President A. Grunis:
I agree with the judgment of my colleague, the President (ret.) D. Beinisch.
The President
Vice President A. Rivlin:
I agree with the comprehensive and thorough judgment of my colleague the President. However, I would like to make this comment:
- In the circumstances of this case, I concur with my colleague's position that the sequence of suspicious signs detailed in paragraph 44 of her judgment is sufficient to determine now that there is a reasonable possibility that it will be determined later that Elron should be held liable for the appellants' damages. At the same time, it should be emphasized that in most cases, a seller of shares is not responsible for the activity of the purchaser of his shares and is not obligated to investigate his motives and plans for the future. Therefore, in the continuation of the hearing, the District Court will be required to examine whether the appellants succeeded in proving that Elron was indeed aware that the purchaser of her shares was acting for motives that were not valid. In this context, it should be noted that the required level of awareness has not been clearly determined in case law, and in my opinion, extreme caution should be exercised and one should refrain from imposing liability on sellers of shares that held only with unfocused suspicion as to the motives of the purchasers of their shares. It is necessary to take into account the danger that overburdening the right of a controlling shareholder to sell his shares may deter investors from entering the Israeli capital market in the first place, and harm their freedom of contract and freedom of property.
- The appellants sued the respondents on countless grounds and relied on dozens of different sections of the law. According to the position of my colleague the President, their claim will be approved as a class action on one ground only - discrimination against the minority according to Article 235 to the Companies Ordinance. I join that. In my opinion, it is possible to add to this ground in relation to the hotel and marina transactions, the ground for breach of duty of care and breach of duty of fiduciary duty according to Sections 96-9628 To the Companies Ordinance (compare, for example: Civil Appeal 610/94 Buchbinder v. Official Receiver in his capacity as liquidator of the Bank of North America, IsrSC 66(4) 289 (2003)). It should be noted that the wording of Article 235 The Companies Ordinance does not explicitly grant entitlement to the remedy of compensation due to discrimination against the minority, and therefore it appears that its use is not the "way out" for claims that require monetary relief. Admittedly, in the circumstances of the case before us, in which the society that allegedly caused the discrimination (Elsint) no longer exists, it seems that there is room for an expansive interpretation of the remedies for discrimination against the minority. Without establishing a precedent as to the interpretation of this section, it is doubtful whether it is necessary to limit the appellants to its limits, and whether their claim as a class action should not be approved even on grounds of breach of duty of care and breach of duty of fiduciary.
It should be noted that in the previous discussion we held on this affair (Civil Appeal Authority 7028/00) [Published in Nevo] We held that the appellants are entitled to file a class action on any ground on which a class action could have been filed according to Companies Law, moves to the legislation of Class Actions Law. This includes the grounds relating to breach of fiduciary duty and breach of duty of care (Section 207(b) to the Companies Law, as drafted before it was repealed).