In the literature as well, opinions are divided on the question of whether the case law intended to determine that it was sufficient, for the purpose of this condition, that the intention of the organ was not to harm the corporation (according to Lederman, Models of Liability, at p. 296), or whether liability should be imposed on the corporation only where the organ intended to benefit the corporation (as Kremnitzer and Ghanaim, The Responsibility of the Corporation, ibid.' 98).
In the amendment memorandum, it is proposed to set this condition explicitly and to clarify the case law on this matter (p. 5 of the memorandum):
"It is proposed to establish protection for the corporation when the organ did not intend to benefit the corporation by its act, and when the act committed by the organ was not by its nature an act that benefits the corporation. This defense is mainly derived from the rationale underlying the theory of organs, according to which criminal liability can be attributed to a corporation for an act committed by someone acting on its behalf and for the corporation. A clear case in which the defense will apply is a case in which the organ steals from the corporation. Attributing liability to a corporation in such a case is inconsistent with considerations of justice and fairness. When an organ of a corporation commits an offense for the benefit of the corporation, its action can be seen as an action on behalf of and for the corporation, and therefore it is justified to obligate it to bear the burden as a result. On the other hand, an action that is not intended to benefit the corporation, or is even intended to harm it, should not be viewed as an action on behalf of the corporation and should be held criminally liable for it..... It is proposed to refine the test in two ways: first, it is proposed to include two cumulative tests for the existence of the defense: a subjective test – the purpose of the organ to benefit the corporation, and an objective test – acts that, by their nature, are intended to benefit the corporation .Rather, it is a test that relates either to the purpose of the organ that committed the offense at the time of its commission or to an act that by its nature – and not according to its outcome – is intended to benefit the corporation.