Civil Case (Tel Aviv) 848-06-23 Yaffa Feldman v. Fresh Concept – Strategies for Original Thinking Ltd. - part 50

I am of the opinion that the application of this rule to the present case clearly shows that the intention of the parties was to relate to the agreement similar to a regular loan agreement.  This intention arises from the language of the agreement, in which it was explicitly determined that the clause was added for halakhic reasons and that in any case of contradiction between the provisions of this clause and the provisions of the agreement, the provisions of the agreement would prevail.  In addition, the intention is also supported by the conduct of the parties and the terms of the engagement.  Thus, the intention of the parties indicates that the lion's share of the funds was transferred to the bank account of the plaintiff and her husband Feldman, inter alia, to cover a Bank Leumi mortgage and not to the company's account.  Moreover, later on, when the loan agreement was breached, appendices were also signed between the parties and later also repayment arrangements - all of which indicate that the parties were bound by the terms of the agreement as a loan agreement, including in particular the obligation of the borrowers to pay the interest.  Moreover, in the settlement dated June 25, 2020, the parties even explicitly agreed that, if the borrowers did not meet their obligations under the agreement, the lender would realize the apartment held by Goldberg, without detracting from his ability to realize the apartment that is the subject of the hearing.  In these circumstances, I find it acceptable to accept the defendant's argument that the parties' intention was to enter into a loan agreement and not an investment agreement.  In this latter context, I find it necessary to emphasize that in its summaries the plaintiff claimed that the defendant did not present an alternative version of the plaintiff's version, according to which the parties' intention was to create an investment agreement.  As for this argument, I will ask - how can the plaintiff establish a version and accordingly the parties sought to enter into an investment transaction and at the same time claim that she did not know what transaction she entered into, that she did not read the terms of the agreement at all, and in accordance with this, on the face of it, she did not even know that clause A of the business permit existed in it?! This is in contrast to the defendant's witnesses, who testified positively that the parties' intention was to enter into a loan agreement.  Moreover, in this context, I will add and note that even the plaintiff's husband - Feldman - did not testify positively that the parties' intention was to enter into an investment agreement, but all he testified in his affidavit was that he asked to add the clause of the transaction permit for halachic reasons and asked that it be validated.  Since, as aforesaid, the validity of the transaction permit can be given in one of two alternatives - both as a loan agreement and as an investment agreement - on the face of it, the purpose of adding the clause to the agreement was fulfilled, and on the other hand, no positive argument was presented according to which the intention was to enter into such an agreement and not another.