Separately from the contractual issues, the plaintiff's claims regarding the violation of his moral right will also be examined at the end, as well as his claims that the defendant libelized him.
Once we have a road map, we will start by walking according to it, step by step.
Interpretation of the agreement between the parties;
- As stated, the beginning of our journey in interpreting the relevant clauses in the framework of the engagement between the parties. With regard to this, I find it necessary to make a preliminary note - two detailed agreements were entered into between the parties. One in 1997 and the other in 2007. In both agreements, clauses 2.6 and 2.7 (of the 2007 agreement( were drafted in the same manner. At the same time, on the issues of consideration, the prohibition of competition stipulation and the stipulations relating to the cancellation of the agreement, there are differences in the wording of the agreements (which were reflected above in paragraph 2 of the judgment). Following the signing of the agreements, as aforesaid, after the signing of the agreement in 2007, the validity of this agreement was extended several times (as detailed in section 3 above). In all cases in which the validity of the agreement was extended, it was explicitly determined that the extended agreement was the one from 2007. In these circumstances, my approach is a starting point for the discussion that the provisions that are valid with respect to the parties' engagement are those set out in the 2007 agreement. This is in circumstances in which this agreement was last extended until March 31, 2019, but it is the last one that was in effect, and therefore, in accordance with the law, it is the one that becomes an agreement without a fixed period that applies to the relationship of the parties (Civil Appeal 1628/13 Company Block 184 Block 6217 Ltd. Ilana Lilian Levy , at paragraph 39 (August 19, 2014( (hereinafter: "the Partition Company Matter"). For the sake of completeness, I will note in this context that the parties were inconsistent with their references to the relevant clauses of the agreements, when in some cases they referred to the clauses of the agreement from 1997 and in some cases to the clauses of the agreement from 2007. As I have already pointed out, with regard to the clauses relating to compliance with regulatory rules (clause 2.4 of the 1997 agreement and clause 2.6 of the 2007 agreement( and with regard to the clause relating to legal representation (clause 2.5 of the 1997 agreement and clause 2.7 of the 2007 agreement( - the wording of the clauses is identical in the two agreements and, therefore, in the context of these, the question of which of the agreements the parties referred to is of no importance. At the same time, as stated, the situation is different with regard to the clauses in which there is a difference in wording, as to which - I am of the opinion, as stated, that the relevant agreement is the agreement from 2007 and the meanings deriving from this will be detailed below.
- Since the aforesaid has been clarified, it is possible to turn to the examination of the matters on their merits, and to this I will preface a brief normative review with regard to the issue of contract interpretation. The issue of contract interpretation and the way in which contracts should be interpreted has occupied and continues to occupy case law and the legislature, and over the years there have been developments in its context. As regards this, as a preliminary summary of a brief review below, I will note that over the years, there has been a kind of pendulum swing on the question of who will be given priority in the interpretation of contracts - whether the language of the contract or the circumstances of its conclusion have taken place. A central milestone in this regard is found in other municipal applications 4628/93 State of Israel v. Apropim Housing and Development Ltd. IsrSC 49(2( 265 (hereinafter: "the Apropim case"). In the same matter, the pendulum swung in the direction of the external circumstances and it was determined in summary that in accordance with the provisions of section 25(a( of the Contracts Law, the main criterion for the interpretation of a contract is the intentions of the parties to the contract, which is: "the (subjective, external( objectives, and interests that the parties sought (jointly( to realize through the contract. This intention can be implied from the contract, and it can be implied by the circumstances." (ibid. in paragraph 16 of the judgment of Deputy President Barak (as he was then called). In other words, it was held that a contract should be interpreted first and foremost according to its subjective purpose - according to the joint intention of the parties to the contract, as this arises from its wording and the circumstances of its conclusion, which must be examined jointly and not separately. The Apropim rule further held that insofar as it is not possible to determine the subjective purpose of the contract by tracing the intention of the parties, the court must interpret the agreement according to its objective purpose, i.e., in a manner that combines the language of the contract with "the purposes, interests and purposes that the type or type of contract that the contract is intended to fulfill. The objective purpose is deduced from "the nature and essence of the transaction that was entered into between the parties..." ( in paragraph 18). Finally, it was held that insofar as after examining the language of the contract and the external circumstances, there is a clash between the language and the circumstances, then the circumstances have the upper hand.
- The Apropim rule was criticized in case law and even led to the first amendment to section 25(a( of the Contracts (General Part( Law, 5733-1973 (hereinafter: "the Contracts Law"( and the enactment of Amendment No. 2 to the Contracts (General Part( Law, 5733-1973. This amendment to the Contracts Law came into effect in 2011, and therefore, I will note at this time, that its provisions do not apply to the case at hand, but rather that the rule as determined in the Apropim case and its developments continue to apply to this case (see Civil Appeal 7649/18 Bibi Roads Dirt and Development Ltd. Israel Railways Ltd. (20/11/19( (hereinafter: "the Bibi Roads case"), in paragraph 11 of the judgment of the Honorable Justice Stein; Civil Appeal 3375/06 Camtec Systems Ltd. v. State of Israel, paragraph 10 of the judgment of the Honorable Justice (as he was then called( Fogelman (March 22, 2011(; Civil Appeal 1062/09 Israel Discount Bank Ltd. v. Biner, paragraph 12 of the judgment of Judge (as then described( Naor (March 23, 2012(; Civil Appeal 3894/11 Delek - Israel Fuel Company Ltd. v. Nir Ben Shalom, 544(2), paragraph 6 of the judgment of Judge Jubran (June 6, 2013( (hereinafter: "Delek Matter"). At the same time, for the sake of the completeness of the review, I will note that after the amendment of section 25, this section stipulated that:
"A contract shall be interpreted according to the intentions of the parties, as it is implied in the contract and the circumstances of the matter, but if the intentions of the parties are expressly implied by the language of the contract, the contract shall be interpreted in accordance with its language."
- After the amendment of section 25(a), when the Supreme Court was once again required to address the issue of contract interpretation and to reconcile the updated wording of section 25 with the rulings in the Apropim case, the Honorable Justice Sohlberg in the Delek case, in paragraph 19, expressed his opinion as to the manner in which section 25 of the Contracts Law will be interpreted henceforth as follows:
"The pendulum moves from the emphasis on the tongue, to the circumstances; Later, she bound them together; And now the weight of the tongue increases a little again. The general rule is that for the purpose of interpreting contracts, "hold on to this (the language( and also from that (the circumstances of the matter), do not rest your hand." However, in my opinion, the legislative history, the language of the aforementioned section 25(a( of the Contracts Law, and proper legal policy, also necessitate this: the clearer the contract is, according to its language, the less weight the external circumstances become, to the extent that, sometimes, rarely, the language will acquire exclusive status."
- The Supreme Court has repeatedly addressed the issue of contract interpretation in the Bibi Roads case. I will note that in the same matter - as in our case, we discussed an agreement that was signed prior to the date of the application of the Second Amendment to the Contracts Law, and therefore - as in our case - the starting point for the discussion was the application of the Apropim rule as to its interpretation. In the same matter, the Supreme Court clarified the relevant indications for the purpose of choosing the manner in which contracts are interpreted according to different types. This is because the judges of the panel agreed, as a starting point for the need to determine the indications, that: "Not all contracts are born equal" (paragraph 12 of the judgment of the Honorable Justice Stein, which was also joined by the Honorable Justice Vogelman, and paragraph 1 of the judgment of the Honorable Justice Grosskopf).
Taking into account the aforementioned starting point, the Honorable Justice Stein was of the opinion that different interpretive approaches should be adopted with respect to different contracts, taking into account the level of detail of the obligations and rights within them, and distinguishing between an open contract (where the emphasis will be on the circumstances( and a closed contract (in which the language will be given priority). The Honorable Justice Grosskopf, for his part, was of the opinion that the central distinction relevant to the interpretation of agreements is related to the nature of the contractors and the nature of the agreement. With regard to this, with regard to the nature of the contractors in the contract, it was determined that a distinction must be made between a dealer who is a sophisticated contractor, conducts business and is well represented from a legal point of view at the time of the engagement, and a private person who is a person from the locality, who is usually not well represented from a legal point of view. In addition, and with regard to the nature of the agreement, it was determined that it was necessary to examine which of the three categories of contractual engagements the relevant contract belongs to - whether it is a business contract that is a contract to which all parties are engaged; a private contract to which all parties are private persons; Or a consumer contract in which dealers stand on one side and private people on the other side. According to the Honorable Justice Grosskopf, the laws of interpretation that must be applied in relation to each type of contract are not identical, since in the formulation of the laws of interpretation, consideration must be given to the different purposes that we wish to promote with respect to each contract. In this regard, the Honorable Justice Grosskopf distinguished between three different purposes: "One purpose is retrospective, and its concern is the realization of the will of the parties at the time of the conclusion of the contract (hereinafter: "the fulfillment of the will of the parties"(; The second purpose is forward-looking, and concerns the provision of an interpretation that will respect the values of the legal system, such as the just and proper distribution of contractual considerations (hereinafter: "respecting the values of the system"(; the third purpose is forward-looking, and it seeks to perfect the legal basis for the creation of future engagements, by creating an effective set of legal rules that assist the parties to make use of the contractual instrument (hereinafter: "perfecting the contractual engagement").