The witness, Mr. Oz: Yes.
Adv. Fruchtman: So he lied?
The witness, Mr. Oz: He didn't lie, he says that in the end it was a draft.
Adv. Fruchtman: No, no, he said he didn't sign the contract with them.
The witness, Mr. Oz: If a contract is signed by one party, is it signed?
Adv. Fruchtman: Yes.
The witness, Mr. Oz: Okay.
Adv. Fruchtman: He signed, Raz signed a contract in May?
The witness, Mr. Oz: I remember they came to our offices, the goal,
Adv. Fruchtman: In May?
The witness, Mr. Oz: No, no, before.
Adv. Fruchtman: May ago,
The witness, Mr. Oz: Let's say, I don't actually remember dates.
Adv. Fruchtman: Do you remember when they came to your offices and what they did in the offices?
The witness, Mr. Oz: At some point, the three of them came to the offices together, the purpose of which was to sign a contract.
Adv. Fruchtman: Was there a purpose to sign a contract, and they signed the contract?
The witness, Mr. Oz: To my memory, yes.
Adv. Fruchtman: And are these contracts in "Kolmeid"?
The witness, Mr. Oz: Nope.
Adv. Fruchtman: Where are these contracts located?
The witness, Mr. Oz: Apparently they were shredded, apparently, they are not with us. We looked for them, they are not with us.
(pp. 86-87 pp.)
- The affidavit of Yogev Oz and the defendant also does not state when the agreement was signed (paragraph 20 of Yogev Oz's affidavit). The agreement was concealed from the court at the beginning of the proceeding. Our conclusion is that the plaintiff signed even earlier. Throughout the defendant's cross-examination, his answers regarding the signing of the agreements were evasive. He used the words "I don't remember" a lot, and in practice it emerges from his testimony that although in June 2022 an agreement was signed by both parties, but from Yogev Oz's interrogation (p. 86, line 20) we learn that the plaintiff's three employees signed an agreement in May 22, which also included the legal defense clause. After two employees retired, a new discussion was held with the defendant, the terms were improved, and a new "legal" agreement was signed, as the defendant put it.
- In view of all of the above, we do not trust that the signed employment agreement was not found by the defendant. A party who refrains from bringing evidence in his possession can be concluded that if the evidence had been brought, it would have been able to act against him (Civil Appeal 548/78 Noa Sharon et al. Yosef Levy, IsrSC 35(1), 736; Civil Appeal 465/88 Bank for Finance and Trade in Tax Appeal v. Salima Matityahu et al. IsrSC 45(4), 651; Civil Appeal 55/89 Koppel (Self-Driving) in Tax Appeal v. Telcar Company in Tax Appeal IsrSC 44(4), 595). From the defendants' refusal to present the agreement to the court, we conclude that the provision of this evidence was detrimental to the defendants.
- The conduct of the defendants attests to a lack of good faith on their part.
The tort of causing breach of contract
- The tort of causing breach of contract is a tort enshrined in section 62 of the Torts Ordinance [New Version]. This is an intervention by a third party that knowingly causes a breach of a valid contract between two other parties. In order to prove this tort, we will examine below whether the elements of the tort were fulfilled in this case:
- The existence of a binding contract - in this case , the defendant and the plaintiff entered into an employment agreement. This is a legally valid contract between two parties.
- The defendant (the third party) knew of the existence of the employment agreement that she had caused to violate. In addition, the defendant admitted that she knew that there was a non-compete clause in the employment agreement.
- Breach of contract - The plaintiff proved that the employment agreement was breached when the defendant contacted the plaintiff's customers.
- The breach party knew about the existence of the contract and its breach - the defendant contacted 3 of the plaintiff's employees and promised the employees legal protection against a personal lawsuit against them. The defendant tried to enter the plaintiff's business, in a field in which she had not previously dealt (testimony of Yogev Oz, p. 89, line 8). The defendant decided to enter the plaintiff's areas of occupation and it appears that she acted to shorten the path for herself by employing the plaintiff's employees.
- The defendant caused a breach of contract when she approached the defendant with an offer to move to work for her, and later when she used the data and connections he brought with him. The plaintiff proved that the agreement was actually breached, as a result of the defendant's intervention (third party). The agreement was breached when the defendant approached the plaintiff's customers, all with the defendant's encouragement. The defendant was aware of the commitment of the key employees in the plaintiff regarding the restriction on contacting customers or regarding the non-compete clause and therefore granted them legal protection:
Adv. Fruchtman: And confirm to me that you knew that the Lankri employment agreement contains acceptable obligations of confidentiality, non-competition, and restriction of contacting clients.