This onerous approach was ruled in practice even before the enactment of the Companies Law. This was determined by the Honorable Judge, as he was then called, in light of other municipal applications 4612/95 Matityahu v. Shatil, IsrSC 51(4) 769, at paragraph 27 (1997) (hereinafter: the Shatil case):
In order to formulate an independent personal duty of care on the part of the manager, it is necessary to establish a data system that exceeds the scope of the normal and routine activity of an officer in the company. Without exhaustion, the data may have significance in this context, such as the manager's personal expertise in the matter that is the subject of the engagement, on which the other party relied for the engagement... Professional duties of the manager, based on his professional skill - for example, as a doctor, lawyer or planner... or the existence of a special relationship between the manager and the third party, which resulted in the third party giving the particular manager its trust and assurance that the manager, personally, takes responsibility towards the third party.
The question, therefore, is whether the appellants laid a factual basis, from which it can be concluded that the activity of the managers in the said engagement deviated from their routine activity as managers in the company, in a manner that imposes on them a personal duty of care towards the appellants [emphases added].
This approach remained in place even after the enactment of the Companies Law (see the Nashashibi case, at paragraph 53 of the opinion of the Honorable Justice Danziger).
- Against the background of these rulings, it would be interesting to quote the words of Uriel Procaccia, according to which "Israeli case law, as well as - as a rough generalization - English and American rulings, has never openly admitted that negligence that is not serious is not subject to a lawsuit. However, it is very difficult to find cases in which corporate market agents have been held liable for civil liability for 'simple' negligence" (Uriel Procaccia, "Corporations", Economic Approach to Law 751, 784, 66 (Uriel Procaccia, ed., 2012)).
As for myself, I do not believe that this is a matter of a stricter standard of negligence, but rather considerations of legal proximity, rivalry and legal status to sue. Thus, for example, if the third party establishes a special reliance or a special relationship of trust, the question of negligence itself will not be examined differently. It will not be required to establish the conduct of the officer who deviates in a particularly blatant manner from the standards of reasonable conduct expected of the reasonable officer. The hurdle facing the third party does not necessarily pass through the establishment of a particularly serious deviation from what is expected, but rather the establishment of those circumstances that will enable it to have direct rivalry with the officers, and the legal status to attribute to them personal liability for the tort of negligence.