(b) If a contract is conditional on a terminating condition and one party caused the condition to be fulfilled, it is not entitled to rely on its fulfillment.
(c) The provisions of this section shall not apply if the condition was something that the party was, according to the contract, free to do or not to do, and shall not apply if the party prevented the fulfillment of the condition or caused its existence not maliciously or negligently."
- Here it should be noted that a "condition" is "an uncertain event, external to the contract, which conditions the contract. There are therefore two main requirements inherent in the definition of the condition: the requirement of uncertainty and the requirement of externality" (Contract Law, at p. 585)" and that "in relation to the requirement of externality it is stated there..."The meaning of the requirement that the condition be external to the contract is negative. In other words, that the condition will not depend only on the behavior of the parties. The uncertainty of the condition stems from its dependence on external events, which, even if the parties may influence them, they do not control them... In most cases, a condition refers to an event external to the contract and the behavior of the parties. An event that depends on the conduct of one of the parties or is regulated by the contract is usually a contractual stipulation, the non-fulfillment of which constitutes a basis for a cause of action for breach of contract" (the Levy case).
- In fact, "Section 28(a) of the Contracts Law derives from the principle of good faith, and constitutes its concretization...Section 28(c) of the Law states that the provisions of section 28(a) will not apply when the condition was something that the party to the contract was free to do or not to do according to the contract and in the absence of malice or negligence. This clause lists two alternatives: the freedom to act in accordance with the provisions of the contract, and the absence of malice or negligence... Thus, the principle of good faith is also reflected in the limitation to the scope of application of sections 28(a) and (b) of the Contracts Law. According to section 28(c), an action made in good faith is protected, and does not lead to the application of the provision of section 28(a) and (b) of the Contracts Law. The focus of section 28(a) and (b) of the Law - which imposes contractual liability on a party to a contract - is to prevent the existence of a suspension clause (or the existence of a terminating condition) in bad faith by that party" (Levy case; Gabriela Shalev and Effi Zemach, Contract Law, (Nevo Publishing Ltd., Fourth Edition, 2019). And for our purposes.
- First, in view of the contractual fabric that we discussed above, we are of the opinion that the provision qualifying for the acceleration amount should be classified as a contractual stipulation and not as a conditional obligation. This is because the requirement of externality is not fulfilled in our case.
- Second, we do not believe that an equal derivation should be learned from section 3 of the Severance Pay Law, 5727-1967, which is entitled "When dismissal does not infringe rights", i.e., "dismissal close before the first year of employment", as the National Court learned in the Levy case, in a case where dismissal is made shortly after the first year of employment. This is not a mirror image. The rationale underlying section 3 of the Law, regarding the timing of dismissal, is consistent with the provision of the law that establishes entitlement to severance pay at the end of the year of employment. In addition, the law deals with a cogent right to severance pay to which every employee is entitled at the end of a year of work. This is not a contractual right, which was given to the employee after negotiations, and whose economic value is incomparable to the economic value of severance pay.
- Thirdly, the judgments referred to by the plaintiff in the Saida case and in the Kovacs case, as well as the judgments in the Microsoft case and the judgment Labor Appeal (National) 1168/04 Mordechai Blau v. N Base Communications Ltd. (29.5.2005) (cited therein) are not similar to the evidence. These rulings deal with the issue of granting options to high-tech employees whose purpose is to incentivize an employee to remain with the company for the date set for the exercise of the option, so that the maturation of the options and their exercise is contingent on the employee being an employee of the company for a minimal period of time, when the employer is 'clever' and seeks to terminate the employment exactly before the desired exercise. However, in this case, we are dealing with the opposite order. This is because it ostensibly 'encourages' the employee not to stay in the workplace for a minimal period of time. Thus, and additionally, in this case there is no dispute that the dismissal itself was justified, and even according to the plaintiff's position, Akamai should have fired him on the day of his enlistment, in contrast to the findings made in the Kovacs case, in which it was held that the plaintiff's dismissal was done for irrelevant reasons only in order to thwart her entitlement to the granting of options; and in the Levy case , in which the Regional Court held that "We are of the opinion that the dismissal of the plaintiff, even though it was allegedly carried out in a proper proceeding, was done in bad faith. It is also reasonable in our opinion that the plaintiff was fired so that the agency would not be required to transfer the customer portfolio to him, as he claimed." Therefore, the National Court ruled that "with respect to the unique situation before us, in which the condition for the transfer of the clients was thwarted due to the respondent's lack of good faith, the employment contract is silent in the sense that the parties to the employment relationship did not relate to this possibility at all. Therefore, we turn to prepare its completion in the light of general contract law, and especially in light of the principle of good faith and its derivatives."
Conclusion
- Therefore, the claim should be dismissed.
- The plaintiff will bear the expenses of defendants 1 and 2 in the total amount of ILS 20,000, the expenses of defendant 3 in the sum of ILS 20,000 and the formal expenses of the defendant in the sum of ILS 2,000, which will be paid within 30 days from today. In the framework of weighing the costs, we took into account both the considerable sum of the claim (approximately ILS 12 million), the relatively short duration of the proceeding, on the one hand, but its complexity, on the other, and the manner in which the defendants proceeded in submitting response summaries to the summaries of reply.
It is possible to appeal to the National Labor Court within 30 days of the date of the judgment.
| It will be given today, March 18, 2026, in the absence of the parties and will be sent to them. |