He added: "Second, I have known Adi, I have known Toby for many, many years, I have also known Toby for many, many years through Adi and I knew what their attitude was, especially Adi's, regarding there is a very, very fundamental difference between, as you know, between a partnership and a company, in a partnership the responsibility is together and separately for everything, Toby is a shrewd businessman, he is very jumpy and temperamental, and he can very easily meet with someone and say, come on, let's make a deal, shake hands and do it. Such connections, and with good intentions, not out of God's forbid to deceive anyone , and in partnership the responsibility would also fall on Adi and Adi was not willing to make arrangements of this kind, and therefore it was always within the framework of a company" (p. 266 of the minutes, paras. 30-34 and p. 267, paras. 1-5).
He further testified that he had never heard from the parties that they maintained or wished to maintain a partnership between them in the legal sense, otherwise of course he would have handled it differently (p. 268 of the transcript, paras. 14-11; see also p. 269, paras. 26-28).
- Hayek's testimony was not contradicted, and I must note that in view of my direct impression of it, it is fully acceptable to me, and even fits in with the rest of the circumstances and evidence. His testimony carries great weight, as the person who established the relevant companies for the plaintiff and defendant 1, and it strengthens my conclusion that no intention was expressed to establish and/or manage a partnership by any of the parties, and that their conduct was in a corporate framework of companies.
E10 Reference to Testimonies and Additional Evidence
- Testimony of Adv. Paran: In paragraph 5 of his affidavit, this witness says that the plaintiff and defendant 1 were partners in many different companies, sometimes only both of them and sometimes with others. This argument is general and vague. A lawyer is supposed to know what a corporate structure is and that as a rule, there is no partnership when a company exists, except in special circumstances. In the absence of any additional factual context or explanation for these matters, or a detail of why the relationship between the parties meets the conditions of the legal definition of "partnership" despite the existence of a company, the general argument does not support the plaintiff's claims, but rather undermines them and leads to the fact that no real weight should be given to this testimony.
- Later, the witness was asked about the distinction between the common interests of partners and shareholders:
The Honorable Judge Shaked: I have two partners in quotation marks, one case, they are partners under the Partnerships Ordinance, they registered, they did not register a partnership, this is case A, they are interested in the good of the partnership and its advancement. Case B, two partners in quotation marks, that is, shareholders in a company who also want to promote the company and even present themselves as laymen as partners in the company, and here Sir I have to tell you how my lord determines a question, in the last situation, situation B, they are actually situation A, should they be considered as a partnership as defined in the Partnership Ordinance? I want to understand how Sir in his view in general and in this particular case, because this is what is important to us, in particular, he thought this way and not the other.