It should also be noted that the claim was first raised about 3 months after delivery when the season was at its peak. Claims of non-conformity should be raised close to the delivery date and not for such a long time after that date.
It should be noted that the plaintiff's representative actually cooperated with the defendant and expressed his willingness to exchange the shirts, but refused to do so before paying for them.
- In light of all of the above, the defendant's argument that the plaintiff did not cooperate with the defendant in marketing the box is rejected, and therefore the sole blame for the collapse of the project does not fall on its shoulders.
I am of the opinion that the postponement of the launch event to such a late date after the start of the season is apparently the main reason for the failure of the project, and the defendant did not prove that the blame for this lies in the plaintiff's conduct.
On the other hand, the sale of the same products by the plaintiff on the website, in parallel with the marketing of the box, is a breach of the plaintiff's undertaking to act to promote the marketing of the box, and it can be assumed that the defendant suffered damage as a result of this failure of the plaintiff - compensable damage.
However, the defendant did not produce any data or evidence to prove his damage, except for a list of costs that he invested in the entire project. The absence of a right column detailing the sales data of the boxes, especially during the period when the plaintiff sold its products on the site, raises a difficulty in estimating the damage.
Other Municipal Applications 355/80 Natan Anisimov in Tax Appeal v. Tirat Bat Sheva Hotel in Tax Appeal IsrSC 35 (2) at p. 800:
"Just as the injured party must prove the damage caused to him, so too he has the duty to prove the factual data, from which the compensation, i.e., the monetary value of restoring the situation to its previous state, can be deduced. An injured party does not fulfill his obligation to prove the damage, but must also lay a factual basis for determining the amount of compensation. This last matter should not be left to the judge's assessment. According to our approach, the victim, who seeks to receive compensation under section 10 of the Drugs Law, has the burden of creating a factual basis that will enable the court to assess the extent of the damage on the one hand and the amount of compensation on the other."