With regard to the failure to raise the claims, the appellant offered an explanation as to why in the first letter she did not detail the subject of the violation relating to the employment of the respondent's wife, in order not to enter into sensitive issues related to the respondent's wife. However, when the Respondent insisted on the existence of the agreement until March 2023, the Appellant was forced to detail the reasons for the cancellation immediately afterwards. The respondent did not present an alternative version either in the reply letters or in the pleadings, and did not deny that the store was run by his wife. I will further note that the allegations of dissatisfaction with the management of the store are also supported by the email sent by the appellant to the respondent dated December 23, 2020, in which the appellant asked to meet with Hashi and his wife about manot to discuss "the format of the store's continued operation in light of the need that arises to promote the store and its management...".
As I stated above, this is a fundamental breach of the agreement. The evidence did not indicate when the respondent's wife was employed as the store manager and therefore it is not possible to determine that she managed the store from the beginning. The mere fact that a notice of cancellation was not sent on this grounds at an earlier date does not turn the breach from a fundamental breach into an ordinary violation, but rather it grants the violating party the right to remedy its violation. This was discussed by the Supreme Court in Other Municipal Applications 8741/01 Micro Balanced Products v. Halavin Industries Ltd., 57(2) 171 (2003), when it ruled that "even where the parties to the contract have agreed that a certain breach will be fundamental, it is possible that it will dress up as a non-fundamental breach. The expiration of the reasonable time for the issuance of a notice of cancellation due to a fundamental violation may require an extension. When a reasonable time has passed since the fundamental breach became known, and the injured party did not send a notice of cancellation, the breach does not become a non-fundamental violation, nevertheless the fundamental breach acquires one of the characteristics of a non-fundamental breach, i.e., the need to grant an extension prior to the issuance of a notice of cancellation." (My emphasis - A.K.). The Appellant gave the Respondent an opportunity to correct the breach when she suggested in a letter dated March 15, 2021 that another manager be appointed for the store, but the Respondent explicitly refused this offer and insisted that the agreement be canceled. In doing so, the respondent waived the possibility of correcting the breach, and the fundamental breach remained intact. Therefore, when the agreement has been fundamentally breached, there is no reason to award advance notice fees.
- Third, even if I assume that the respondent is entitled to advance notice fees under the general law, the respondent did not bother to prove all its foundations, and especially what is the reasonable length of the period of entitlement, in the circumstances of the specific case. In my opinion, it is not possible to infer in this matter from the provisions of the General Law Law. In order for a court to be able to determine the duration of the reasonable period for the notice of cancellation to take effect, in an indefinite agreement in time, an appropriate evidentiary basis must be assumed. And what is this supposed to say? In determining the length of the reasonable period for canceling an indefinite agreement, according to the general law, a variety of considerations must be taken into account and according to the case law. This was discussed by the Supreme Court in Other Municipality Motions 442/85 Zohar v. Mavodo Travenol Ltd., IsrSC 44(3) 661 (1990) (hereinafter: the Zohar case) when it ruled at p. 704:
"The reasonableness of time is determined by the goal that underlies it. When the notice is given by the manufacturer, its purpose is to allow the distributor to enjoy the fruits of his investment in time, money and labor, and to enable him to receive the profit, for which he built a market and designed customers."