But as the Honorable Justice Danziger ruled, "The contractual engagement is with the company, and therefore, in such a situation, the rule is that the organs and officers are not liable for breaches of the company's contract. There is a separation between the legal personality of the company and the organs and officers who are not liable to anyone who entered into an agreement with the company" (Civil Appeal 313/08 Nashashibi v. Rinrawi, IsrSC 66(1( 398, at para. 43 (2010( (hereinafter: the Nashashibi case). He further added that "the cases in which contractual liability will be imposed on the organs and officers of the company will be more exceptional" (ibid.; Admittedly, his opinion was that of a minority, but not on this matter).
Mr. Zaruk did not establish those exceptional circumstances. Negotiations were not based on bad faith. There was no basis for fraud on Mr. Goldian's part. It should be remembered that according to case law, proof of deception or fraud requires an increased burden of proof, which Mr. Zarrouk did not meet (Civil Appeal 475/81 Zikri Yaakov v. Clal Insurance Company Ltd., IsrSC 40(1( 589, 606 (1986().
- Yes, an improper refusal of a bonus company to conduct an exhaustive accounting was established. However, if any dispute with a company, regarding non-payment of consideration, leads to the imposition of personal liability on its officers, there will be no remnant of the principle of the company's separate legal personality. The mere fact that Mr. Goldian is the living spirit behind a bonus company is not enough, since this is the state of affairs in relation to many officers in corporations. This is not enough to establish personal responsibility. And this line of analysis is fine, with changes that are also necessary for the torts attributed to Mr. Goldian (see the discussion in the Knefler case, at paragraphs 101 onwards). As stated, as I noted above, although Mr. Zarrouk classified the liability as based, in part, on tort law, in fact there is contractual liability on the agenda, since the relationship between the parties was contractual, and his monetary claim is based on the contractual consideration.
- In addition, no grounds were proven for lifting the corporate veil of a bonus company against Mr. Goldian. This is because, according to the case law, "a basic condition for lifting the veil is that a certain person has abused the separate legal personality of the company in an improper manner, which justifies that he will stand personally before the company's litigant" (see the Nashashibi case, at paragraph 80). Such a condition is not established in our case.
- I therefore reject this element of the claim. At the same time, I will note that things are decided on the basis of the current picture of things. If it becomes clear that improper actions will be taken in the future with the aim of avoiding payment of the debt due to the plaintiff, it will be possible to revisit the issue.
Additional Arguments
- In light of my aforesaid conclusions, I am not required to rule on additional arguments raised by the parties (for example, regarding the issue of "establishment fees").
Some of the bonus claims were abandoned at the summary stage, such as her claim that Mr. Zaruk filed a class action lawsuit against some of the company's customers, thereby causing it damage. Since, according to the case law, the arguments that were abandoned at the summary stage should not be addressed (Civil Appeal 447/92 Roth v. InterContinental Credit Corporation, IsrSC 49(2( 102, para. 4 (1995(), I refrained from addressing them.
- I do not accept the argument of the Bonus Company in its summaries in the main claim, that the claim should be dismissed in its entirety, due to Mr. Zaruk's intermittent lie on the core issue in dispute in this case. According to the aforementioned line of thought , Mr. Zaruk claimed that he did not act in the field of proactive collection for authorities. He further claimed that the bonus company was not engaged in the issuance of charges for establishment fees, in order to try to evade the application of the non-compete clause. In this regard, Bonus relies on the judgment of the Honorable Justice Stein Other Municipality Applications 765/18 Hayun v. Hayun (published in the databases; 2019).
However, the reality of the matter is not as sharp as claimed by the defendant.