Everything is a new version in nonsense, with no reference to any of them.
- At a certain point, the defendant even sent the plaintiffs a document on WhatsApp purporting to be the orders he made for his customers with the Spanish manufacturer, first and foremost the plaintiffs' order, but this while deleting the details of the anonymous supplier for whom the order was placed. In his cross-examination, the defendant claimed that he deleted it so that customers would not call the supplier to complain about him (pp. 20 Q1-3).
We are therefore left with a printed document bearing the date of March 9, 2022, without the ability to link it to any factor or matter in the case at hand, except for the defendant's claim that the number 1,166 that appears in the row in the table is the size of the plaintiffs' pergola (p. 19, 31-34). I am not persuaded that it should be determined that this document is related to the case at hand.
- To complete the picture, it should be noted that in July 2022, the parties scheduled to meet, and it was implied that the defendant promised to return the advance to the plaintiffs, but again rejected them with a "go and come back." Later, the defendant announced that when the order arrives at the warehouse, the plaintiffs will be able to come and see it, transfer the difference in payment to the defendant, and then it will be delivered to their home and installed.
- At this stage, mutual suggestions and arguments arose on how to secure the plaintiffs' money in the face of the defendant's desire to guarantee the payment of the order when it arrives. In this matter as well, I cannot accept the defendant's version and his arguments. The state of affairs at that time was that the defendants had been holding a total of ILS 35,000 of the plaintiffs for over a year, did not provide a pergola and suddenly demanded a 'guarantee' of the balance of the payment before the installation in light of the plaintiffs' grievances and their demand for a refund.
- The lack of credibility of defendants 1-2 continued during the course of the proceeding, when in the hearing on December 6, 2023, they claimed that 'the product exists and they (the plaintiffs) can receive the product today' (p. 1, 12), while in the hearing on May 15, 2024, the defendant replied that the product did not arrive in Israel but was found in Spain, and even claimed that 'within a month and a half it is here... I didn't say it ever came, I make it conditional on payment. I don't fund any client" (pp. 5, 2-7).
- I am of the opinion that if the defendants had been able to supply the pergola at that time or at any other time mentioned above, they would have done so and thus reduced the alleged damages.
According to the defendant's version, he had already paid for the system twice to the Spanish manufacturer, and the order made by matching personal dimensions to the plaintiffs' balcony could not be canceled, but none of these claims were proven. In any event, this belated claim that he suddenly remembered to promise himself and therefore did not send the system to Israel until the payment was guaranteed, is also not credible to me.
- Therefore, it must be determined that defendants 1-2 breached the agreement and did not meet the burden of proving that a pergola system was indeed ordered for the plaintiffs and that they were able to install it in the plaintiffs' home as promised. Furthermore, the agreement was breached when the promised pergola was not supplied after any reasonable time had elapsed.
Defendant 2's Personal Liability
- Defendant 2 is the 'living spirit' in defendant company 1. In his own definition, he is the 'man of the field' and in fact he is the one who came to the plaintiffs' house and took measurements, he was the one who closed the deal with them, he was the one who instructed them how much money to transfer and to which account and he was in constant contact with them, he talked about the delivery of the shipment, about malfunctions and delays, about placing a new order, about the dates of the pergola's arrival, about its arrival for installation and more.
- In light of these data, it is clear that defendant 2 is the organizer of the company and its management. In terms of the Companies Law, its actions are the actions and intentions of the company, injustices that it commits are binding on the company, and at the same time, 'the attribution of an action or intention of an organ to the company does not detract from the personal liability that the members of the organ would have had it not been for that attribution' (sections 47, 53, and 54(a) of the Companies Law, 5759-1999).
- As determined in the case law, an organ such as defendant 2 was found personally liable for its bad faith conduct, since the duty to act in good faith in the fulfillment of a contract is imposed on the person who executes the contract even if he is an agent of another. Whenever a manager has done or refrained from doing an act that may impose personal fault or liability for compensation, his personal liability exists, and his status in the corporation does not, of course, grant him any immunity.
The imposition of such liability is done only in exceptional cases, and the case at hand is appropriate for this, when defendant 2 was in fact the only operating force behind the parties' engagement and is the entity that in fact had exclusive control over the way the company conducts itself and the realization of the agreement (Civil Appeal 8910/05 A. Admon in Tax Appeal v. Zelma Weinblatt (September 20, 2007) and the references therein).
- Defendant 2's personal liability, in addition to the company's liability, is inferred from his bad faith conduct, which is detailed above. All of defendant 2's promises, which were concrete and specified delivery departure dates, arrival dates, installation dates, etc., turned out to be incorrect, to say the least.
- In such cases, case law has determined that in order for such an answer or promise by an organ to be considered as a bad faith representation with signs of deception or deception, in a manner that justifies imposing personal liability on him, an evidentiary basis must be pointed out that he knew or should have known at the time that there was no truth in his answer or promise:
"In other words, a distinction must be made between general answers and promises in the style of 'the subject under treatment' or 'it will be fine', which, although the mind is not always comfortable, do not amount to subjective bad faith that has signs of deception or deception, and answers and promises in which explicit things are said that are not true" (Civil Appeal 3807/12 Ashdod City Center K.A. in Tax Appeal v. Shmuel Shimon, 22.1.2015).
- In our case, defendant 2 has not been able to present even a shred of evidence that could have substantiated any of his repetitive, contradictory, and changing promises.
The correspondence between the parties shows that defendant 2 did not only serve as a liaison between the company and the plaintiffs, but was the one who acted according to him to execute the order with the Spanish supplier, so it cannot be said that he was not fully aware of the state of affairs. At the very least, he should have known that his statements regarding the 'progress of the order' and the dates of delivery did not reflect reality, and that he was knowingly or turning a blind eye to misleading information to the plaintiffs. Therefore, according to the correspondence presented on the one hand, and the lack of evidence on the part of the defendants on the other, I am convinced that defendant 2 had no basis to believe that there was even the slightest truth in his promises.