Cause of action:
- A perusal of the counterclaim filed by the respondent shows that the cause of action regarding the advance notice fee was based solely on the provisions of the law. In paragraph 35(c) of the statement of claim, the respondent requested a remedy of "compensation for a breach of the Agency Contract Law, which includes; Compensation for failure to give advance notice by virtue of Section 4(a)(7) of the Agency Contract Law in the sum of ILS 46,296. In the opinion that the respondent attached to the counterclaim, the calculation was also made in accordance with the provisions of section 4 of the Law, and at the end of the day the trial court adopted this amount. Even in the summaries submitted by the respondent, he sought to award him advance notice fees, on the basis of the grounds set forth in the law, and not on the basis of the general law (see: page 4 of the respondent's summaries). With this in mind, the cause of action regarding the advance notice fee was based solely on the provisions of the law.
My colleague Justice Attias accepted that this was a ruling on a cause that was not claimed, but held at the same time that "the trial court was entitled to base its ruling on a legal cause of action different from the one claimed in the statement of claim, provided that the facts requiring it were argued in the statement of claim."Indeed, the case law in this matter has determined that where a court has a factual system that formulates a right of one party and a duty to the other, and to the extent that these facts were argued from the outset, its legal reasons can differ from those raised in the lawsuit, provided that the picture derives from the evidence that the parties had the opportunity to address (see: 7288/12 Rosen v. Abramovich (Nevo, October 23, 2012)).
- I agree with this conclusion of my colleague. I will further note that the appellant herself sought to apply the provisions of the General Contract Law, when she claimed in paragraph 11 of the statement of defense that since the option was not exercised by giving notice by the respondent, the agreement continued to apply by way of conduct, and in the circumstances of the case, the provisions of the law apply accordingly, according to which an agreement that has been terminated and the parties continue to act in accordance with it, can be terminated by a notice of one party to another a reasonable time in advance (in addition, see paragraph 3 of the appellant's summaries in this regard). Since the appellant sought in her pleadings to apply the general law, she cannot now be heard on the argument that the court erred in awarding compensation according to the general law and not in accordance with the provisions of the law.
Eligibility for advance notice fees according to the general law:
- Contrary to my colleague's position, I am of the opinion that the trial court erred when it awarded advance notice fees in the specific case due to the termination of the agreement within 30 days, i.e., on April 1, 2021, for several reasons.
First, once the parties have agreed that the agreement will expire on April 1, 2021, the respondent can no longer be heard on the grounds that he is entitled to advance notice fees beyond that date. In the first notice sent by the Appellant to the Respondent on March 1, 2021, it requested to terminate the contract on March 31, 2021, claiming that the agreement between the parties had ended. This letter did not mention any other reasons. Initially, the Respondent objected to the termination of the agreement and claimed in a reply of March 1, 2021, that the letter was inconsistent with the agreement entered into between the parties, according to which the agreement was extended in 2018 for five years, and the termination date was supposed to be in 2023. Taking this into account, the Appellant sent a letter on March 4, 2021, through her counsel, in which she claimed that the Respondent had breached the agreement, inter alia, due to the fact that the Respondent's wife manages the store while the Respondent severed all contact with the store, in contravention of the provisions of the agreement. In this letter, the Appellant reiterated the notice of cancellation and announced that the cancellation would take effect on April 1, 2021. On March 9, 2001, the respondent sent a letter of reply through attorney Dalia Ben Abu, in which he denied the allegations against him regarding the breach of the agreement, without specifying a counter-version of the breach claiMs. He further argued that due to the breach of trust between the parties, and with no other choice, he accepts the appellant's desire to terminate the contractual engagement between them, and after an inventory count that will be done and additional conditions are met, a final calculation will be made on April 8, 2021. On March 15, 2021, counsel for the appellant sent a letter in which, inter alia, he welcomes the pragmatic approach of respondent Ben Waga's counsel to the termination of the contractual relationship, and suggests that another person be appointed to manage the store, in which case it is possible to consider the continuation of the contractual relationship. Alternatively, counsel for the appellant suggested that the agreement be terminated on April 30, 2021. In an email sent by the respondent's counsel, it was stated that the respondent insisted on the "disengagement arrangement" stated in the letter of March 9, 2021, and therefore insisted that the agreement would end on April 1, 2021. As to the suggestion that the Respondent's wife be replaced by another manager, the Respondent rejected the proposal, stating: "... In light of the harsh allegations that were directed against my client and his wife, unjustly and unlawfully, there is no reason to consider the continuation of the engagement between the parties."