Judge Y. Cohen: 1. I agree with what was said in the judgment of my esteemed colleague Justice Ben Porat, except for one matter, which is Ben Shachar's knowledge of the existence of a contract between Knopf and a Hassid. On this matter, I am compelled to disagree with the opinion of Justice Ben Porat. My opinion is that such knowledge has not been proven, and therefore the condition in section 62(a) ofthe Torts Ordinance, according to which a breach of contract constitutes a tort, has not been fulfilled, if the defendant "knowingly" causes a person to breach a contract.
- The learned president on duty said in his judgment that "there is not the slightest testimony that Ben Shahar knew about the fulfillment of the lease contract, P/2, between Hassid and Knoopf" and that "Ben Shahar knew at most that Hassid was interested
Hire the rented one." These are factual findings that were sufficiently grounded in the evidence that existed before the District Court. Although Ben Shahar knew from Attorney Eiger's letter (P/6) that Konpf wanted to rent the place to another and that Ben Shahar even asked the witness Levin to prepare a document in which permission would be given by a hasid to continue holding it leased by Ben Shahar, I do not believe that the two aforementioned facts are sufficient as evidence of Ben Shahar's knowledge of the existence of the contract. In my opinion, the learned president was right in his assertion that Ben Shachar knew at most that a Chassid was interested in renting the leased property and that Knopf was in his opinion to rent the leased property. The preparation of a document that should have been signed by a Chassid does not unequivocally indicate that Ben Shahar knew that a contract between Knopf and a Chassid had already been made, but rather it is consistent with Ben Shachar's aspiration to obtain in advance approval from a Chassid to continue to hold the leased property, in the event that a Chassid entered into a contract with Knopf. When Ben-Shahar met with Knopf and paid him the rent on May 2, 1971, up to three months in advance, Knopf did not tell him that he had signed a contract with a Hassid. Knopf also received from Ben Shahar in the first half of May 1971 notes for rent until the end of another year of rent, without revealing to Ben Shahar the fact of the existence of the lease with Hassid. Therefore, according to the evidence in the District Court, it cannot be determined that Ben Shahar knew, at the time he entered into an agreement with Knopf for the extension of the lease, that there was a lease contract between Knopf and Hassid and that the engagement between Knopf and Ben Shahar constituted a breach of this contract.
- In the pleadings of the parties' counsel, I did not find any reference to the question of whether the knowledge required under the aforementioned section 62(a) must be actual knowledge, or whether "constructive" knowledge of the existence of the contract is also sufficient. Tedeschi, in his article "The Debtor's Torts Claim against a Third Person" (Studies in Our Private Law, p. 159), relying on an incidental statement in the judgment in the case, British Industrial Plastics, Ltd., and others v. Ferguson and others (1940) 1 All E.R. 479, 483. expresses the opinion "that if a suitable case had come to the court, the judges would not have discriminated between the knowledge of the non-settlement of the new contract with the previous contract, which already binds the other party, and the 'constructive' knowledge (by virtue of the law): that is, the suspicion of voluntary deafness to anything that may make it certain." The learned author also says that "it is not impossible that in the course of time the same criterion will be applied even to a third person who makes a contract without investigating whether the second contractor has not already entered into another, contradictory contract with the other - when the conditions may give rise to such suspicion." In the opinion of the learned author, the use of the word "knowingly" in section 62(a) ofthe Torts Ordinance does not block the way to constructive knowledge (ibid., at p. 160).
In the article on tort liability for a strike action (14 Is. L.R. 31, 47) Dr. Radai expresses the opinion that it is sufficient to have constructive knowledge both of the fact of the breach of the contract and of the existence of that contract. In the rulings of the courts in England, I have not found a clear decision on this question. It was ruled there that a person is not obligated to initiate an investigation into the existence of contracts between others. (William Leitch & Co. v. Leydon (1931) A.C. 90 As well as the words of Justice Jenkins in the judgment in the matter of Thomason v. Deakin (1952) Ch. 646, 698 The Learned Author Fleming