This is the place to note that when I came to examine the evidentiary weight of this testimony of Mr. Alfasi, I gave my attention to the fact that this is a litigant, to the prima facie interest that he has in his relationship with Paragon, to the plaintiff's claims with regard to the relationship between the defendants themselves, as well as to the fact that he, like the plaintiff, refrained from presenting relevant documentation and evidence that could have been expected to be attached to his affidavit.
However, and at the same time, it should be remembered that the plaintiff was the one who petitioned for the granting of the relief, and that the basic, even the primary, burden of proving his claims was on him, and this burden was not lifted as it should be.
Interim Summary
- From all the evidence presented to me, a picture becomes clear in which Paragon agreed to the partnership to enter Mr. Nahmias's shoes, in exchange for the repayment of Mr. Nahmias's debt to it.
The scope of the debt has not been clarified by the time of writing, but none of the parties disputes that it has been fully discharged.
Whether the scope of Mr. Nahmias's debt amounted to ILS 2 million or any other amount, the fact that it was repaid by the partnership leads to a clear conclusion that a significant sum was paid by the partnership to Paragon, with the clear understanding of both parties, that this payment constitutes a condition for Paragon's agreement to allow the partnership to market and sell its products.
Although each of the parties has chosen to define the right or permission given to the partnership, as well as the amounts paid in connection with the receipt of the said right, in a different way, there is no dispute that such a right was indeed granted.
- In these circumstances, I find it to be determined that the plaintiff stepped into the shoes of Mr. Nahmias (initially through the partnership), as a marketer of Paragon's products.
However, and in order not to fall into a mistake, I will add and emphasize as follows:
- It is not clear what amount was paid for the purpose of settling Mr. Nahmias's debt, and in any case it is not clear which of the partners in the partnership actually paid it. There is an unclear gap between the parties' agreements regarding the investment of each of them in the partnership and the amounts transferred and the claims raised in this regard.
- Some of the sums transferred by the partnership were transferred for the purpose of purchasing existing goods, whether in Mr. Nahmias's premises or in the premises of Paragon, and not for the purpose of repaying Mr. Nahmias's debt or granting the concession.
- Additional claims raised by the plaintiff as to the nature, scope and content of the right/franchise to sell Paragon products have not been proven, and have not been supported. This is the case with regard to the consent to grant credit, so with regard to the entitlement to assign the concession to a third party, and so with regard to other components.
- With regard to the alleged element of granting exclusivity within the framework of the concession, consideration will be given in the following lines.
Exclusivity for selling products
- According to the plaintiff, not only was he given a franchise to sell Paragon's products, but also because he was entitled to exclusivity in the sale of those products. As explained above, recognition of the existence of a right to sell the products is not sufficient to indicate the existence of a right to exclusivity in relation to those sales.
- Moreover, a distinction must be made between the question of the existence of a factual situation in which the products were sold by the partnership or the plaintiff alone during one period or another, and the recognition of the existence of the parties' explicit consent to grant exclusivity.
- I will preface by noting that Notwithstanding the importance of the exclusivity claim, and its implications for the proceeding before me, the evidence in this case shows that this claim for the existence of an exclusive franchise was not mentioned by the plaintiff prior to the date of filing the claim, in 2018.
For example, Anonymous The plaintiff presented a letter of demand or warning that was sent to any of the defendants Claiming for a breach of the exclusivity agreement with him, and even In the warning letter Asher Sent to Mr. Alfasi on 15.12.2015, There is no mention of the claim The Existence of Franchise or Privilege Exclusivity and breach of these. All this despite the fact that the activity with Paragon was stopped as early as September 2014 (see the plaintiff's testimony at p. 30, paras. 2-19 of the minutes of the hearing of December 5, 2022; the testimony of Mr. Alfasi at para. 61 of his affidavit, the testimony of Mr. Darshewitz at para. 22 of his affidavit and Exhibit N/5). - In the framework of the proceeding before me, the plaintiff did reiterate that the partnership was the exclusive franchisee for the sale of Paragon products, and that after Mr. Alfasi sold him his share in the partnership, he became the exclusive marketer of Paragon products in Israel (see p. 40, para. 20 of the minutes of the hearing of December 7, 2022).
In support of these claims, the plaintiff sought to refer to an e-mail correspondence between Mr. Dershewitz and him, which, according to him, was in order to corroborate his words (Appendix E1 to his affidavit).