Therefore, while in the Berger case the course of the hearing revolved around the question of whether the test of expectation as existing in section 6(e)(1) applies with respect to force majeure and circumstances that were beyond its control, and the question is how it was prepared in advance, in our case there is no need at all for a discussion as to whether it could have prepared in advance as in section 6(e)(1) or what actions it took to neutralize the malfunction, as stated. The existence of the specific exemption in the law is intended in the case of the cancellation of a flight to prevent the desecration of the Sabbath, and it should be seen as an explicit arrangement of the legislature that has chosen to explicitly exclude the issue of desecration of the Sabbath as an independent cause of exemption, as opposed to ordinary technical malfunctions. Since there is no dispute between the parties that the flight was formally canceled in order to avoid desecration of the Sabbath or holiday, then the defendant met the burden imposed on it in order to protect under the protection of the legislature in section 6(e)(3) of the Law.
- In the margins, but not in their importance, it can be said that if the purpose of the protection in the section is to enable the observance of the mitzvah of Shabbat or the holiday by the crew and passengers (a point that was apparently discussed by it in the past, according to the customer relations representative in his testimony) and not to force them indirectly to desecrate the Sabbath or the holiday, when it comes to an Israeli company that takes a position towards observing the Sabbath in the public sphere in relation to the removal of all its planes without distinction between passengers or crew members (similar to the official shutdown of public transportation in most parts of the country Haaretz on Shabbat as part of the status quo arrangement, and without going into the question of what is enshrined in legislation and what is excluded and whether the passengers or crew observe Shabbat in their own home) taking into account the fact that the State of Israel is a "gold stock in society", literally, the question arises as to what is the operative meaning of "avoiding the desecration of the Sabbath or holiday". It can be said that according to a narrow interpretation, "desecration of the Sabbath or holiday" refers only to the flight itself, and this is the line taken by the defendant, and not to the reasonable ability of airborne passengers, and even crew members, to leave the airport and reach their home before the start of the Sabbath or holiday. Therefore, if the purpose of the protection in this section is to protect passengers and crew, then an airline that wishes to prevent the desecration of the Sabbath or holiday must prevent flights that are supposed to land close to the beginning of the Sabbath or holiday, for example, up to two or three hours before the beginning of the Sabbath. We have therefore exhausted the difficulty that even if the flight had been scheduled for landing four hours earlier, and the malfunction had not been resolved four and a half hours, the result would have been similar, and the airline is still not obligated to pay any compensation or benefit whatsoever. Moreover, the purpose of this protection is to refrain from desecrating the Sabbath or holiday in relation to passengers in a way that does not allow the opening of Shabbat desecration due to the defendant's actions - even though at the end of the last session on the preparation of the bill for the second and third readings, MK Eichler congratulated MK Tibi "that from the first moment he took into account the issue of the sanctity of the Jewish Sabbath and promised and fulfilled that in the event that flights would be delayed because of the observance of the Sabbath, No one will be harmed, and thanks to Shabbat, the Holy One, blessed be He, will protect us and the entire House of Israel" - it seems that it boils down to the flight action itself. While the legislature, as will be clarified, referred to specific cases in which a person who refuses an alternative flight for reasons of religion (for example, that the time of arrival on the scheduled flight at the end of Shabbat will be followed by a desecration of the Sabbath) will not be recognized as a refusal that may also lead to an exemption from statutory compensation, it did not make this as a sweeping categorical generalization with respect to the indirect consequences of desecration of the Sabbath where the flight lands close to the beginning of Shabbat or holiday or departs close to the end of Shabbat or holiday. As he did with regard to the cancellation of a flight in order to prevent the desecration of the Sabbath or holiday. Otherwise, if the intention is to expand the prevention of desecration even in relation to the problem that exists for people to reach their homes before the start of the holiday, then an airline seeking to rely on the exemption by virtue of section 6(e)(3) of the Law - cancellation in order to prevent the desecration of the Sabbath or holiday - would be prohibited from scheduling flights whose landing date is close to the beginning of the Sabbath at the place of destination. This point is interesting. Halacha forbids walking a long distance on Friday, even if, according to the plan, he arrives at his home before Shabbat, precisely for the reason that something bad will happen and he will be delayed and reach the point of desecrating Shabbat or canceling oneg Shabbat ("One does not walk more than three parasot, so that he will arrive at his home during the long day, and he will be able to prepare the needs of the meal for Shabbat. Whether he goes to someone else's house or to his own home (SA, Orach Chayim, 249:1). Thus, it was ruled that in the case of a ship where there is a concern of desecration of Shabbat, one should not leave even on that day (the Appeals Committee of Orach Chayim 248 1 in Sifa said that if the voyage is less than a day and arrives before Shabbat, it is permitted by law and only in a place where it is customary to be stringent is it forbidden). If the intention was to expand the prevention of desecration from a halachic point of view, then there was sweeping reference to the aforementioned flight schedule (and not only individually to those who specifically refuse an alternative flight for religious reasons), including also with regard to the departure of the flight at the end of the holiday, which was set for 19:20, when the holiday departed at that time at 18:40, and if the passengers are located in a hotel outside the airport and are supposed to arrive at the flight a few hours earlier, It is clear that they will desecrate the holiday.
The consideration of causing a desecration of the Sabbath to another, all the more so that it is a Shabbat-observant airline that wishes not to desecrate the Sabbath by canceling a flight, did not receive legislative expression in this context of section 6(e)(3) of the Law, but it did receive such a response within the framework of the passenger's right to refuse to accept an alternative flight where an alternative flight was offered and the passenger refused, and this exempts the airline from providing statutory compensation, for reasons that, inter alia, "religion" includes "for security reasons, religion or medical disability" ( section 6(d) of the law) - something that was already expressed in the bill for first reading. This does not necessarily obligate him to find an alternative flight, but because he is effectively deprived of the ability to choose between an alternative flight and a refund and is forced to pay a refund, the airline risks paying statutory monetary compensation and may and may even be obligated to pay exemplary compensation (see section 6(a)(2) of the Law as a list of the sections whose violation allows for compensation, for example - Civil Appeal 70166-06-25 Arkia International (1981) in Tax Appeal v. Nir Ephraim Yosef Tal (7.11.25)) Therefore, according to this line, its obligation does not end with an alternative flight offer on Shabbat, even if it is a "secular" airline, and the passenger will not lose his entitlement to statutory financial compensation and assistance services until the date of the alternative flight. To teach you that the legislature has chosen to consider a situation of desecration of Shabbat, but from the perspective of a specific passenger under the material intended to protect him, where a flight is canceled, and the matter of offering an alternative flight or a refund of consideration of the passenger's choice is a cogent obligation, and even if the airline has an exemption from paying statutory compensation, this does not exempt it from the assistance services. This is not the case with regard to setting flight dates when landing close to Shabbat in terms of imposing additional obligations on the airline. It seems that the rationale is also different. A place where a flight is canceled for a religious traveler, he has no ability to choose a place where he is offered an alternative flight on Shabbat or near the end of Shabbat (which from a halachic point of view is considered a weekday) when he is in a remote place and then in fact he is forced to receive a refund and take care of an alternative flight himself, which from moment to moment can even be much more expensive and not under the same conditions as the original flight, and all this after he has already entered into a deal and paid for the flight ticket (when the law does not discriminate regarding the refusal The alternative flight for reasons of the mother's religion is due to the fact that the flight offered is on Shabbat or close to the end of Shabbat in such a way that the passenger is unable to arrive unless he desecrates Shabbat and therefore this can be recognized in relation to both cases). In this regard, it should be noted that even without the explicit legislation granting the right of refusal on religious grounds, the courts have recognized the entitlement to compensation where an airline does not allow an alternative that does not involve the desecration of the Sabbath as one that did not provide an appropriate alternative). In fact, even before the enactment of the Aviation Services Law, the case law recognized the right of a religious passenger to refuse a flight that was scheduled to land in Israel on Thursday morning and to move to a flight that lands in Israel on Friday morning as a reasonable refusal, even where there is ostensibly no fear of desecration of the Sabbath when the flight is supposed to land in Israel on Friday morning, due to the fear of mishaps that may cause the flight to be delayed. It was ruled that even if, according to the terms of the ticket, El Al is entitled to change flight dates due to constraints, even if it believes that there was no concern of desecration of the Sabbath and claims that it is strict regarding the landing times of flights on Fridays and regarding their departure after the end of Shabbat, and that a special committee has been convened in this regard with the participation of rabbis who approve the flight hours, and that great care is taken to ensure that the defendant's passengers do not desecrate the Sabbath and do not even find themselves in a situation of fear of desecration of the Sabbath - it does not may force him to take the flight and that the flight can land right near the beginning of Shabbat due to malfunctions in the plane, and then he may find himself spending Shabbat in a foreign place, and in view of this, El Al was charged the difference between the original flight ticket and the one that returned with him to Israel (see Small Claim 2746/07 Lobel Natan v. El Al Israel Airlines in Tax Appeal (August 9, 2007)). On the other hand, a passenger who purchases a flight ticket and is a religious traveler has the ability to choose when to purchase the flight and not be tied to the deal in the first place, when the landing time is 50 minutes before Shabbat. In other words; Even if it causes the desecration of Shabbat indirectly by the time of landing close to the beginning of Shabbat, it can be said that the passenger's ability to avoid this is greater by not purchasing a ticket, in the sense that this is like "the buyer should be careful". In this regard, the defendant's customer relations representative, Mr. Avi Zamir, commented that it is the customer's choice if he takes a flight that has a chance of being late, for example, a customer who lives in Eilat, even if El Al lands 3 hours before the holiday, he will arrive after the holiday and that "a passenger knows exactly what times and flights he buys" and therefore EL AL does not surprise him. When the absence of compensation is also not a surprise, since this is the law and the passenger is also informed about the law through the defendant.