In addition, in the percentages reached by Mr. Zaruk, one can even find a certain decline between the first and second agreements. While in accordance with the first agreement, Mr. Zaruk was entitled to 20% of the profits (the "consideration" clause on the first page of the agreement), in the second agreement it was determined that he would be entitled to 17.5%-20% of the profits (paragraph 1 of the agreement). There is no extra value here.
In any event, it was only in his cross-examination that Mr. Goldian claimed for the first time, in response to explicit questions he was asked on the matter, that the consideration forthe agreement not to compete was the advances (p. 443, Q. 16-14). This is a forbidden change of front, and it is sufficient to reject the claim. It is also unreliable, since the first agreement, which did not include a non-compete clause, included advances. These advances were paid not as compensation for non-competition, but in view of the fact that payments from the authorities might have been delayed, and an interim payment was required for the work that Mr. Zaruk had invested in the matter.
No special training has been established that can justify a non-compete restriction
- In accordance with the ruling, the state of affairs in whichNThe contractor has special training that can justify the establishment of a non-compete clause (Matter Ben Yishai, Bp. 954). Indeed, a bonus company claimed in its summaries (in the main claim at paragraphs 90, 95-96 and 108( that the non-compete clause is extremely reasonable and even binding on reality, inter alia also because of the special and comprehensive training it invested in Mr. Zaruk.
However, it is clear that training and even significant training are not sufficient to justify the existence of a non-compete clause. After all, most of the jobs in the economy require training, and hence this is not sufficient to justify restrictions on freedom of occupation. Special training should be on the agenda.
- In our case, the training argument is made in general. The defendants did not provide exhaustive data regarding the scope of the training, its costs, the manpower it justified, etc.. More than that; As we saw in the first agreement, there was no non-competition clause. The period of the first agreement lasted one year and eight and a half months (between September 15, 2009 and January 1, 2008), and it seems that in any case the training ended even before the stipulation came into existence.
According to the testimony of Mr. Tutian, a case analyst who testified on behalf of the Bonus Company, the training took about a month or two (p. 194, Q. 3-5). The testimony of Adv. Golan, Mr. Zaruk's replacement at Bonus Company, also indicates that the training he received, beyond the legal knowledge he already had as a lawyer, took about two or three months (p. 234, Q. 18).