In any event, in the said statement of claim there is no reference to the loan, to financing, to due diligence, and certainly to a "fictitious loan" and to a "straw man". Certainly, there is no basis for the claim that Mr. Shimshon became a partner in Super Stock. In any event, Mr. Haimovich did not testify in the proceeding before me, and I cannot attribute evidentiary weight to the statement of claim that he filed in favor of one party or the other.
- Hence, Mr. Haimovitz's statement of claim does not change the evidentiary picture before my eyes.
Examination of Mr. Max's testimony - subjective suspicions are not sufficient
- During Mr. Max's testimony, it emerged that he was hurt by what he heard about Mr. Shimshon, according to which he became a partner in a competing chain, or that he had invested in a competing network through his brother (p. 7 onwards):
The witness, Mr. Max: Simple, let's put it this way, it hurt me personally, that if you claim that he is a friend of mine and went and entered a partner in a competing chain or invested in a competing chain through his brother, it is a personal injury.
The Honorable Judge Gontovnik: But what they say to my lord that it is also my lord's right to be angry because of a personal injury, but what they say to my lord that in such circumstances what is expected to be done is to make an inquiry before taking quite dramatic steps, that is what is said to my lord.
Witness, Mr. Max: I may have done, I don't remember what happened at the time.
Adv. Zilberbaum: Mr. Max, it's okay to say , 'I was personally hurt, that's why I didn't do it, that's the reason.'
The witness, Mr. Max: Maybe, I don't remember.
Q: Don't you remember?
A: I don't remember how I acted at that moment, I remember being with the lawyers, I remember something likethat. How I acted exactly, what I did, you know sometimes you do that you don't think too much [emphasis added].
- It is clear that these words came from the heart. I am willing to accept that from a subjective point of view, Mr. Max did indeed feel a personal injury, which led to considerable anger. Still, the question is whether this was enough to justify what was done?
- Counsel for Max and Mr. Max, Adv. Abramov, was aware of the court's comments regarding the manner in which the agreements, which were heard at the stage of hearing the testimonies, including the testimony of Mr. Max himself, were annulled. Against this background, he noted the following in his summaries: "It is possible that the 'wisdom of retrospect' will indicate that in order to properly manage the event - from a cold and legal perspective - it would have been preferable for Mr. Max to conduct a direct inquiry with Mr. Shimshon. However, we must examine the events through the lens of the life of a reasonable person who grew up as a street cat [...]. In accordance with Mr. Max's healthy instinct, such grave suspicions about the fact that his friend and partner (Mr. Shimshon) were involved in a competing network should be clarified wisely and carefully and not in a direct and undeniable confrontation [...]. Therefore, it is possible to see how Mr. Max acted carefully and gradually until the cancellation notices were issued into the agreements. By the way, a mirror image is obtained from the similar conduct of Mr. Shimshon, who also presents himself as having managed a grocery store from the age of 12 [...] and also chose not to inform and/or contact Mr. Max directly at any stage" (paragraph 33 of the summaries).
Indeed, the same business instinct of Mr. Max was expressed in his testimony, where he stated that he knew Mr. Shimshon's brother, and that there was still no reason why his brother, who was not connected to the aforementioned field of activity, should suddenly become one of the founders of the Super-Stock chain. "You know how much these stories can be told" (p. 108, s. 17); On the other hand, Mr. Shimshon knows one of the other shareholders in the Superstock company, and has even carried out due diligence according to Mr. Max (ibid., s. 17).
- Thus, it is possible to understand Mr. Max's subjective suspicions, which are consistent with healthy business senses. Still, the contractual duty of good faith cannot be relied upon alone. This is not an independent personal activity, but rather a franchise agreement, and this agreement has several parties. Alongside the personal injury that Mr. Max felt, there are the franchise owners, who have changed their situation, and relied on a commitment to joint and long-term activity. Against this background, the cancellation of the franchise cannot be done on the basis of feelings and senses - however sharp they may be. It requires a justification that can be substantiated, and the basis is measured by objective criteria. Contrary to the beautiful argument that has been raised, this is not a matter of retrospective wisdom or cold and legal evidence, but rather of the legal duty to take into account the interests of the other party, of the partners in the business journey. This is the essence of the overarching principle of contractual good faith. And this essence was violated in the present case.
Mr. Max chose not to conduct direct inquiries with Mr. Shimshon, and not to confront him directly. He chose to act on the basis of his subjective and business suspicions, which, according to him, were decisively strengthened in the work of Investigator Aviani. However, his subjective position was not translated into an objective basis that could justify such a dramatic and offensive step of canceling the franchise agreements.