The law of the counterclaim should be dismissed.
- First, since the main claim was rejected and it was determined that the agreement between the parties was lawfully cancelled due to deception, the counterclaim for the cancellation of the agreement by Werber and their subsequent conduct should be rejected, at least for the most part. The counterclaim is based on the assumption that there is a binding contract between the parties and that there is an undertaking by Werber to take part in the venture. However, once it was determined that the agreement was canceled due to deception, it is not possible to claim a breach of the agreement and award compensation for it (see Civil Appeal 5267/03 Faraj-Geshuri v. Meital, 59(5) 337, 356-357 (2005); Civil Appeal 8227/20 Kassirer v. Amsalem, para. 57 (July 12, 2023).
- Second, Froimovich did not prove any of the alleged damages. The damages alleged in the counterclaim assume that had it not been for Werber's conduct, the venture would have "developed and flourished" and are based on calculations detailed in Shmulik's affidavit. These calculations are based on various speculations and assumptions, and no evidentiary basis has been laid to enable the contractor (such as an expert opinion) - even if only in a hurry. This is all the more so when the argument is based on the testimony of Shmulik alone, which is the only testimony of a litigant whose admission there is no special reason for acceptance, and especially in view of the negative impression of his testimony, as noted above in other contexts.
- As for the claim that Yonit marketed the venture's courses independently - in light of the cancellation of the agreement, this is not a breach. In any event, in my opinion, in this context, it is preferable to Froimovich's position that Yonit's testimony explained that the sale of individual courses outside the framework of the venture does not constitute a violation of the prohibition of competition under the founders' agreement, which was intended to prohibit the sale of a concentration of courses at low subscription fees (paragraph 25 of the supplementary affidavit). Support for Yonit's interpretation is found in the agreement with the lecturers, according to which the lecturers are permitted to sell courses to others but not to a similar or competing site (Appendix 11 to the Werber evidence in section 4, p. 296); They are in the conduct of Froimovich, who themselves sold their courses outside the venture (p. 184 of the transcript). There is also a reason in Yonit's explanation that Froimovich encouraged this, and that the sale of a single course at a high price may indicate the attractiveness of the venture. Moreover, no damage or causal connection has been proven in the context either.
- The counter-plaintiffs also petitioned in their summaries (in section 129) for a compensation award without proof of damage under the Prohibition of Defamation Law for a post published by Yonit in which she wrote to the group of lecturers on August 1, 2018, that "there are matters with BizaAcademy, and indeed in reality things are far from those presented. Since we have also been in the dark for some time, I suggest that you direct all questions to the email address of the site..." (Appendix 21 to the Fraimovich evidence).
There is truth to Werber's claim that this is an expansion of the façade. In the statement of claim, the counterclaim is generally alleged to be "cumulative damage to their good name as a result of the above, in the sum of ILS 250,000" (section 50.8 of the claim). There is no demand for compensation without proof of damage, and therefore, in accordance with the case law, Werber's argument should be accepted in their summaries (in section 19.7) that this is an extension of the façade and that it is not possible to award compensation without proof of damage (see, Uri Shenhar Law of Defamation, p. 797 (2024); Civil Appeal (Tel Aviv District) 1564-09 Regev v. Amoudai (February 25, 2010); Civil Appeal (District Judge) 3018-05-15 Lior v. Cellopark Technologies inTax Appeal (November 10, 2015)). I will note, in parentheses, that evidence to prove damage as a result of Yonit's publication was not presented, and in any event, no award of compensation for proven damage was requested in the summaries. It was claimed that damage to reputation was damaged, but the remedy claimed for this in the summaries was compensation without proof of damage and not compensation for proven damage.