Counsel for the counter-defendants rejected the suggestion of counsel for the counter-plaintiffs, and replied thatthey had chosen a certain legal path, and that this would be addressed at the summary stage. Indeed, he was right. In any event, the counter-plaintiffs did not file a request to add evidence, and therefore the dispute should be decided in accordance with the existing basis.
- Indeed, the burden of proving all the elements of the counterclaim, including the amount of the damage, is duly placed on the counter-plaintiffs, and their financial data were supposed to serve as a basis for this purpose. This was not done. And no satisfactory reason was established as to why the true data were not presented, with reference to the gap between them and the expected forecast of continued activity under the Max chain. Therefore, I found that the counter-plaintiffs did not establish the compensation due to them for the cancellation of the franchise in respect of the branch in Sderot.
Compensation for the cancellation of the Bat Yam branch agreement
- Ostensibly, what was said about the Sderot branch should have been the same with respect to the Bat Yam branch, and not it. There was no contradiction in the claim that the store in Bat Yam was closed (p. 180 Q.16), after the Max Stock Company opened a competing branch in the city (see paragraph 157 for the summaries of the defendants and counter-plaintiffs). In such a state of affairs, it would be very difficult to estimate things in accordance with the map of the actual income and profits of the branch.
It should be taken into account that in accordance with the franchise agreement, insofar as the Max Stock chain had sought to establish an additional branch in the city, it should have given the existing franchisees the opportunity to operate it, in accordance with the conditions that will be determined (see above in paragraph 3(f)). There is a basis to assess that the parties would have reached agreements, taking into account the undertaking of Max Stock to grant the counterclaimants a kind of "right of way" as aforesaid. Hence, the activity of the branch in Bat Yam was not supposed to be exposed to competition from Max Stock. It is certainly possible that the competing branch would not have been established at all, had the existing branch not become a branch of the Big Stock chain, after the unlawful cancellation of the agreement.