasis is not in the original - H.S.).
- The plaintiff's cross-examination in court revealed that he did not separate or distinguish between the sums paid for the franchise and those paid for the purchase of goods:
"Q. How much did you pay for the franchise?
A. 3.75.
Q. Repeating the question. Don't be clever.
A. I'm not clever. 3.75 million, the partnership has been paid. Anei and Alfasi together... I paid millions as I said in the affidavit... I refer to the exhibit for her, pp. 229, 230, 228, checks that I transferred, loans that I took care of, I list all the checks. This was part of the payments for both the franchise and the ongoing operations. The person who ran the system with Paragon was Alfasi, and every time I was asked to bring in money, I brought it.
Q. According to your answer, we understand that an appendix to it is for both goods and concessions. What amount of the appendix to it was paid only for a franchise?
A. There was no separation".
(p. 41, paras. 23-35 of the minutes of the hearing). The emphasis is not in the original H.S.).
- Even with regard to the question of whether the sum of ILS 3,750,000 also included the consideration for the goods that remained in Mr. Nahmias's warehouses (and not goods that were purchased directly from Paragon), contradictions arose in the plaintiff's version.
On the one hand, the plaintiff testified that the payment was for the concession only and that they were not required to pay any additional sums for those goods: