(d) The representative was misled and acted on the basis of the deception; As for this element, it was detailed in paragraph 44 of the judgment in the Apel case that: "This element, as distinct from the previous one, focuses not on the presenter, but on the representative and his conduct. It is required that there be a causal connection between the intention of the presenter to mislead and the action of the representative who was misled." With regard to this, it was clarified that: "According to Apple's factual claim in this context, according to which the fraud was possible, with reasonable caution, to discover that it was deceived and not to act on the basis of the false representation, there is no legal implication here. The theoretical ability of the representative to discover the matter of deception - and this is often the case - does not generally establish a defense against fraud (cf. Winfield, at pp. 532-533; in Australia: Gipps v. Gipps [1978] 1 NSWLR 454). The question we must focus on is not the ability to determine that the representation is false, but rather the existence of a causal connection between the false representation and the act of the representative. In the case before us, the circumstances show that such a causal connection did indeed exist... Thus, the mere fact that the information required for the purpose of verifying the data of the representation and its denial was in the hands of the representative - cannot, in the circumstances, grant an exemption from liability to the person who made such a false representation, when the representative acted on the basis of the false representation." [My emphases L.B.]
(e) pecuniary damage as a result of the action based on the false representation (see details in paragraph 46 of the judgment in the Appel case);
As for the burden of proving fraud, I will note that in the framework of the case law, it was determined that the burden for the purpose of proving fraud is high and that: "Although the burden is of a balance of probabilities, as is customary in civil law, the amount of evidence and the threshold of evidence required for a quasi-criminal claim of forgery and fraud is higher. There is a connection between the severity of the claim and the strength of the proof required to prove the claim, and where a claim of fraud and forgery is raised, the court must examine the evidence carefully and meticulously" (see Civil Appeal 3546/10 Eliyahu Mishaeli v. Olga Klein [Nevo] (April 18, 2012); Civil Appeal 260/82 Salomon v. Emunah, IsrSC 38(4) 253, 257 (1984); Civil Appeal 359/79 Elhanani v. Rafael, IsrSC 35(1) 701, 711 (1980); Civil Appeal 8482/01 Union Bank of Israel v. Sandovsky, paragraph 5 of the judgment of Justice Strasberg-Cohen and the references there [Nevo] (July 17, 2003); Civil Appeal 3725/08 Hazan v. Hazan [Nevo] (February 3, 2011); Civil Appeal 475/81 Zikri v. Clal Insurance Company, IsrSC 46(1) 589 (1986)).
- As I have already stated and noted, I am of the opinion that the facts as proved in the proceeding and supported by the evidence detailed at length above, are capable of establishing a cause of action for the plaintiff against the employees of Global and consequently against Global, a cause of action for fraud. In this regard, the concentration of the facts as proven (and which for the sake of convenience were compiled in paragraph 53 above) shows that the plaintiff was presented with many false representations - which involved concealing the identity of the party with whom she contracted, continuing with the concealment of the identity of the employees with whom she worked; In addition, the plaintiff was presented with false representations regarding the place of operation of OFM, the experience and training of its employees; Moreover, the plaintiff was presented with false representations regarding the risk in its investment, as to the expected returns as a result of the investment, from collateral (including bonuses) - ensuring the absence of risk in the investment, and the like; the plaintiff was also presented with false representations regarding the identification of interests between it and Global and its employees, and moreover, the conflict of interest between it and the plaintiff was concealed from the plaintiff. Given that the bulk of the misrepresentations embody real lies - since there is no dispute that the representations do not contain substance and the defendants do not deny that the representations do not contain any truth (but according to their claim - which was rejected - that they were not presented to the plaintiff at all) - it is only that the employees of Global who presented the representations to the plaintiff knew that these were incorrect representations. Moreover, due to the inherent conflict of interest and as detailed between the interests of Global and its employees and the plaintiff, it is not only that the representations were deliberately presented in order to persuade the plaintiff to continue investing funds, while Global and its employees know that continuing to invest the plaintiff's funds will put the plaintiff's money at risk and ultimately lead to the loss of its funds. In other words, they anticipated the result of the plaintiff's loss of money and naturally intended this outcome. It was also proven that in practice, the plaintiff acted on the basis of the representations presented to her by Global and its employees and invested her money. Finally, it is not denied that in fact the plaintiff suffered pecuniary damage resulting from the loss of the lion's share of her investment funds in the amount of $1,100,760, and in addition, damage that is expressed in transfer fees for which she was charged in the sum of $17,979. At the time of the claim, this damage amounted to ILS 3,659,100.
- Global's Responsibility -
As detailed above, the cause of action against the plaintiff stems from representations made to the plaintiff by Global's employees during their work, therefore, in accordance with the provision of section 13(a)(2) of the Torts Ordinance, Global is liable for the actions of its employees.
- Shabbat's responsibility - personal responsibility and lifting the veil;
With regard to Shabbat, as will be detailed below, I am of the opinion that there is room to impose liability on Shabbat for the plaintiff's damages, whether by virtue of lifting the corporate veil between him and Global or by virtue of the norms surrounding the imposition of personal liability on officers or shareholders in the company. I will note that in light of these determinations, I am not required to address the plaintiff's alternative grounds by virtue of the Consumer Protection Law.