12-34-56-78 Chekhov v. State of Israel, P.D. 51 (2)
- In the hearing, the defendants' representative further argued that in any case there are "acceptable" conditions (such as payment for the installation, or that each sale is for a period not longer than one year), and that the line relating to the Charlton Channel's broadcasts should be understood ("Price includes full Charlton to go when the first two months Charlton is free") as one that grants a benefit of one month (as agreed, instead of two months), but will include a full charge thereafter (the plaintiff understands this differently, because the agreed monthly price includes the channel's broadcasts, while the large reduction in the first month reflects that the channel is free for that month).
- On the main question, the validity of the agreements reached by text messages, compared to the validity of the agreements sent by email, I cannot accept the defendant's position. This issue has already been discussed at length in the judgment to which the plaintiff referred, Civil Case in Fast Trial (Tel Aviv) 60456-12-17, 19528-06-18 Yahya N. Hot et al.by the Honorable Senior Registrar (as described at the time) V. Schwartz (see paragraph 10 of her judgment), and the summary of her words is in the following excerpt:
"Hot Communications is not entitled to exempt itself from the terms of the contract entered into between the parties ina criminal appeal by sending a summary of the conversation that does not correspond at all to the terms of the engagement as determined between the parties in the telephone conversation. Hot Communications is not permitted to rely on the sending of a document through any means of communication (email or facsimile) and to rely on its terms as agreed upon and binding only because the plaintiff did not comment on the discrepancies.
The parties negotiated and concluded the terms of the engagement ina criminal appeal, and this is a binding agreement for all intents and purposes. Hot Communications is not entitled to withdraw from these terms by sending a document containing new terms as it desires."
- I have no choice but to join her words in full. The case there is remarkably similar to the case before us (except that the negotiations were by phone, not by text messages), and the law is the same. What binds the parties is the content of the text messages exchanged between the plaintiff and Coral, as stated above, and not the content of the documents that the defendants sent to the plaintiff.
- It is not superfluous to note the plaintiff's comment that in any case it was not possible to see anything binding in those documents, since according to what appears on them, they were sent to an email address other than the plaintiff's address (the last name included in the address is sada, while the spelling used by the plaintiff in his email address is sadeh. Therefore, according to him, he did not receive the e-mails at all. It should be noted that the defendants claim that no error message was received for this shipment, which means that it was an active mailbox. This, of course, does not help, since there may be another person, with a similar name to the plaintiff, who uses the said email box, and who did not bother to respond to the defendants and point them out of their mistake. All of the above is in any case more than necessary, since even the documents would have been sent to the correct email address - They did not constitute a change in the agreed terms, in light of what was quoted above from the judgment in the matter Yahya.
Copied from Nevo11. What are the consequences, then? There is no dispute that the plaintiff was overcharged (on the basis of the agreements in the text messages), and he is entitled to restitution. The installation costs charged to him, the costs of thevod, etc. - All of these are overcharges.
- In the Charlton case, I am of the opinion that the defendants' interpretation of the sentence "Charlton full price includes to go When the first two months Charlton is free" is a minefield. Their position that after the first month (there is no dispute that the two months have become one month) it is possible to charge for the service beyond the price of the package, contradicts the statement "price including Charlton... when [the first month] Charlton is free." Therefore, the charge for Charlton is also an overcharge.
- There are other small billing details, which do not need to be focused on one by one, but as an example we will note the humor channel, which is not included in the package, but is included in the charges, and rightly so, in principle; however, the plaintiff claims that he did not use this channel. I cannot accept his position, since he is obviously not the only one in the household who uses the defendants' services, and his testimony is not sufficient in this context.
- Under careful accounting of each and every item, I will assume that most of the amount claimed by the plaintiff (ILS 467) is indeed an overcharge, and I will include this estimated amount within the total amount that will be determined below.
- The plaintiff is demanding two types of compensation: compensation for general damages (mental anguish, waste of time), and statutory damages without proof of damage. We deal with compensation according to Section 31A(a) of the law (and specifically, the Section 31A(a)(2B1) which deals with overcharges), which allows the defendants to be charged ILS 10,000 as exemplary damages, without proof of damage. These are damages that are punitive in nature, and are intended to deter dealers, rather than to compensate customers. Therefore, there is nothing wrong with demanding compensation for the general damages, in addition to this requirement.
- The plaintiff set the amount of compensation for the general damages at ILS 4,000, but I am not under the impression that he proved special anguish (and to be precise: mental anguish is not irritation), or that he invested significant time, the value of which must be assessed in money, as if he had led to the loss of income that would have been generated by an alternative use of time. In these circumstances, I have not found that there is room to compensate for this component, except on a fairly symbolic scale, and I set the compensation (while also embodiing the reimbursement component for the over-collection itself, as detailed in section 14 above) at the sum of ILS 1,250.
- The compensation is different, for example. The overcharging occurred (and even the defendants admit to some of it, as stated), and we are dealing with defendants who have already been burned in the boiling water (the judgment in the matter Yahya, for example, or the previous lawsuit filed by the plaintiff against them, which ended in a settlement, as detailed in the pleadings), but not only did they not be careful in the cold, but they continued to wade in the boiling water. Such conduct must be addressed.
- The plaintiff placed his claim in the sum of ILS 7,500, and I do not believe that he exaggerated it. I therefore adopt his claim in this component in full.
- In summary, I accept the claim in part, and obligate the defendants to pay the plaintiff the sum of ILS 8,750, as well as the costs of the proceeding (including the fee paid and the time invested) In the sum of 750 ILS, and in total: 9,500 ILS. This amount will be paid within 30 days, otherwise it will bear shekel interest from today.
A person who wishes to appeal the judgment is entitled to request leave to appeal from the District Court, within 30 days.