The witness, Mr. Zehavi: I apologized and the suspension was as if there had never been.
Adv. Abramov: Thank you
The witness, Mr. Zehavi: To teach you that as far as I'm concerned, when I have to apologize, I apologize."
- However, the case before us is not a case in which there is an agreement, but rather a case in which there is no agreement, and the question is whether the defendant could have suspended Zahavi for a long time until he complies with its demands. In these circumstances, past experience does not indicate an answer to this question as the defendant claims. Therefore, I will examine the defendant's second argument and accordingly constitutes a suspension in this case a less severe sanction than a revocation. Regarding this, Adv. Sommer testified in lines 32-35 on page 10 that:
"The witness, Adv. Sommer: I explained to a person who fundamentally violated the agreement in such a way that according to what is stated in the agreement and according to the laws of contracts, it is permissible to cancel the agreement. If it is permissible to cancel the agreement a moment before, it is a very drastic step. Just before you cancel, you can stop for a moment. Take a break. That's what I think is right."
Even the defendant's argument that this is a less severe sanction - I do not find it acceptable, on the contrary, as will be detailed below, I am of the opinion that this is a harsher sanction - both in light of the provisions of the agreement that prohibit competition for a period of time counting from the date of the termination of the agreement, and since during the period of suspension the defendant did not pay Zahavi his salary. Moreover, and more than necessary, as will be detailed below, I am of the opinion that it is clear from the testimonies that the choice of this option of suspension and not the nullity of the contract was made out of the defendant's interests and not necessarily out of a desire to protect or protect Zahavi, by imposing a less severe sanction.
- Thus and first, in the framework of clause 5.2 of the agreement between the parties from 2007 (which was quoted in its entirety in paragraph 2 of the judgment), it was expressly determined that the plaintiffs undertook that during the period of the agreement and for a period of 6 months thereafter, they would not take any part in a radio program in a format similar or identical to that broadcast in accordance with the agreement - i.e., they would not compete with the defendant. This section also stipulates that for the period of non-competition, the defendant will pay the plaintiffs the contractual consideration. Moreover, at the end of this section, it was determined that the defendant alone will have the option to shorten the non-competition period, and to the extent that it announces the shortening of the period, it will not bear the payment of the consideration or will be liable to pay the consideration only for the shortened period.
From the aforesaid, it is clear that the plaintiffs have a duty not to compete with the defendant, in addition to the fact that this duty continues to apply for a period of six months from the date of the termination of the agreement, and moreover, that the plaintiffs themselves cannot shorten the period of non-competition, but that this right is in the hands of the defendant. In these circumstances, when the defendant chose to suspend Zahavi and not to announce the cancellation of the agreement, the non-compete clause applies on the face of it due to the continuation of the agreement, andat the same time, since the agreement has not been terminated, the six-month period that begins after the end of the agreement does not begin to count.