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From the general to the individual
- The plaintiff was entitled to choose between a demand for existential compensation or agreed compensation (section 15 of the Contracts Law (Remedies for Breach of Contract) 5731-1970), but in our case the agreed compensation clause overlaps or is in fact almost identical (if not completely identical) to the agreed compensation. As will be detailed below, when the plaintiff did not meet the burden of proof imposed on her to prove the components of the agreed compensation (or subsistence compensation) - future profit, the claim for these compensation should be dismissed.
- The plaintiff claimed that all the data required for the purpose of calculating the subsistence compensation are objective data based on the agreement between the parties, including a price of 1 kilowatt (ILS 3,800), the amount of kilowatts to be installed (104.5) and the length of the contract life (25 years), as well as the tariff (25 agorot) according to the arrangement, while she claims that the defendant also approved these figures.
- Clause 9.3 of the agreement stipulates that the agreed compensation amount will be the full costs of the installation of the system by the defendant as well as "the full profits of the company from IEC's future receipts throughout the period of use as defined under this agreement". First, I will refer to the conclusion of the agreed compensation clause, since its beginning is irrelevant when there is no dispute that the plaintiff was not required to install the system and did not bear the costs of construction, except for the costs of preparation prior to its establishment, for which I determined, as aforesaid, that the plaintiff was entitled to reliance damages (insofar as she had proved subsistence damages, there was room to award damages for subsistence compensation only).
- The problem is that in the absence of an expert's opinion, and/or accounting data or documents indicating the defendant's actual profit from the system installed by him (in this regard, the plaintiff did not even demand from the defendant data and documents regarding actual outputs and actual profits from the system installed by Ormesh), the plaintiff's demand for subsistence compensation should be rejected since it did not prove their rate as required. Although there was no impediment to doing so. It should be added that this is a commercial company that claims to have been specializing in the field for years, hence it is not clear why the plaintiff chose not to submit an expert opinion on its behalf.
The plaintiff did not prove the main components required for the purpose of proving an expected future profit
- The plaintiff sought to obligate the defendant with subsistence compensation in the amount of ILS 354,937, in accordance with its relative share in the partnership agreement.
- The Difficulties in the Plaintiff's Calculation - In order to prove the components of the expected future profit, the Plaintiff sought to suffice with an affidavit from the Plaintiff's CEO, Mr. Reuveni, who is engaged in the marketing and construction of the solar systems, and according to him, each KW1 produces 1,700 kWh of production per year. According to him, since the size of the system with the defendant was 104.5 KW , in a calendar year the system would have produced 177,650 kWh (the multiplier between 1,700 and 104.5).
The plaintiff further claimed that in accordance with the regulation with the IEC, the tariff from the IEC for each 1 KW was 45 agorot (in this regard he refers to the provisions of the regulation as well as p. 37 of Reuveni's affidavit).