Therefore, in my opinion, the obligation imposed on Kahane by virtue of the broad wording of the non-competition clause in the activity purchase agreement and the letter of guarantee that he signed, does not indicate the inauthenticity of the agreement. This is because this obligation is also part of the consideration that Kahane provided, personally, for which there was a real need. Had it not been for Kahane's agreement to take upon himself a non-compete limitation, Eisenberg would not have been able to provide the acquiring company with what it wanted.
And the same thing, otherwise: In light of the principle of separate legal personality, Eisenberg has no ability to impose various restrictions on Kahane without his consent, and therefore it is unable to "Sell" The acquiring company has the non-compete restriction on Kahane's part. Eisenberg can "Sell" to the company acquiring the "Product" which she desires - Non-competition on her and Kahane's part - Only if it has the right to force Kahane not to compete with the acquiring company as well. In this situation, it is clear that part of the consideration received from the acquiring company for the purchase of the entire activity is in fact intended to be used for that purpose "Purchase" Kahane's personal undertaking not to compete with the acquiring company for the period of time specified in the agreement. This, as stated, whether in the framework of a separate agreement, in the framework of an expansive provision in the activity purchase agreement and Kahane's personal guarantee for these obligations, or in any other way.
- It should be clarified that in my view, too, it cannot be ruled out that even without an undertaking on Kahane's part, restrictions would have been imposed on him as to the possibility of competing with the acquiring company, by virtue of general provisions of the law. Thus, for example, it is doubtful whether from the moment Eisenberg entered into a non-compete clause with the acquiring company, Kahane, a sole shareholder in Eisenberg, could have hidden behind the principle of separate legal personality and competed with the acquiring company, without this amounting to bad faith, and perhaps even amounting to the tort of causing breach of contract in tort. This is similar to the comment of Justice Amit in the Gangina case, according to which in view of the sweeping language of the non-competition clause in the agreement to purchase the activity with the company, the taxpayers in that case, the owners of the company, could not hide behind the separate personality of the company, and it can be assumed that competition on their part would have amounted to a breach of the duty of good faith:
"Admittedly, this is an agreement that was entered into with Yad Yitzhak and not directly with the appellants - its shareholders. However, in view of the sweeping language of the non-competition clause that prohibited Yad Yitzhak from competing in stores 'directly and/or indirectly in any form', it is highly doubtful whether the appellants could have hidden in this matter behind the separate legal personality of the company they own. In other words, if the day after the conclusion of the sales agreement was concluded, the appellants had rushed to open a competing store under a new name, it can be assumed, with a not low level of certainty, that this would have amounted to a breach of the agreement due to a breach of the duty of good faith" (Gangina, paragraph 20 of the judgment of Justice Y. Amit; Emphasis in the original - 10:20).