Shabbat Parashat Tzav 5786

P'ninat Mishpat: Undoing a Problematic Partnership – part II

Case: The plaintiff (=pl) and the defendant (=def) started a new business together and signed a partnership agreement. When the prospects for success waned, def arranged for pl to buy out def’s brother-in-law’s 40% of an existing business with def for 365,000 NIS. Pl and def added handwritten modifications to their agreement. Pl started paying in installments, and pl and def went to an arbitrator (=arb) to determine at what point in the payments pl would receive rights in the business. Arb decided that pl would have all the rights of partnership from after he paid 300,000 NIS. Soon thereafter, pl complained to def that he lost access to the security cameras, and the next day he complained to def and arb that all of the cash (appr. 30,000 NIS) in a safe, to which only pl and def had keys, was missing. Arb spoke to def and after discontent with his reaction, rendered a ruling that pl could take 26,000 NIS from the company’s account and hold it in a secure account until matters are sorted out. After unsuccessful attempts to improve trust, arb ruled that pl had a right to exit the partnership. Def claimed that arb was partial to pl, and the matter reached the courts, who appointed Eretz Hemdah to adjudicate. Pl demands back the money he invested (based on par. 6.7 of the contract); 21,000 NIS he spent in arranging the money to invest, or 40% of the business’ profits from the time of his investment; and legal fees. Def counterclaims that pl failed in his responsibilities and therefore should lose rights in the partnership (based on par. 6.8).    

Ruling: Claim of theft from safe: We note that pl’s claim that def stole partnership money is based on circumstantial evidence. However, it is strengthened by the following grossly inconsistent and illogical statements by def.

Pl’s request of def on 3.1.24 to remedy his inability to access the security cameras and pl’s harsh refusal are documented. Def gave different explanations at different points of the conflict, including: “I did not change the code”; “I changed it because the system requires it” (a claim not supported). A report of a communications expert shows the change in code coming from def’s account. This indicates purposeful “blinding” of pl.

The next day, pl complained that money was stolen. Originally, def said that pl was a suspect like he is. However, his final claim in beit din is that the money remained in the safe. He promised evidence from the surveillance cameras, but did not bring any; he said later that the recordings were naturally erased over time. Over multiple opportunities, closer to the time of the event, def did not claim that there was no money missing, the simple response that defuses the issue. It is illogical to not save video evidence. Finally, def’s response of indifference to arb when he inquired, and the failure to get back to arb with the news that no money is missing make the claim lack credibility.

Although we generally refrain from ruling based on circumstantial evidence, the Shulchan Aruch (Choshen Mishpat 15:4) and Rama (CM 99:8) embrace this possibility in cases of definite lying and apparent theft. Therefore, we rule to activate par. 6.7 to return pl’s investment.

We continue with final elements next time.

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