(In one agreement, this clause appears as clause 3.1.3, in two agreements as clause 3.1.4, and in one agreement the clause does not appear at all).
As will be detailed below, the dispute relates both to the question of whether the intention of the parties was to include this clause in the framework of the agreements between them – as claimed by the plaintiff, when the defendant, on the other hand, claims that this clause is a remnant of a historical engagement format and therefore, it was not omitted from some of the agreements by mistake (or was added to the last agreement between the parties fraudulently). In addition, the parties disagree on the issue of the interpretation of the clause, including the question of whether it embodies an undertaking by the company to grant the plaintiff options for the purchase of the company's shares, in addition to a monetary commission that was agreed to be paid to the plaintiff (and was even actually paid) and which the plaintiff was entitled to convert into shares of the company – as claimed by the plaintiff, or whether it is only a clause that allows the plaintiff to convert the monetary commission that it received into the company's shares – as the defendant claims. Which, as stated, was mistakenly omitted from later versions of the engagement, since the possibility of converting the commission was later regulated in another specific clause.
I note that in addition, the parties disagree as to the plaintiff's right to receive commission in respect of a second offering that the company made in May 2019.
- Although the dispute between the parties appears to be a significant-interpretive dispute, in practice – since the bulk of the communication between the parties is documented – in e-mail correspondence, WhatsApp messages and recordings of conversations between them – there is no real dispute between the parties as to the facts and chronology. However, as will be detailed below, the parties first disagree as to the effect that the factual set has on the interpretation of the contractual system. This is because, on the face of it, this tractate constitutes circumstances external to the written agreements. In addition, each of the parties gives the same set a different interpretation and also takes parts of the factual system that correspond to its version and adopt them into its arguments. As such, and in order to facilitate the understanding of the matters and the arguments for the future, and given that, as stated, the vast majority of the factual tract is not in dispute, I find it necessary to first detail the factual tract chronologically, and in some cases I will even decide specific factual disputes by the way. At the end of this chapter, the full factual picture will be presented, in light of which the parties' arguments will be detailed and will be used for a decision while applying the applicable legal norms.
Since the aforesaid has been clarified, I will follow the path taken by the parties from the beginning of their relationship to the legal proceeding.
- The beginning of the relationship between the parties – the nature of the service that was initially offered by Peleg and how the relationship with the Australian brokerage firm was created;
As to the very establishment of the relationship between the parties, an examination of the affidavits of Peleg and Don shows that both of them agree that the person who created the relationship between them was Ran Keren – a joint acquaintance of both of them (hereinafter: "Keren").