After we have heard their honor, we withdraw our appeal, we will withdraw it - while reserving the right to argue the basic transaction in the lower court. Of course, no order for costs.
The Court:
We suggest that the respondent agree to withdraw from the appeal without an order for costs, or leave it to the discretion of the court.
Counsel for the Respondent:
I will argue briefly, if possible.
The respondent underwent a serious upheaval. Since 2015, both checks have been returned to her; she has been limited by repeated check deposits. Many expenses were also paid in the proceeding in the trial court, and also, in fact, the expenses that were awarded in favor of the respondent in the proceeding... In accordance with the judgment of the trial court, they have not yet been paid. So also absorb the fees of a lawyer, with a lot... As a result of the breach itself, and the failure to take responsibility for what caused the negligent conduct, the respondent was harmed.
Judgment
At the end of the hearing, and in view of the difficulties that arose, the appellant was advised to withdraw her appeal. The appellant agreed to do so, while clarifying that it retained its right to argue the basic transaction in the framework of the action it filed with the trial court. The appeal was therefore dismissed.
As for the expenses, the truth must be said that the respondent's conduct is also not free of doubts, and for this reason we do not award expenses in the appeal.
The guarantee that the appellant deposited, on its fruits, is returned to her through her counsel.
- From all of the above, it is clear that the Court of Appeal made it very clear to the plaintiff that not only should the appeal be dismissed, since the alleged debt was not proven (the appellate court did not change this finding), but that given that the plaintiff herself cancelled the transaction, if only for this reason, she is not entitled, not only to payment for the goods, but also not to any remedy that is within the scope of subsistence compensation. Such as the franchise fees and that the plaintiff is entitled, at most, with respect to the goods, to receive them back from the defendant, to the extent that they were delivered to her and/or to leave the goods that remained in her possession.
- The court repeatedly used the word "damage" or "damages" and not for nothing in order to make it clear to the plaintiff that she is entitled to sue on the basis of the cause of action for the damages, but not the subsistence compensation, i.e., not the consideration for the goods (and/or concession fees that constitute subsistence compensation) and as it put it: "If you chose the cancellation alternative, you cannot receive the checks. You can act, claim the damages in the basic transaction" and as I have already quoted above, the check for the large sum of about ILS 1.6 million, according to the judgment in the promissory note, also included the debt of the franchise fees.
- Later in his remarks, the court also noted: "A basic transaction - that's fine. We know that you have filed a lawsuit. And as much as there are other parts you want to claim, you can fix it. Conduct the process in the civil lawsuit. We will not intervene in the judgment."
- It is not for nothing that the court referred to "additional parts" and noted that it was possible in the lawsuit here in respect of the basic transaction to "amend" the claim for the purposes of adding those additional parts.
- It is also clear from this that the court explicitly tells the plaintiff that it cannot claim the contractual consideration for the goods or a concession debt or any other payment that is within the scope of contractual fulfillment, and this is because it canceled the transaction, and cancellation as a rule entails restitution, but instead , it can claim within the framework of the underlying transaction damages caused to her, to the extent that they were caused, as a result of the cancellation of the transaction.
- When the plaintiff, both in filing the promissory note claim and in the head claim for identical damages in the claim here, came out of the starting point (in fact erroneous), that it can ostensibly claim subsistence damages, even though it cancelled the transaction, the appellate court expressly tells the plaintiff that it can petition for the amendment of the claim here, for the purposes of adding a remedy relating to damages for cancellation of the transaction, to the extent that they exist, when it is absolutely clear that the intention is to replace the remedy of the subsistence damages claimed in the claim here. For them, the story is over.
- Needless to say, against the background of the above and the clear words of the appellate court, the fact that counsel for the plaintiff stated for the record, after the aforementioned words of the court, that the plaintiff retains her right to claim the basic transaction, can reserve to the plaintiff only the right to claim the basic transaction with respect to damages caused to the plaintiff and not with respect to contractual consideration/subsistence compensation.
- The fact that the plaintiffs chose to define the head of damage of ILS 1,200,000 as an "alternative head of damage to the promissory note" is also what gives them that they themselves understood that they could not litigate twice for the same amount.
- It is plain, therefore, that the plaintiff cannot re-litigate here on the issue of subsistence compensation.
- The plaintiff, by the way, did not ask after the judgment in the appeal to amend the claim for the purposes of adding some additional head of damage in lieu of the subsistence damages, and thus it remains with the original heads of damages, which indeed include various damages which, according to the plaintiffs, they ran out due to the defendants' conduct vis-à-vis them.
- In conclusion, things are clear. The act of the court applies in relation to the debt of the goods, the debt of the franchise fees and any other compensation that is within the scope of subsistence compensation. Therefore, the head of the alternative damages claimed in the sum of ILS 1,200,000 for subsistence damages is hereby dismissed.
ILS 400,000 for four cases of defamatory publications
- The next head of the damage claimed concerned defamation, which the defendants allegedly inflicted on the plaintiffs on a number of occasions.
- The definition of defamation under the law is "something whose publication is liable to (1) humiliate a person in the eyes of the public or make him the target of hatred, contempt or ridicule on the part of the public; (2) to degrade a person because of acts, behavior, or qualities attributed to him; (3) To harm a person in his office, whether a public office or any other position, in his business, occupation or profession;(4) To degrade a person because of his race, origin, religion, place of residence, age, sex, sexual orientation or disability.
- The defendants' main defense argument is the claim of truth in publication under section 14 of the Prohibition of Defamation Law, 5725-1965, which states that: "In a criminal or civil trial due to defamation, it will be a good defense that what was published was true and that the publication was of public interest; This defense will not be denied merely because the veracity of an ancillary detail that does not cause any real harm has not been proven."
- According to this defense, the defendants therefore had to prove both the truth of the publications and that there was a "public interest" in their publication.
- "Public interest" in the publication means that there was justification for publishing the matter to the audience before which the matter was published. In this regard, I will already say in a sweeping manner with regard to all the publications that are the subject of the lawsuit against which the plaintiffs complain that they constituted defamation, and in respect of which the defendants claim in their defense the defense of truth in the publication, that the defendants meet the "public interest" component of the defense, when it was an act that informed entities or persons who worked with the plaintiffs about their poor conduct.
- Thus, there was justification for informing the other plaintiffs' clients about the plaintiffs' conduct with the defendants, which clearly had an impact on the plaintiffs' relations with other customers as well. Thus, it is also clear that there was justification for informing the clearing company, and in particular that it deducted the defendants' checks. Thus, it is also clear that there was justification for the defendant to inform the manufacturer that its products were marketed by the plaintiffs to the defendants, and so there was also justification for informing the plaintiff's employees of the dispute that arose, which also extended to the plaintiffs' relations with the plaintiff's other customers and even severely harmed the plaintiff to the point of "crushing" her financially, as Hoodis himself testified, as will be further detailed below.
- Therefore, there was justification for the publication and see in this regard Shenhar's book "Defamation," at p. 227, where he says the following in this context: "The more the details touch and influence other people, the less the right to prevent publication. This right is particularly small, when the acts in question include harm to others."
- Now I will examine each and every case and examine whether it is defamation and if so, whether the defendants have proven that it is a matter of true publications.
The first case - things that the defendant published on WhatsApp of the plaintiff's customers
- The first case concerned what the defendant wrote about the plaintiffs in the WhatsApp group of the plaintiff's clients, which, according to the plaintiffs, was established following the defendant's solicitations in this matter, and whose name is "Nirolin Fraud and Fraud". The plaintiffs claim that the defendant coaxed the plaintiff's customers to maintain the aforementioned WhatsApp group and defamed the plaintiffs in this group.
- The following are the words written by the defendant in the WhatsApp group, which are mentioned in paragraph 88 of the lawsuit, and for which the plaintiffs petition to obligate the defendant to statutory compensation without proof of damage, in the sum of ILS 100,000 for defamation (spelling errors are in the original):
"Tradable workers are afraid of them because they still deserve to be paid, but I'm sorry to disappoint you, they spread their legs and didn't pay you pension money, check with an insurance agent and also a supplier of last month's pension."