It should also be noted that "in accordance with the provision of section 15 of the Law, the duty of disclosure is derived not only from the provisions of the law, but may also be learned from the circumstances. The scope of the duty of disclosure by virtue of the circumstances is broader and more flexible, and it depends - by its nature - on the specific and concrete facts of the transaction" (ibid., at paragraph 14). and "the duty of disclosure derived from section 12 arises where according to the circumstances it would have been reasonable to expect that a person conducting a negotiation would disclose significant data to the other party [...]. Disclosure of relevant information to the other party is generally perceived as an expression of the demand for fairness in the relations between business parties in the negotiations. This is especially the case in which one of the parties already holds the requested information, or has greater access to the data in connection with the asset" (ibid., at paragraph 18).
- Indeed, the duty of disclosure is not absolute, and it cannot be said that each party to a contractual negotiation must waive any advantage it has in the form of excess information relevant to the transaction, and disclose it to the other party. However, in the circumstances of the case before us, in my opinion, a duty of disclosure arose. A matter was discussed that could have significant implications for Mr. Knepfler's interests, as he made them clear to Mr. Nehemiah. It is true that even if a final debt to the management company had been formed, Mr. Knepler would not have directly incurred it, because it would have been rolled over to the company. And a negligible amount has not yet been discussed. It could have projected on the value of the company. It is possible that the dispute with the management company would not have harmed the revenue stream from renting properties in France, but this is not an absolute guarantee. Throughout the process, Mr. Knepfler emphasized the importance of a solid income stream from the property companies, and this was reflected in the fact that he was promised a significant part in it.
The scope of the dispute with the management companies swelled significantly in the first half of 2016 and it was not exhaustively possible to learn about it from ADN's financial statements for 2015 and from its public reports.