From the aforementioned correspondence, it emerges that the parties reached an agreement regarding the date of the severance of the contractual relationship, and therefore there was no reason to set another reasonable date (six months from April 1, 2021), from the date of the actual severance of the relationship, which entitles the respondent to advance notice fees. For our purposes, what was said in Other Municipality Applications 8191/16 Dyalit in the Tax Appeal v. Harar [published in Nevo, June 17, 2019] regarding primary and secondary charges is as follows:
"The cancellation of a contract leads to the cancellation of the obligations that are intended to fulfill the purpose of the engagement between the parties ('primary' charges); Obligations intended to regulate the legal relationship following the cancellation of the contract ('secondary' obligations) continue to apply (on the distinction between primary and secondary obligations, see: Daniel Friedman and Nili Cohen Contracts, Vol. 4 (2011)). Moreover, sometimes even charges that are perceived as 'primary' will continue to apply and bind the parties at the end of the contractual period, to the extent that the parties have expressly agreed to apply them." (emphasis mine-A.K.)
Therefore, it is of course possible to stipulate and establish secondary arrangements for the severance of relations between the parties, such as the manner in which the relationship is restored, as long as the stipulation does not contradict public policy (see: Civil Appeal 156/82 Lipkin v. Golden Generation Ltd., IsrSC 39(3) 85, 93-97 (1985); Civil Appeal 324/84 Fishel Eisman in Tax Appeal v. Urieli, IsrSC 41(2) 421, 441 (1987); Additional Hearing 20/82 Addressing Building Materials in an Appeal under the Disabled Persons Law v. Harlow & Jones, IsrSC 42(1) 221, 262 (1988); Civil Appeal 187/87 Levy v. Deutsch, IsrSC 34(3) 309, 317 (1989) hereinafter: the Deutsch case). Therefore, it was ruled in the Deutsch case that "in light of the principle of freedom of condition, there is no impediment for the parties to adopt for themselves an arrangement different from that prescribed by law with regard to the relationship between the acts of cancellation and restitution. Thus, the parties can determine in the contract between them that the cancellation of the contract will be perfected by the performance of some obligation, such as a monetary obligation."Similarly, the parties in our case agreed at the end of the day on the date of termination of the contractual relationship, and no other date should be set by awarding advance notice fees to a later date.
- Second, in order for the court to be able to award advance notice fees at the end of an agreement for an indefinite period, it was necessary to decide the question of whether the respondent breached the agreement in a fundamental breach. I am of the opinion that if it is determined that the respondent has breached the agreement in a fundamental breach, he is not entitled to advance notice fees. The trial court discussed the claim of infringement from another aspect, namely a breach of the competition stipulation claimed by the appellant. The trial court did not hear the appellant's claim that the respondent breached the agreement by employing his wife as the store manager. There is no dispute that the respondent employed his wife as the store manager despite the fact that it was agreed in the agreement between the parties that the respondent would manage the store himself when he noted that "the franchisee undertakes to personally manage the store" and that the appellant agreed to sign the agreement based on the respondent's personal skills. Therefore, a breach of this stipulation constitutes a fundamental breach of the Agreement.
My colleague Justice Attias is of the opinion that the allegations of breach of the agreement are inconsistent with the notice of March 1, 2021, where no claim of breach of the agreement was made, and these were raised retroactively after the notice of cancellation of the agreement was given. My colleague further held that there was no error in the decision of the trial court, when it did not decide this dispute, in light of the procedural arrangement reached by the parties, and since no evidence was heard in this matter. Finally, it held that it cannot be said that the breach is a fundamental breach that cannot be corrected, especially when the respondent's wife managed the store and not the respondent from the beginning of the engagement. I will not be able to join these assertions.