Loss of profits - the bus sector
- The amount required as loss of profits is based on a calculation in which a profit rate is derived from The amount of income that was allegedly withheld from Danan in the field of buses: Installations, Start-up[10], granting annual approvals and repairing ongoing malfunctions.
Avoided revenue
- The calculation of the statement of claim is based on the number of buses in Israel according to the Central Bureau of Statistics. An assessment was carried out on some of the buses that required the installation of a fire extinguishing system, and of these, some required a new installation and some were required only to start an existing system. With regard to the installation and starting, only new buses that entered Israel in 2017 - the half of 2018 (and not existing buses from 2012 that are required to be installed by law). Regarding the granting of annual approvals for installed systems and the repair of ongoing malfunctions, the calculation in question in the statement of claim referred to the CBS data regarding the number of buses in the years 2012-2017 (on the basis that every bus that enters Israel as of 2012 is obligated to install a fire extinguishing system and annual licensing for the system), and a reduction in the estimated number of city buses that are not required to be installed.
Installations, starting, approvals and repairs to malfunctions carried out by Danan were reduced.
The actions received were multiplied by the list prices between the parties for each action. The amount received is considered to be income that was withheld from it.
- At the stage of proofs and summaries, the basis of the calculations in question in the field of buses changed, so that instead of the quantities of buses according to the Central Bureau of Statistics, the calculations are based on Lehavot's data regarding the number of systems Shalhavot sold in the local market and the doubling of the list prices.
- Taking into account the findings regarding the dates of the start of the exclusivity and the termination of the agreement, there is no relevance to the period prior to January 2017 or after January 2018 (January 16, 2018). The relevant period is Range In between.
What activity can be considered a violation of the law in the field of buses with respect to this period?
- In a previous chapter, it was found that although there was an agreement to postpone and gradually start Danan's activity in the bus sector, there was no agreement by Danan to completely give up the field. When there is no clear evidence as to the nature of the gradual applicability in question, and when the burden is placed on the claimant, I find that with respect to the period beginning in January 2017, we should return to the contractual point of departure regarding the bus sector.
It was also found above that Danan believed that the bus sector was a loss for her and that she was not interested in it. Danan made the same statement about Flames. However, as Adi Lehavot noted, there was talk of a need to change the agreement in this regard. As long as no change or amendment has been made (and has not been made, pp. 29, 16-17, p. 36, 16-20), and when I am not convinced that there was a joint agreement with immediate effect from a clear date on which it can be voted on, the buses sector should also be included in the calculation.
- On the other hand, I did not find it acceptable to accept Danan's position that the calculation should be based on the total number of fire extinguishing systems manufactured by flames. Danan's calculations are based on the assumption that for every fire extinguishing system manufactured by Lehavot, Danan, and Danan alone, was entitled to perform installations and service, and this is not only in installations and service provided in this field by Lehavot or a contractor on its behalf, But also those that have been carried out since time immemorial and not by flames. Such a reading of the agreement, whether it is possible on the literal level or not (and no real argument has been made on the matter), is inconsistent with the evidence and is not reasonable.
- The idea in the engagement from the outset was to transfer the handling of the service and the installations from Lehavot to Danan in a way that would enable Lehavot to focus on other channels of action, and in particular on the distribution of its systems abroad (Ronen, p. 202, paras. 17-18, 22-26). Lehavot wants to transfer this area of its activity to Danan; And to be precise: of its activity in the field. Words where Lehavot had previously operated, either by itself or through a service provider on its behalf, were supposed to move to Danan. This is not the kind of thing that Shalhavot itself did not do before and did not do even after the end of the contract with Danan.
For example, both before and after the engagement between Lehavot and Danan, most of the installations of fire extinguishing systems on buses were and are being done by the manufacturer or component of the bus, together with the assembly of the systems on the chassis. In Israel, these companies are "Merkavim" and "HaArgaz". Thus, for example, both before and after the contract between Lehavot and Danan, companies such as Egged or Kavim undergo a "test" of their vehicles in the designated garages, and as part of the series of tests, the fire extinguishing system is also examined, with various entities being certified for this over the years. The bus or shuttle companies do not transport their fleet of vehicles to Lehavot for approval, nor do they necessarily invite an authorized representative of Lehavot for inspection and approval elsewhere. They may do so but are not obligated to do so.
- The significance of Danan's argument is that the engagement included a commitment by Lehavot to lead to a market change in the field of buses in a way that would change the way customers work and oblige them (it is not clear how, especially with regard to systems that have already been installed) not to operate as in the past, but only by means of Lahavot/Danan (in installations, as aforesaid, and in annual approvals - not to operate with licensed garages; p. 51, 10-13), and even not to sell fire extinguishing systems to customers who are interested in them. and perhaps until now they have also purchased systems and operated in a certain way, unless they commit to operate through this (p. 338, s. 26 - p. 339, s. 4).
This is a significant change in the market's conduct and the way in which Lehavot is supposed to make sales, which, if it were on the agenda, would be expected to find explicit expression in the engagement. There is no such thing. In addition, the correspondence submitted to the file does not contain any statement, direct or even implicit, from which it can be understood that the parties intended to change the said market and to transfer to Danan activity that had not previously been carried out by Lehavot, and that this is how the agreement was read[11]. Ronen did not have details about the state of the market on the eve of the agreement, while assuming, rightly, that a company that manufactures buses such as Merkavim had carried out the installations for it (pp. 233, 17-27). Danan's technician testified that the person who installs is the manufacturer of the vehicle (p. 296, 9-17). It is also possible to see the opposite indications, i.e., that the parties did not intend to change this kind of situation; When asked about the number of calls for installations and service provision, Danan's operations manager replied that by the end of the agreement, when there was a gradual decline of about two months, "enough calls? Like you expected to receive? A. Yes, absolutely" (p. 401, paras. 12-13; and see also pp. 32, paras. 18-24). Regarding the regulations, see, for example, p. 388, paras. 15-27.
- It may be added that in any case, no evidence was brought that during the relevant period, Lehavot was ordained by any party other than the people in question, Perform installations and provide service in its systems in the field of buses. The significance of the arguments in this case accordingly is that Lehavot should have revoked the authority in the past or done similar things that have no basis because they could have been done at all, and certainly because it was agreed that he would do so.
- The relevant activity is the one that includes installation, starting, granting approval and repairing malfunctions carried out by Lehavot during the aforementioned period. With regard to these, and despite its general position that the activity is loss-making, Danan can argue that this is an activity that was supposed to be done by it and not by Lehavot (except where the activity was carried out by Lehavot after Danan was asked to act and saw fit not to do so, see below).
These actions must be multiplied by the contractual price agreed upon between the parties for each action in order to receive the income withheld.