See also paragraphs 81-83 of the opinion, including CPA Buchnik's conclusion that: "The transactions on the bank statements of the business's bank accounts during the relevant period indicate the manner in which the checks are cashed and the cash received in connection with the liquidation, in the bank accounts, when there is a shortage of cash, as opposed to the amounts of checks, as shown in the following examples (...)" (emphasis in original).
See s. 107(f), which states that "the difference between checks drawn by the defendants, according to them, for the purpose of paying employees in cash and financing the expenses of the business, and the cash deposited in their place in the bank accounts is ILS 3,026,724" - with a difference in this context between Rami (ILS 1,246,392) and Ofer (ILS 15,360). Subsequently, it was also noted that 12 checks for Rami's personal expenses, in the amount of ILS 54,100, were drawn without invoices or references to the business (paragraph 107(g) of the Buchnik opinion).
See also paragraphs 107(14) and 107(15), which state that: "According to her reports to the tax authorities, Barkat did not have salary expenses in the period from March to October 2013. However, Barkat charged Mor Marketing at the time, in the sum of ILS 271,436, for 'employee wages for washing,' 'employee salaries,' and 'employees' wages,' and received payment for these charges."
- From the above grouping, a picture emerges according to which checks were distributed widely, without references and in various amounts, to entities that at least some of them have nothing to do with the joint business. The defendants' argument that on at least some occasions, the plaintiff authorized the check discounting company to repay them, in a manner that indicates that he was indeed aware of what was happening with them. However, the plaintiff insisted that he did not understand the meaning of the conversations in real time and referred to it as a question of whether the checks should be honored or not (p. 346, paras. 20-22), and that this was a small number of cases: "They asked me if these checks could be honored, I said, why shouldn't these checks be honored? What's the question? Why shouldn't they be respected? It seems logical to me that they should be respected, it's checks that the business has to pay the employees, that's all." Subsequently, the plaintiff stated that he had approved the checks following fraudulent conversations that should have been approved (p. 348, paras. 14-17). This version is accepted by me in the main, and even if I were to reject it, there is a long way to go from single approval for a number of deductions to reaching a conclusion for the overall approval of the expenses detailed above and in the opinion of Dr.
- Additional support for the conduct of the defendants, who use the plaintiff's money for their own needs, relates to Muhammad Zakarneh (hereinafter: "Mohammed"), one of the subcontractors for the car wash with whom Rami worked as part of the joint business. When Rami was confronted in the cross-examination with the fact that the agreement with Muhammad did not leave a profit line for the company (i.e., that the amount paid to Muhammad and his employees was exactly the amount that the joint business collected from his customers), Rami denied the agreement and claimed that it had nothing to do with it (p. 617, s. 30; p. 618, s. 11-15):
"It can't be a real agreement (...) It can't be that they got the same price. Either it's a clerical mistake or this page was printed by someone who has nothing to do with me or I have no idea or it's a page at all, I don't know, it came out at all, I don't know, I don't remember. But there can't be such a situation."
- Rami was also confronted with the fact that Muhammad had worked for only five months with the joint business and was asked whether a profit of ILS 1 million for such a short period was reasonable (p. 621, paras. 13-18), and initially claimed that this was the money that the workers deserved, especially since they worked 24/7, including on Saturdays, although he had previously clarified that this was not taken into account on their terms in any case (p. 623, paras. 14-26). When the plaintiff's attorney slammed him that this was illogical, since in the nine months of operation the business earned only ILS 1.4 million from washing the vehicles in accordance with the expert opinion, he insisted that everything was "fixed", that the plaintiff "hid invoices" and that "in my opinion it was much more than 1.4 million" (p. 624, paras. 4-28). This claim was based, among other things, on the thesis that Israel and the experts on its behalf compiled the data, a thesis that I do not accept and which I will refer to later.
- If there is a need for additional evidence that shows that the plaintiff's money was stolen for business purposes, I will refer to the conduct with respect to the credit cards. CPA Buchnik determined that transactions pretending to be private were carried out on the business's credit cards in the amount of approximately ILS 62,000. These credit cards were used by Rami and Ofer, see paragraphs 34(b) and 34(c); Sections 107A(2) and 107A(3) of his opinion. Paragraph 35 of Ofer's affidavit also states that: "Two credit cards were issued and given to me for the purpose of various payments of the business, including personal payments of the plaintiff such as fines and parking tickets, water and electricity bills, etc. In addition, these credit cards were used to purchase materials and products for the business, purchases through websites from abroad for new materials for the business, food for employees, and"
- These cards were used for personal needs, as detailed in Appendices 37 and 38 to the statement of claim and in the opinion of Dr. Buchnik (para. 102). When Ofer was confronted in cross-examination with these expenses, he tried to claim that these expenses were business expenses and that each personal expense was Israel's (p. 871, paras. 12-34; p. 872, paras. 1-9):
- Have you received permission from Israel to use these funds? That's quite a lot.
- The things purchased are for the benefit of the business (...) All kinds of gloves, all kinds of towels were ordered from her name (...)
- Tell me, and is the lottery stand also for the benefit of the business? There are your charges here that come back from the lottery stand, games of chance, it's from your card. Is it also for the benefit of the business?
- I wasn't at the Mifal HaPais booth.
- It is from the card you used.
- Okay, and this card too, they took it, you know?
- Who took him? Who used it but you?
- Israel also used this card.
In this matter as well, I found it appropriate to prefer the plaintiff's version - both because of the determinations that Ofer was the one who held the card (as is also evident from his affidavit), and therefore he was in a position to use it, and because his claim that Israel took the card was first raised in his testimony.
- In light of the above, I am persuaded, at the level required in a civil proceeding, that Rami and Ofer exceeded Israel's permissions with respect to the checks he transferred to them and used his money for their own needs and not only for the purposes of the business. This conclusion fits into the common sense test, since it is illogical that a business that generates approximately ILS 1.9 million during the entire period of activity (see paragraph 36 of the Buchnik opinion) would distribute checks in the amount of approximately ILS 5.2 million (see paragraph 56 of the Buchnik opinion). Therefore, I determine that the elements of the tort of theft existed, since an unlawful transfer was made (from Israel's accounts); for personal use (of Rami and Ofer, whether for the purpose of paying debts to creditors or for personal needs); of movables (checks and cash); that the right to hold them belongs to the plaintiff (we are dealing with his money).
Is there room to attribute contributory fault to the plaintiff's obligation?
- The plaintiff argued in his summaries that there is no reason to attribute contributory fault to him in light of the sequence of events, as defined in section 68(a) of the Torts Ordinance. Although this argument was not answered in the defendants' summaries, I found it appropriate to discuss it briefly, if only because of its importance. Recognition of contributory fault makes it possible to divide the responsibility for the damage in a just and efficient manner between the plaintiff and the defendant (Amos Herman, Torts Law 328-329 and the references therein (2nd edition, 2020)). As the scholar Herman points out, contributory fault is examined both in the physical aspect (careless behavior that contributed to the damage) and in the normative aspect, which is based on judicial policy (see also Ariel Porat, The Defense of Contributory Fault in Contract Law 133 (1997); Ehud Gotel and Ram Winograd, "Penalties and Torts: On the Choice between Balance and Consistency," Mishpatim 49 357, 370 (2019); for more on the doctrinal test, see Civil Appeal 14/08 Elrahim v. Plastanir Plastic Packaging Factory in Kibbutz Nir Eliyahu, para. 12 (Nevo 2.12.2009)).
- However, this question was recently discussed in this court (see Civil Case (Tel Aviv District) 27542-04-18 Liechtenstein v. Estate of the late Mr. Zimek Serge (Nevo, March 20, 2025) (hereinafter: "the Liechtenstein Case"). There, Justice Gontovnik ruled that there was no room to recognize contributory fault in the circumstances before him. Indeed, in the Liechtenstein case , the discussion in this context is rooted in the question of trust, but in my opinion what was said there is also appropriate for our case, with the necessary changes (paragraphs 103-104):
I cannot accept this approach in the circumstances of the case, insofar as it relates to the relationship between the plaintiffs and the defendants. Here the degree of guilt of the defendants is decisive. They are responsible for the theft of funds. The significance of accepting their argument would be that where the holder of the funds did not properly guard them, there is justification for reducing the compensation due to him from the thieves, and thus partially legitimizing the theft.