Ronen, p. 227 S. 8-10.
Ronen was referred to what was stated in Danan's statement of claim according to which she 'swallowed the bitter pill' (see above) and did not provide a convincing answer to it, let alone a convincing answer; including the witness referred to the statements as if they were included in an email message (even though he was referred to the fact that it was 'his') and then said something about the lack of authority, a claim that had not been raised up until that time and was not repeated in the summaries (p. 226 Q. 12 - P. 228 S. 3).
- The person who served as chairman of the board of directors of Lehavot testified about meetings with Danan people in which he personally participated in July 2017, that In these meetings, they claimed They were losing money on the bus sector, they did not want to deal with it, and there was talk of updating the agreement so that it would relate only to the hoods (Yossi, pp. 27, 14-18; and see also: "The buses have completely dropped. They told us that they don't want to deal with the fact that they are losing on it", pp. 29, 14-15). The witness confirmed that there was activity by Danan in the field of buses, but that Danan's people explicitly said who are not interested in it (p. 35, s. 26 - p. 36, s. 5), and testified that the activity in this field had declined greatly even before the meeting; "They were not in a position to provide this service, they claimed that they were losing, [...] When we met, we met to examine the continuation of the work and the agreement. The agreement was buses and hoods. You're right, bus activity has dropped to almost zero for them" (p. 36, 8-13).
See also Shai's testimony: "In all these meetings we were told that Danan was no longer interested in dealing with buses, the bus incident was told to us in the simplest way. We're getting off the bus issue, it's not economical for us, we don't get along with it. [...] They said it clearly, unequivocally, unequivocally . in each of these meetings" (p. 55, 20-24).
- The testimony regarding Danan's lack of desire to operate in the bus sector, at least in July 2017, is consistent with the fact that in a letter from her counsel from July 2017 (above), she demanded Danan Lehavot took operative action to regulate the continuation of activity in the field of hoods and did not raise A similar demand for the bus sector.
- Danan's position regarding the lack of economicality of activity in this field is supported by testimonies heard by eyewitnesses to Lehavot (for example: pp. 47, 27, p. 48, 3; p. 72, 9-15).
- The entirety of the evidentiary basis indicates that there was an agreement between the parties to postpone and the gradual commencement of Danan's activity in the field of buses, there was no agreement from the outset by Danan to give up the field completely, the parties were in talks on the matter, limited activity was carried out by Danan in the field, and at a certain point (in July 2017 at the latest) Danan declared that as far as she was concerned, this was a loss-making field and that she was not interested in it.
Coercion?
- In the summaries of the reply, Danan argues that the additional consents were given under a "real threat" and that there were elements of economic coercion and therefore their validity cannot be recognized. It was claimed that Danan was "distinctly" the weak side, while Lehavot, which was the strong side, "did as it pleased, taking advantage of its position both as a party to the contract and as a kind of monopoly in the market of hoods and buses!" (Paragraph 4 of the summaries of the reply).
- The term economic coercion is not mentioned in previous and other pleadings by Danan.
In the context of the bus sector, Danan argued that in light of the investments that had already been made by her, she had no choice but to "swallow the bitter pill" (paragraph 16 of the statement of claim), but no argument of coercion was raised, and there is a gap between the matters. There was also no reference to this in the legal chapter that referred to a variety of sections of the law. In the statement of defense, all that was found was the use of the root of K.P.H. in response to the arguments that dealt with the exclusion of distributors (paragraphs 30-31 of the counterstatement).
- In my opinion, it is doubtful whether in such a state of affairs it is possible to raise a claim of economic coercion at the stage of responsa summaries (and even then without a real discussion of it). This is not a trivial claim. Compare: Provisions 78 and 89 of the Civil Procedure Regulations, 5744-1984, which applied at the time of filing pleadings (and see also Section 3(b) to the Civil Procedure Regulations, 5779-2018).
- In any event, there is a difficulty in the argument on its merits as well. Coercion is a defect in the amputation that is practiced Article 17 of the Contracts (General Part) Law, 5733-1973 (The Contracts Law), which states that "a person who entered into a contract due to coercion imposed upon him by the other party or another on his behalf, by force or threat, is entitled to cancel the contract" and that "a good faith warning of the exercise of a right does not constitute a threat for the purposes of this section".
The burden of proving the existence of coercion lies with the person who claims it. "The usual case that establishes a cause of coercion is a case in which it has been proven that an illegal means of coercion were used which caused a person to enter into a contract [...] However, the question of whether, in the circumstances of the specific case, improper pressure was exerted on a person amounting to coercion, depends, of course, on the totality of the circumstances that characterize the case" (Civil Appeal 731/17 Jerusalem Mirrors in Tax Appeal v. Jerusalem Municipality (July 8, 2021) (Jerusalem Mirrors case), para. 24).
- In principle, it is possible to recognize economic pressures as coercion according to Article 17 to the Contracts Law, but not every economic pressure establishes a claim of coercion; The court must examine the totality of the circumstances, including, inter alia, the nature and intensity of the coercion and whether the alleged pressure was social-economic wrongdoing; As a rule, the existence of the possibility of turning to the courts for relief negates coercion (Civil Appeal 719/20 Salim Laham Development & Construction in a Tax Appeal vs. Shikun & Binui - Solel Boneh Infrastructures in a Tax Appeal (20.10.2021) (עניין Salim Laham Entrepreneurship), section 10; Interest Sights of Jerusalem, section 25).
- The circumstances that have been proven within the framework of this case are far from substantiating a claim of coercion, nor are these things done "under time pressure of minutes and hours" (Civil Appeal 974/13 Ramat Nili in Tax Appeal v. Zichron Yaakov Local Council (April 2, 2015), para. 9). Danan made her economic or other considerations along the way and with regard to each and every step, and conducted herself as she saw fit.
- Furthermore, and in any event, in the event of coercion, the forced party must notify the forced party of the termination of the engagement within a reasonable time (Section 20 to the Contracts Law). After a reasonable period of time has passed since the cessation of the coercion, it is presumed that even if there was a defect in the conclusion of the contract, the injured party accepted it; Failure to give such notice is sufficient to reject a claim of economic coercion (Matter Sights of Jerusalem, section 27; Interest Salim Laham Entrepreneurship, ibid.; Daniel Friedman and Nili Cohen Contracts, pp. 530-535, Volume 2, 2nd edition (2020)). There is no argument and certainly evidence for such a statement on behalf of Danan.
In the letters of Danan's counsel, after a dispute had already arisen and even after Lehavot announced the termination of the engagement, there is no mention of a claim of coercion, and certainly no notice was given of the termination of one engagement or another. On the contrary, Danan's arguments were breaches of an agreement. After arguments and evidence were presented to Danan regarding the additional agreements, the latter tried to disavow them.
- In support of the claim of coercion, Danan's responsa quotes from statements made in the owner's main interrogation, Ronen: "I felt that the blood was coming out of my whole body, and that like a little child, I started, I started, I am not a weak person and it was like it was a very, very big crisis, to the point that I cried like a baby. It was a shock, it didn't make sense, that's how I reacted." (p. 222 s. 12-14).
This statement by the witness was a response (to the question of his own counsel) regarding his response to the notice of immediate cancellation given in September 2017 (pp. 222, paras. 5-14). This is not a description of the situation at the time of the engagement or the dates and times of the additional agreements or any of them. Nor is this the date on which Lehavot announced, about two months earlier, that the agreement would be finalized. Such a statement does not establish coercion regarding the additional agreements or at all.
- More than necessary will be forested, that the claim that the cancellation notice from September 2017 was a "market" as described, is of course inconsistent with the fact that about two months earlier, in July, notice of the termination of the agreement had already been given. When the matter was presented to the witness, the response given - in which the notice of termination of the agreement was omitted from his memory - was far from convincing (pp. 234, 1-27). Moreover, it is clear from the testimonies that even the announcement from July regarding the termination of the agreement with 180 days' notice was not unexpected. Two days earlier, Danan herself had sent a letter of warning to the flames, and Ronen testified that this was done after it was understood that "something, some bad scenario, was happening in the flames, during this period that we issued the letter" (pp. 211, paras. 17-18), "a letter came out that preceded the "the, the remedy for the blow that I know is going to come" (pp. 220, paras. 27-28).
- To this, it may be added that in general, this is a testimony that must be examined very carefully, both because of its inherent characteristics and because of its individual characteristics. On the structural level, this is the testimony of someone who has a clear personal interest in the proceeding, a party in fact. On the individual level, I will note with caution that the testimony was characterized, among other things, by theatricality and exaggeration that did not benefit her and the weight that is sought to be attributed to her (see, for example, pp. 208, 19-23, pp. 210, 23, 212, 11, 212, 14-15; the words were accompanied by body language, etc., which are naturally not expressed in the Scriptures).
Termination of the Agreement