"The determination of the rate of compensation for loss of profits in the future also entails, in addition to the assessment of factual data derived from reality, conjectures and guesses as to 'a reality that did not exist due to the fact that the engagement between the parties was not realized' (Barnea; Civil Appeal 11173/02 Eloniel in Tax Appeal v. Ze'ev Bar Building and Development 1994 in Tax Appeal ([published in Nevo], April 3, 2006), .....
... The use of raw data together with an estimate according to the best judgment is customary for the purpose of assessing compensation in such circumstances...
... Just as the plaintiff has the burden of proving the existence of damage caused to him, so too he has the duty to prove the factual facts on which the scope of the proper compensation for this damage should be based, and this matter should not be left to the judge's assessment...
... The essence of compensation for the damage caused lies in the loss of profits in the future - a component of damage that is particularly difficult to prove, and is built to a considerable extent on estimates and conjectures. In this matter, it is indeed appropriate to hold on to certain objective data from the present, but the court is given discretion to decide by way of estimation, according to the best of its judgment, which is nourished by life experience, logic and common sense..." (Emphasis added).
- Moreover, it should be remembered that proof that the system would have produced a certain amount of electricity is not enough to award compensation by way of estimate, since even according to the plaintiff's method and in accordance with the agreement, any compensation, construction costs - a considerable sum of ILS 464,000, and maintenance expenses - should be deducted from any compensation, meaning that the plaintiff had to prove that she would indeed succeed in returning her investment and that she would make profits beyond that investment and what their rate was. Similarly, an opinion was not presented that would determine after a few years that the amount of the investment is expected to be returned, which may be profited only afterwards, and only from which the discount rate should be calculated. In this regard, clause 8.3 of the agreement states:
"It is agreed between the parties to this agreement that even before any distribution of profits, all profits received from the system will be used to cover the full costs of setting up the system, if any, including the full financing costs, including total interest rates, commissions, etc. Only after these costs have been paid in full and/or have been returned to the party that will bear them in full, will the payment of such profits begin."