Civil Case (Haifa) 26321-09-22 M.S.I. Furniture Moving Ltd. v. Mattresses Kfar Claims Inter-Organization International Trade Ltd.

Judgment

The Statement of Claim

1. The defendant is a company engaged in the manufacture and marketing of furniture and since 2013 has entered into a contract with a company called M.S.I. Engineering Ltd.  (hereinafter - S.I.  Engineering) for the purpose of transporting the furniture to the customer's home and assembling it.  In this regard, it should be clarified (and this is not detailed in the statement of claim, but it emerges from the contract that was attached) that according to the contract, the customer is supposed to bear the cost of transportation and assembly and pay it directly to the carrier, while the defendant's liability is only in the event that the cumulative monthly consideration has not reached the minimum amount specified in the contract (ILS 130,000).  I will also note that in the contract it was agreed that each party had the right to bring the engagement to an end by 60 days' notice (hereinafter - the first contract).
2. S.I. Engineering is a private company owned by Mr. Mahmoud Younis, who is also the owner of the plaintiff (hereinafter - Younes).  This company engaged in construction work and in addition, as aforesaid, operated the transportation system according to the first contract.  The plaintiff claims that the parties worked in this way until the end of 2016, when Younes asked to carry out the moving activities within the framework of a separate company, the plaintiff, which he established for this purpose at the beginning of 2017.  The plaintiff claims that this was required, inter alia, due to the need to finance new trucks and the bank credit required for this purpose.  The plaintiff claims that in light of this, she asked the defendant to sign a contract with her (instead of with MSI Engineering) in which the possibility of terminating the engagement with 60 days' notice would be removed and a period of 7 years would be set in its place.  According to the plaintiff, the parties negotiated on the matter, and finally, on January 1,2017, a new contract was signed, in which an engagement period was set until December 31,2022, i.e., for 6 years.  This contract also stipulated a monthly consideration in the amount of ILS 140,000 instead of the sum of ILS 130,000 specified in the first contract (hereinafter: the second contract).
3. The plaintiff claims that the parties worked according to the second contract, but in October 2017 the defendant informed her of the termination of the engagement between them as of December 31,2017, without any proceeding preceding it. It was further claimed that in March 2018, the defendant filed a lawsuit against the plaintiff in the Hadera Magistrate's Court, in which she sought to declare that she was not required to repay a number of certified checks that she had given to the plaintiff due to her breach of contract, but the claim was dismissed.  An appeal filed by the defendant (hereinafter - the previous proceeding) was also dismissed with consent from the plaintiff.
4. In light of this, the plaintiff claims that the defendant breached the second contract, misrepresented and misled her. It was further claimed that she was not given a hearing.  The plaintiff claims that she suffered damages due to the defendant's conduct resulting from the loss of income for the remaining 5 years until the end of the second contract period, and a total of damage in the amount of ILS 2,224,836.  She also claims damages in respect of the sale of the trucks purchased for the purpose of fulfilling the contract, in the sum of ILS 165,631; reliance damages in the amount of ILS 200,000; and mental anguish in the amount of ILS 100,000 and in the amount of ILS 2,690,467.

The statement of defense

5. The defendant argues in her statement of defense that the second contract is an ostensible contract drawn up at the request of the plaintiff, who needed it for the purpose of presenting it to the bank, but in practice the parties agreed that there would be no change in relation to the possibility of terminating the engagement between them with 60 days' advance notice. The defendant emphasizes that the ability to terminate the contract with advance notice was important to her and she had no reason to waive it.  In light of this, the defendant argues that the second contract should not be given validity, and in particular the cancellation of the termination clause.  The defendant further claims that after the signing of the second contract, the plaintiff changed her behavior and began to disregard the work, and after being given several warnings, the defendant notified her of the termination of the engagement with more than 60 days' notice.  It was therefore argued that the plaintiff had breached the contract and therefore the engagement was terminated by way of a demand for compensation for the damage she caused.
6. The Ottoman Settlement [Old Version] 1916 The defendant further argued that the plaintiff's conduct should be viewed as deception and therefore she was entitled to bring about the cancellation of the second contract. She also claimed that the plaintiff acted in bad faith during the pre-contractual stage.  In addition, it was argued that if her claim that the second contract was prima facie was not accepted, then the plaintiff breached the contract and the defendant had the right to cancel it as she had done.

12-34-56-78 Chekhov v.  State of Israel, P.D.  51 (2)

7. The defendant further claimed that in any event, the plaintiff did not suffer any damage, since her conduct within the framework of the contract was loss-making. In this regard, it was argued that the establishment of an independent distribution system required the plaintiff to invest considerable resources that did not cover the amount she earned from the contract.  The defendant attached to her statement of defense the opinion of her CFO, CPA Asher Malul, which supports this claim.  The defendant also disputed the plaintiff's right to compensation for the other damages claimed, including the damage from the purchase of the trucks; reliance compensation; and mental anguish.  In light of this, the defendant petitioned to dismiss the claim.

The parties' evidence

8. The parties submitted their evidence by way of affidavits. On behalf of the plaintiff, only Younis's affidavit was submitted, but he was asked to summon Mr. Majdi Zeid (hereinafter - Majdi) to testify.  On behalf of the defendant, an affidavit of her administration (hereinafter - Itzik) was submitted, as well as Majdi's affidavit.  The defendant also submitted an opinion on behalf of CPA Eyal Mor (hereinafter - CPA Mor).
9. After the plaintiff learned that Majdi had filed an affidavit on behalf of the defendant, she requested to attach the affidavit of Majdi's father, which was filed in the previous proceeding between the parties. The court (in the previous panel) granted the request.
10. However, in the end, Majdi and his father did not testify. I will discuss this issue at length below, but I will note that the plaintiff waived the testimony of Majdi's father after claiming that he had not received a permit to enter Israel (Majdi and his father are not residents of Israel and live in the Palestinian Authority).  Later, the defendant waived Majdi's testimony after claiming that he was "not willing to come."
11. To complete the picture (and this will be important later), I will note that the plaintiff attached to the affidavit a document that she called an opinion on behalf of CPA Yosef Ayyash Jabareen (hereinafter - CPA Jabareen), even though the document was not prepared as an opinion. At the meeting on October 28,2025, counsel for the defendant requested that this document be removed from the file because it was not prepared as an opinion.  Counsel for the defendant confirmed that this was not an opinion, but rather that "he makes a calculation as an accountant of the company and submits documents that he has prepared" and in the end CPA Jabareen did not testify and the reasons for this will be detailed below.
12. At the end of the day, only the managers of the parties (Younes and Itzik) testified and were questioned about their affidavits, and CPA Mor was interrogated. I did not see to detail the parties' testimonies and the evidence that was submitted at this stage, and this will be done at the stage of the hearing and in accordance with what is required.

The parties' summaries

13. The plaintiff argued in her summaries that the defendant's claim that the second contract is a contract for the sake of appearance was not proven. It was argued that this was an argument for which an increased level of proof should be required, whereas in this case the defendant testified only to her manager, so that it was a single testimony of a litigant, and the claim was rejected for this reason alone.  The plaintiff further claimed that the defendant did not attempt to prove her claim that she (the plaintiff) requested the second contract in order to present it to the bank, and even though she (the plaintiff) waived the banking privilege, the defendant did not attempt to summon the bank's representatives and find out whether the second contract was indeed presented to them.  It was argued that this conduct should be attributed to the defendant's obligation.  It was also argued that the defendant's claim that it always adheres to the termination clause within 60 days was not proven, since no contract was presented to prove the claim.
14. The plaintiff also claimed that in the previous proceeding, the defendant's manager claimed that he had a recording of Majdi admitting that this was the purpose of the second contract, but that the recording was never presented, so it can be assumed that this claim was not true. In this context, the plaintiff claimed that Majdi had given testimony in the previous proceeding in support of her version, and that the defendant's counsel had validated Magdi's version as evidence in this proceeding, even though he did not testify, since he had relinquished his testimony and declared that he would suffice with what he had said in the previous proceeding.
15. With regard to Itzik's claim that he did not have a signed copy of the second contract at all, it was claimed that it was attached to the statement of claim in the previous proceeding, which was filed in March 2018, so there is no basis for the claim. The plaintiff also referred to Majdi's testimony in the previous proceeding, where he confirmed that Younes came to the defendant's offices to sign the second contract, and wondered why it was necessary if it was a contract for appearances only.  The plaintiff also asked not to accept the defendant's argument that after the termination of the engagement, the plaintiff did not try at all to hold on to the engagement period in the second contract, and referred to her version in the statement of claim in the previous proceeding (paragraph 13), where she made a different claim.  She also referred to a contradiction in Itzik's version regarding the question of whether or not he signed the second contract.  With regard to Itzik's claim in his interrogation that in fact the consideration was ILS 140,000 even before the second contract, and therefore the change in the amount should not indicate the veracity of the second contract, it was argued that this was a suppressed version that was not proven.
16. The plaintiff further argued that the argument that the defendant had no interest in relinquishing the termination clause of the engagement should not be accepted, since this granted her "industrial quiet" for a period of six years, and therefore she had an advantage in doing so, just as the plaintiff had.
17. In light of this, the plaintiff sought to reject the defendant's claim that the second contract was a contract for appearance.
18. With regard to the damage, it was argued that the defendant's calculations should not be accepted, but rather that the calculation is simple, in which the costs of operating the contract must be calculated and thus understand whether it is a profitable contract or not. In this regard, it was argued that the cost of operating the trucks and the salaries of the employees should be taken into account, as CPA Jabarin, who is familiar with the expenses by virtue of his work for the plaintiff.  In this regard, the plaintiff referred to the opinion of CPA Malul, which was attached to the defendant's statement of defense, and claimed that he had also made a similar calculation, but that he had made a mistake when he took into account the operating cost of 4 trucks, while in the contract there is a commitment for only three.  It was argued that matching this opinion to three trucks leads to a profitable result.
19. With regard to CPA Mor's opinion, it was argued that it should not be accepted as it is based on the plaintiff's balance sheet in 2017 (and the reference is to the profit and loss statement). It was argued that this report does indeed present a loss, but CPA Mor's position should not be accepted, since the transportation activity in 2017 was also carried out through MSI Engineering, which owned the trucks, and therefore part of the proceeds for the transportation work was reported within its framework.  For this reason, it was claimed, some of the expenses noted in the report are related to the work of M.S.I.  Engineering, and therefore the amount of the plaintiff's expenses cannot be understood from it.  It was therefore argued that the data appearing in the plaintiff's profit and loss statement do not reflect the correct amount of profit, and for this purpose the plaintiff made calculations in her summaries and sought to show that the average monthly income is ILS 123,000, and when Itzik admitted that she operated a fourth truck, the conclusion is required that the income exceeded ILS 1.4 million (10x 140,000 NIS) and that this figure proves that not all of the income was documented in the report.  She further argued that CPA Mor's approach to calculating the profit from the contract was incorrect and referred to his words regarding the collection of Younes' salary.
20. With regard to the claim that the plaintiff's manager did not specify in his affidavit the reasons why the 2017 report should not be relied upon, it was argued that at the time he submitted the affidavit, there was still no Mor CPA opinion, but only the opinion that was attached to the statement of defense, which was similar to the method of calculation made by the plaintiff herself.
21. With regard to the calculation made by CPA Jabarin, the plaintiff argued that the document he prepared was admissible as evidence and that significant weight should be given to the calculation, because it was the plaintiff's accountant who did so by virtue of his position. It was argued that the defendant's counsel agreed that this was an appendix to the affidavit of the plaintiff's manager and even waived his interrogation, and that when it was a "document that was given to a party in the course of his ordinary business" it is admissible as evidence of the veracity of its contents.  It was argued that if it were an external accountant, then it would have been necessary to submit an opinion, but this is not the case when it is a plaintiff's accountant, and therefore the internal document he prepared is sufficient.  It was also argued that CPA Mor also referred to the calculation made by CPA Jabarin, so that it should be considered admissible to prove its contents.
22. It was also argued that the opinion prepared by CPA Malul was prepared in the course of the defendant's regular business and that her manager did not dispute its contents, so that she could not disavow it. The plaintiff claimed that this opinion indicates that the contract is profitable.  In this regard, it was argued that there was a presumption that a contract drawn up for five years was profitable for the plaintiff and this presumption was not concealed.  In light of this, the plaintiff sought to determine that the contract was supposed to yield her a monthly profit of ILS 37,400 as determined in CPA Jabarin's calculation, and therefore to accept the claim and alternatively to determine the profit rate by way of an estimate.
23. The defendant claimed in its summaries that this claim was filed with a considerable delay of about five years, and this only after the judgment in the previous proceeding was given that it was the one who initiated it. It was also claimed that the plaintiff never filed a demand for compensation for the period of 5 years remaining under the second contract, nor did she file a counterclaim to the claim filed by the defendant against her (which dealt with the cancellation of a number of future checks that she had given her).  It was further claimed that about a month after the termination of the engagement (February 18,2018), the defendant sent the plaintiff a letter regarding certain checks, but the defendant did not respond and did not claim that the defendant could not terminate the contract with 60 days' notice.  It was argued that the plaintiff did not explain and did not bring any evidence in order to deal with the claim of delay, and it should be concluded from this that she knew that it was a contract for the sake of appearance and that the defendant had the right to terminate the engagement with 60 days' notice.
24. With regard to the fact that the contract was prima facie, it was argued that it could be proven on the basis of the conduct of the parties and on circumstantial evidence. It was argued that it was proven that Majdi told her that the need for the second contract was for the purpose of presenting it at the bank, and that Yunis's testimony on the matter was contradicted by him when he claimed that he had approached a new bank in order to receive financing, but did not explain how a bank that was not familiar with the plaintiff's activity agreed to this without presenting a long-term employment contract.  The defendant also claimed that the plaintiff did not present any evidence that could be learned from her that she was not required to present the second contract at the bank, and claimed that the delay caused her (the defendant) evidentiary damage on the matter, since contacting the bank after many years was difficult.  It was further claimed that Itzik did not claim with the knowledge that this was indeed what the bank requested, but only that this was the reason presented to him by Majdi.
25. With regard to the change in the monthly amount in the second contract, it was argued that this was the consideration that had already been paid earlier, so there was nothing of this change. The defendant further argued that there is no dispute that the person who conducted the negotiations with her prior to the drafting of the second contract was Majdi, who served as the plaintiff's agent, and therefore his conduct obligated her.
26. The plaintiff confirmed that the burden of proving that the contract was apparent rested with her, but argued that in light of the existence of "signs of fraud" and since the information was in the plaintiff's possession, including access to her bank account and an explanation of liens that were recorded on her immediately upon its establishment, it should be determined that the burden was reversed. In this regard, it was argued that the plaintiff did not bring Majdi, who represented her in the negotiations, to testify, and that she was the one who tried to do so but was unsuccessful for reasons that should not be attributed to her.
27. The defendant further argued that Majdi's conduct should be viewed as deception, that is, if the claims he made before her were not true (i.e., that the plaintiff needed the second contract in order to present it at the bank), then he misled her, and if he had not presented the matter in this way, she would not have signed the second contract.
28. On the question of the damage (which is of course relevant only if it is determined that the second contract is valid and binding on the parties), it was argued that the plaintiff did not prove the claim of damage related to the sale of the trucks, as well as her entitlement to compensation for the absence of a hearing. I will note that I have already not seen fit to detail the claims on these issues, if only because the plaintiff abandoned these claims in her summaries and did not return to them at all, so this is sufficient to dismiss this part of the claim.  The same is true with respect to the claim of mental anguish that was not mentioned at all in the summaries and the claim regarding reliance damages.  These claims were not mentioned in the summaries and they were therefore neglected, and I will address the issue later.
29. With regard to the expected profit from the contract, it was claimed that the plaintiff did not submit an expert opinion, but rather relied on a letter from her accountant that was not an opinion, and in fact did not bring evidence on the matter. She also claimed that it is possible that after the termination of the engagement, the plaintiff turned to engaging in a profitable business and that she had a duty to reduce the damage.
30. The defendant referred to the opinion of CPA Mor on its behalf, according to which the plaintiff was a loss-making company and that its expected cumulative loss until 2022 was between ILS 351,000-365,000. In this regard, it was argued that the plaintiff's argument against the opinion is not that it is incorrect, but that it relies on an erroneous document of its own, which is an audited annual report that she submitted to the tax authorities, and against which she argues.  It was argued that in any event, the plaintiff did not prove or bring any evidence from which it can be learned that her audited report is incorrect and therefore this should be attributed to her.
31. It was argued that CPA Mor's opinion was based on the usual approach, i.e., an audited report by the plaintiff herself, and therefore there was no need to "seek" additional documents as demanded by the plaintiff. It was also explained that CPA Mor dealt well with the questions addressed to him in his interrogation.  With regard to the tension between the figure that arises from the audited report and the logical assumption that the contract is profitable, it was argued that CPA Mor gave a proper answer and noted that it is unlikely that the difference will be so significant - from a loss of hundreds of thousands of shekels to a profit of hundreds of thousands of shekels.  He also explained that contracts are often drawn up in the hope of future profitability, when until then they allow a stream of payments to repay the company's expenses, even though they are losses.
32. In summary, the defendant claimed that the plaintiff included in her affidavit and summaries "hypothetical and baseless numbers and calculations without the backing of evidence and/or opinion or reference and reliance on accounting material..." and that in any event, she did not deal with the opinion of CPA Mor and did not contradict it.
33. In light of this, the defendant petitioned to dismiss the lawsuit against her.

Discussion and Decision

34. This will be our way of approach. First, I will discuss the question of whether it has been proven that it is a contract for the sake of appearance.  Insofar as the answer to this question is positive, the claim for subsistence damages is subject to dismissal, since in this situation the contract is void (section 13 of the Contracts Law (General Part), 5733-1973; hereinafter - the Contracts Law).  To the extent that the claim that it is a contract for the sake of appearance is rejected, I will discuss the question of damage, since the termination of the engagement in this case constitutes a breach of contract.  I will emphasize that contrary to what is stated in the statement of defense, the defendant no longer claims that it terminated the engagement with the plaintiff due to any breach and it agrees that if the claim that this is a contract for the sake of appearance is rejected, it is a breach on its part that entitles the plaintiff to compensation (see transcript of the meeting of December 9,2025, at p.  47, "To claim that this constitutes a breach of the agreement, they did not argue").  I will also emphasize that nothing was argued in this matter in the summaries, and hence the defendant abandoned this argument (see various plurals: Civil Appeal Authority 3149/24 Rabin Magidash v.  Yoav Magidash [Nevo] (September 25,2024), para.  13; Civil Appeal 3250/02 Simcha (Sima) Wintzelberg v.  A.  Diesel Parts Ltd.  [Nevo] (June 7,2005)).
35. I will therefore turn to examine whether it has been proven that this is a contract for the sake of appearance.

The Second Contract - Is It Appearance?

36. The defendant claims, as stated, that the second contract is a contract for appearances, but it is worth emphasizing that it does not claim that the entire contract does not reflect the true agreement of the parties. Its argument is that only the condition according to which the contract will remain in force until December 31,2022, i.e., for a period of about 6 years, is ostensibly, while the other conditions correctly reflect the agreement of the parties.  In this regard, it argues that the real agreement between the parties was that the condition in the first contract, according to which each of the parties may bring the contractual relationship to an end with 60 days' advance notice, will remain in place, despite what is stated in the second contract (hereinafter - the release clause).
37. The plaintiff does not dispute that if this argument is accepted, then it is an ostensible contract within the meaning of section 13 of the Contracts Law, and this position is acceptable to me. As is well known, "an ostensible contract is a contract in which there is a discrepancy between the parties' declarations of will and their true will.  While outwardly the parties agree on a certain legal arrangement, their real intention is different" (Gabriela Shalev and Effi Zemach, Contract Law (4th ed., 2019)), 301; see also Civil Appeal 3805/23 Galina Goldenberg v.  Bar-Zaan Real Estate and Tourism Ltd.  [Nevo] (August 20,2024), para.  16 (hereinafter - the Goldenberg case); Civil Appeal 810/17 Basha v.  Gordiji [Nevo] (October 31,2018), para.  34).  A determination that a contract is ostensibly therefore fulfills the true intention of the parties and rejects its outward-false expression.
38. The argument that this is a contract for the sake of appearance is a factual claim that can also be deduced from the overall circumstances of the case, and the burden of proving it is on the defendant, since it is the defendant who makes this claim (Civil Appeal 3725/08 Nissim Hazan v. Arik Hazan [Nevo] (February 3,2011), para.  25).  With regard to the degree of proof required, the case law held that "due to the nature of the said claim, and in particular where the gap between the implicit and overt agreement is intended to achieve an illegal purpose, an increased level of proof is required in order to establish it" (Goldenberg, para.  18).  In this case, it was not argued that there was an illegal purpose and no factual basis was presented that would enable this conclusion to be reached, and yet the burden of proof of the claim is increased in light of its essence, even if only in terms of the nature and quantity of evidence required.
39. And from the general to the individual.
40. I will preface by saying that the amount of evidence presented by the parties is relatively small. It is especially noteworthy of the fact that Majdi was not brought to testify, despite the fact that he was a central axis in the formulation of the agreements as expressed in the second contract.  In this matter, there is no dispute between the parties that it was Majdi who negotiated on behalf of the plaintiff for the purpose of signing the second contract (see, for example, at p.  8; paras.  27-p.  9; para.  14 of the minutes of October 28,2025), and that Younes was not present at all at the meetings in which the negotiation procedure led to its conclusion.  In this regard, Younes claimed, "I will tell you what I told Majdi and what Majdi told me.  Now if they were talking, he said something else, Itzik said to him, I was not at this meeting, but I, what I said to Majdi needs a contract so that we will work more orderly and I will have confidence in my work, that's what I can say" (pp.  25-26 of the transcript of the meeting of October 28,2025; see also p.  49, at p.  23 - p.  50, at para.  13).  I will note that in Younis's affidavit a somewhat different picture was presented, from which it can be understood that the negotiations were conducted directly between him and the defendant's manager, when he claimed that "Mr. Majdi Zeid was also involved in the conduct of these conversations" (paragraph 24 of his affidavit; my emphasis - 19).  In his testimony, however, a clearer version was given, indicating that he did not conduct the negotiations at all and could not say anything about the agreements reached by Majdi and Itzik.
41. Here it should be noted that there seems to be no dispute that Majdi was an agent of the plaintiff. The plaintiff confirmed that Majdi was the contact person on her behalf and he was the one who managed the transportation system activity for her vis-à-vis Itzik.  For our purposes, it is sufficient to say that this is at least true with regard to the conduct of the negotiations prior to the signing of the second contract.  The plaintiff did not dispute that if it is determined that Majdi presented the matter to Itzik as the latter claims, then his conduct is binding on her, even if Younes asked him to obtain genuine consent and not for the sake of appearance (that the conduct of an agent who acted on behalf of his sender may bind the sender even if the agent acted in bad faith and fraud towards the other party, see: Civil Appeal 318/82 Shai Yavetz v.  Mediterranean Car Agency Ltd.  et al., IsrSC 38(4), 85); Civil Appeal 1796/10 Sarah Katban v.  Bank of Jerusalem Ltd.  [Nevo] (December 7,2011))
42. Against the background of Majdi's central role in the negotiations and the fact that only he (other than Itzik) could describe how the negotiations on the matter were conducted, Majdi's absence is significant. I will mention that the defendant submitted an affidavit on Majdi's behalf but at the end of the day waived his appearance, claiming that he had informed her that he was not willing to testify.  On the face of it, this deficiency should be attributed to the defendant's duty to prove her claim that it was a façade contract.  However, the issue is more complex, due to a number of data, as I will detail below.
43. Majdi is a resident of the Occupied Territories, so the ability to enforce his appearance is not easy, since the possibility of issuing a writ of habeas corpus is relevant to the residents of the state, and at least to those who reside there. Therefore, although it was possible in principle to demand that Majdi's appearance be enforced, I accept that this is not an easy task and that there is no certainty that the demand would have caused him to appear.  For this reason, in my opinion, it is appropriate to ease the evidentiary significance that should be attributed to the defendant's duty because she waived his summons.  To this it should be added that the plaintiff did not dispute the explanation given by the defendant (i.e., that Majdi refuses to come) and did not even try to summon him on her behalf.  This is not a person who is a stranger to the plaintiff, but rather someone who has had a close working relationship with her for many years (and it is possible that even today, but I do not have clear data on the matter), and it is he who conducted the negotiations in dispute for her.  I will also mention that the plaintiff initially asked to summon Majdi to testify, before it became clear that he had submitted an affidavit on behalf of the defendant.  It is therefore clear that after the defendant waived his summons, the plaintiff was able to try to summon him.  This is all the more reinforced in light of the fact that without Majdi's testimony, the plaintiff has no way of proving with direct evidence the manner in which the conversation between him and Itzik was conducted, and in fact to contradict the latter's claim regarding the manner in which Majdi presented the matter to him.
44. Taking into account all these considerations, I believe that the fact that I did not have the privilege of hearing Majdi's version of the duty of both sides should be taken into account.
45. To complete the picture on this issue, I will note that I do not accept the plaintiff's argument that Majdi's statements in the previous proceeding are admissible to be used as evidence in this proceeding in light of the defendant's consent counsel. The plaintiff's intention was to the words that the defendant's counsel said at the meeting on January 8,2026 (when he waived Majdi's summons), which were: "I think that from a legal point of view, even without this witness, what he said and that he was interrogated in her room and there are his statements, I declare that these are my witnesses." These words, which are indeed not sufficiently clear, do not, in my opinion, establish an agreement to view Majdi's testimony in the previous proceeding as admissible evidence, and certainly not a clear consent as required.  Likewise, there is no reliance on Majdi's statements in the previous proceeding.  I therefore reject this argument and since Majdi did not testify before me, his statements in the previous proceeding are hearsay testimony that cannot be used here.
46. I will therefore turn to examine whether the circumstances of the case, as a whole, support Itzik's version, and this is at the level of proof required in this case.
47. The economic logic of the contract - the defendant argues that there is no economic and business logic on its part to agree to a contract for a period of 6 years without the ability to exit it. The plaintiff responds that the contract benefits the defendant in the sense that it is a fixed sum that cannot be changed, so that she would not have been able to meet the demands regarding additional payments.  I do not believe that I can determine that this is a contract devoid of economic or business logic, which is unlikely that the defendant would have entered into it if it had not done so "as a backstop" for the plaintiff (in the words of Itzik on page 31 of the minutes of the meeting on December 9,2026).  Indeed, the defendant waived in the second contract an important condition for it (the release clause), and nevertheless, it would not be far-fetched to claim that due to the relationship between the parties at the time and her satisfaction with the plaintiff (with whom she worked for a number of years), she did not see this as a disadvantage but rather as an advantage, since she obtained a fixed monthly consideration for a long period.  It should be remembered that in any event, even in this type of contract, each party has the right to cancel it due to a breach, so that this is not a contract from which there is no way out.
48. Indeed, Itzik claimed, "I have made dozens of agreements, I have never signed an agreement with someone who has no point of exit" (p. 36, of the minutes of the meeting of December 9,2026), but he did not present other agreements from which it was possible to learn about any pattern of action of the defendant.  To be precise: it is clear that even if additional agreements had been presented, this would not have shown that in this case it was not a true contract, but it would have been expected of someone who claims the existence of a contract on the face of it, to make some effort to prove his claims.  It is therefore not possible to determine that this is a contract devoid of business-economic logic for the defendant.
49. The claim that the plaintiff needed a contract in order to present it at the bank - another claim of the defendant is that the plaintiff needed a long-term contract in order to present it at the bank and to obtain credit through it. In doing so, she sought to prove that there is a real probability that this is how Majdi presented the matter to her.  In this regard, it was argued that this was a new company that requested credit at a bank with which it had never worked, so it is unlikely that it was not required to present financial strength in the form of a long-term contract with a secure income over time.
50. 00The plaintiff claimed that she was not required to do so by a bank and even agreed that the defendant would contact the bank with a question on the matter. At the end of the day, no evidence was brought from the relevant bank, and it is clear that this should be attributed to the defendant, who bears the burden of proof, as well as that this claim advances her case so that it was expected that she would act to file it (Civil Appeal 296/11 Muhammad Najar v.  Shauqi Hamdan Alyan [Nevo] (February 23,2012), judgment of the judge (as he was then called) Amit).  Indeed, I accept that after many years a practical difficulty might have arisen in the matter, and in this matter there is substance to the defendant's claim that the delay in filing the claim caused her evidentiary damage in the matter, but she did not make any attempt to submit any bank evidence (if only in order to obtain an answer that this is not possible after the passage of years), so I do not believe that the delay in the complete soup is her omission.

0

51. In the absence of concrete evidence as to the demands made to the plaintiff by the bank, we are left with a general argument that it is logical and reasonable that the bank demanded a long-term contract or evidence of financial strength. I am prepared to assume that there is a considerable likelihood that a banking body will present such a demand to a limited company that wishes to open a new bank account and receive credit.  At the very least, it can be said that it is quite possible that the plaintiff was required to present guarantees for the existence of a fixed income.  However, this is not sufficient for it to be possible to establish a clear factual finding on the matter, since this depends on a number of factors, including the customer's requirements in terms of credit and his ability to present other collateral (such as a lien on a specific asset, a personal guarantee, etc.).  The situation has not been clarified in a way that makes it possible to determine that it is more likely that this was the bank's demand than the other option.
52. Conclusion So far - when I have not accepted the argument that there is no logic in this contract, as well as the claim that the plaintiff was required to present it at the bank, the conclusion is that it cannot be said that the contract in itself indicates that it is only for appearances. At this stage, I will therefore turn to examine the circumstances of the conclusion of the contract in accordance with the evidence presented that it may be possible to reach the conclusion as claimed by the defendant.
53. The starting point is that when Younes asked to establish a new company at the beginning of 2017 (i.e., the plaintiff), it was logical that he needed a new contract that would bear the plaintiff's name under the name of M.S.I.   Therefore, it is logical that he approached the defendant for this purpose.  A review of the two contracts shows that in addition to changing the name of M.S.I.  Engineering to the plaintiff's name, there are two other changes in the second contract in relation to the previous one.  The first is to change the amount from a total of ILS 130,000 to ILS 140,000, and the second is to cancel the release clause and replace it with a determination that the contract period is until December 31,2022, i.e., for a period of six years.
54. Changing the amount of consideration - the fact that the amount was also different in the second contract is ostensibly consistent with the fact that it is a real contract, since if indeed the need presented by Majdi was only on the subject of the period of the contract (and the change of name to the plaintiff's name), why was the new contract also used to benefit the plaintiff on the issue of the monthly consideration? I will emphasize that Younes testified in his affidavit that this change was part of the negotiations (paragraph 24), but in Itzik's affidavit there is no reference to this issue, and this supports his agreement on this point. Moreover, when Younes testified in his interrogation about this demand, he was not accused of being incorrect (p.  8, s.  27 of the minutes of the meeting of October 28,2025), and the defendant's counsel even asked him , "Was there also an additional ILS 140,000 or ILS 130,000, right? " (p.  50, s.  3 of the minutes of the meeting of October 28,2025).  This procedural conduct also supports the agreement to this argument.
55. Indeed, in Itzik's interrogation (which took place at a later meeting) he claimed that the recording of the sum of ILS 140,000 was in fact a written anchor of the amount actually paid during this period (p. 35, s.  8 of the minutes of the meeting of December 9,2026).  However, this was the first time that this was claimed so that it was a suppressed testimony and in any case a late testimony that is difficult to rely on in the absence of supporting evidence.  Moreover, against the background of the fact that the plaintiff claimed that this change should be regarded as evidence that the second contract was genuine, it was expected that the defendant would present evidence from which it was possible to verify her claim that it was not an additional payment but rather an amount that had already been actually paid.  The evidence was probably in her possession, so it should be attributed to her.  The defendant was therefore unable to explain why the change in consideration should not be regarded as supporting the plaintiff's version that it was a true contract.  I am aware that it is possible, of course, that the change in this matter was real and on the subject of the release clause not, and that nothing should be learned from the other.  However, the defendant did not make this claim, but rather presented a different factual argument which was not proven, so that it should be attributed to its obligation and the change in the amount should be regarded as consistent with an argument for the veracity of the second contract as a whole.
56. Younes' signature on the second contract - The plaintiff argues that the fact that Younes signed the second contract should be taken as evidence that it was genuine. I accept that if Younes came specifically to the defendant's offices in order to sign the contract, even though the negotiations were conducted by Majdi, this should support the claim that this was a real contract and not a façade.  However, I do not believe that this claim is factually proven.  I will explain.
57. In Itzik's affidavit, no details were provided regarding the question of how the agreement was signed, and in fact not in the affidavit of Younes, who claimed that it was the defendant who "drafted it and brought it to signing" (paragraph 29). However, in his interrogation, Younes claimed that he came to the defendant's offices, signed the contract and took a copy (at pp.  49-50 of the minutes of the meeting of October 28,2025).  Itzik did not confirm this in his interrogation and even claimed that he did not have a copy of this contract at all (p.  30 of the minutes of the meeting of December 9,2026).  When it comes to a version versus a version, I do not believe that a clear factual finding can be made on this issue.
58. I did not ignore the plaintiff's claim that the defendant attached the second contract to the statement of claim in the previous proceeding, which was filed shortly after the termination of the engagement, and that this indicates that she left a copy in her possession. However, the plaintiff did not submit the text of the second contract that was attached to the statement of claim in the previous proceeding, and it is not possible to know whether it is a copy signed by both parties, which alone should support her claim (see, for example, the copy that the defendant attached to the affidavit in this proceeding, which was not signed by anyone).  I will also note that when Itzik was accused of attaching the second contract to the court, he replied that he had received it from the plaintiff (p.  30 of the minutes of the meeting of December 9,2026), but it is not possible to know when this happened and whether the reference was to the wording that was attached to the statement of claim or whether it was afterwards.  To sum up this point, it is not possible to determine that Younes signed the contract.
59. The delay in filing the claim - the defendant argued that it should be learned from the fact that the claim was filed about five years after the termination of the engagement that the plaintiff did not "seriously" believe in her claim. I cannot accept this argument since the plaintiff had already claimed in the previous proceeding that the termination of the engagement was unlawful and contrary to the second contract, so the delay does not indicate that she did not believe her claim.
60. The plaintiff's reaction to the termination of the engagement - an important question that can assist in tracing the secrets of the parties is how the plaintiff reacted when she was given notice of the termination of the engagement, i.e., whether she immediately claimed that this was not possible in light of the terms of the second contract (subject to cancellation due to a breach, of course) or whether it is possible to learn from her initial reaction that she recognized the appearance of the second contract and did not comply with its terms. In this regard, nothing is found in Itzik's affidavit and the defendant did not even submit any document on the subject, including the letter of termination of the engagement.
61. In the summaries, the defendant referred to a letter she sent to the plaintiff in February 2018 (which was attached to the plaintiff's evidence) and sought to see the fact that the plaintiff did not respond to the letter, and in any case did not claim that the second contract did not allow it, as support for her version. I do not believe that this lack of response is sufficient to conclude what the defendant is asking for, and I will note that Younes was not asked any questions on the subject, so I did not merit to hear his version on the subject, and this is the defendant's duty (see: "In the framework of cross-examination, the opposing party is obligated to examine the witness at every point of disagreement and disagreement, in order to give the witness an opportunity to 'defend' his version, and to allow the court to get an impression of the manner in which it will be done" (Criminal Appeal 4609/14 Netanel Zurderker Best v.  State of Israel [Nevo] (March 1,2015), para.  19)).
62. Indeed, in his interrogation, Itzik claimed that Younes did not claim to him, "Why are you stopping me from working, I am signing a five-year agreement with you. He did not say a word.  It is possible that at that time we would have reached some kind of understanding, he only remembered this matter when the prosecution raised it in Hadera" (Minutes of the meeting of December 9,2025, at pp.  31-32).  However, I do not believe that this is sufficient to establish a factual finding as requested.  First, this is an argument that was not made in the affidavit, even by a hint, and this significantly impairs its weight and the ability to trust it in light of the late stage at which it was claimed.  In addition, the fact that the plaintiff did not return to the defendant after the termination of the engagement the checks she held (which were given in advance and referred to a future period in which there was no longer an employment relationship between the parties) can indicate that she did not believe that the defendant was entitled to terminate the engagement with 60 days' notice, and in any event, this behavior is not necessarily consistent with the defendant's version.  On the contrary, Younes claimed in his affidavit that prior to filing the claim in the previous proceeding, the parties negotiated compensation, and when it was unsuccessful, the defendant filed the claim that is the subject of the previous proceeding (paragraph 38 of his affidavit).  On this as well, Younes was not asked any questions, and this would also impair the ability to accept the defendant's version on the matter.
63. In summary: the parties presented relatively sparse evidence that made it impossible to obtain a broad picture from which to draw clear conclusions as to the nature of the second contract. The defendant failed to refer to any evidence, whether circumstantial or direct, from which it can be concluded that it is more likely that this is a contract for appearance.  On the contrary, the only point from which any conclusion can be drawn about the nature of the contract is actually the defendant's obligation, and I mean that there has also been a change in the amount of consideration.  In this state of affairs, the conclusion is that the defendant did not prove that it was a contract for the sake of appearances, and I will mention that the burden on this issue is increased in terms of the quantity and quality of the required evidence.  I will further emphasize for the sake of the completeness of the reasoning that Itzik's testimony did not leave me with a strong impression of telling the truth.  I do not determine that Itzik did not tell the truth, but my intention is that against the background of the absence of direct or circumstantial evidence from which a clear conclusion is drawn (except for one from which a conclusion is actually drawn to the defendant's obligation), the defendant was required to present testimony that leads to a deep degree of conviction that it is true.  I cannot say this about Itzik's testimony.  To be precise: I did not ignore the fact that the plaintiff did not present direct testimony regarding the conduct of the negotiations, but she does not bear the burden of proof as to the nature of the contract, and in light of the type and quantity of evidence presented by the defendant, including the manner in which I was impressed by Itzik's testimony, the conclusion is that she did not prove her claim.
64. Before concluding this chapter, I will note that the defendant argued alternatively that if she rejects her claim that the contract is for appearances, then it must be determined that Majdi misled her during the conduct of the negotiations (section 15 of the Contracts Law). Insofar as I have come to the conclusion of the defendant's opinion, she is referring to a situation in which Majdi was in fact a kind of "double agent" and presented her with a demand for a contract on the face of it, even though it was not sent by Younes for this purpose.  In my opinion, this legal argument is superfluous, since in any case, if it had been factually proven, Majdi's actions would have obligated the plaintiff by virtue of being her agent (see what was noted above in section 41) and the contract would have been classified as a contract for appearances, so that there was no need to address the claim of deception.  In any case, as noted above, the claim that these were the things that Majdi gave to Itzik was not proven from a factual point of view, even if I assume that in order to prove this fact, there is no need for an increased burden as is required for the purpose of proving a contract on the face of it.
65. The result is that this is a valid contract. The defendant did not dispute that in this situation this is a breach that entitles the plaintiff to compensation.  I will therefore turn to the question of whether the plaintiff proved her damage.

Plaintiff's Damage

66. The plaintiff claims that this is a simple and easy case that the defendant "decided to complicate by means of artificial equations". In order to clarify the dispute at this stage, I will note that the plaintiff claims that a simple calculation should be made for the purpose of determining the damage, which is to subtract the amount of the monthly expenses from the fixed payment to which she is entitled each month (ILS 140,000 including VAT).  The defendant, on the other hand, submitted an expert opinion on her behalf who examined the profit and loss report for 2017 that the plaintiff submitted to the Income Tax Authority (hereinafter - the 2017 report) and found that it reflected a loss, and in accordance with the calculation method he detailed, he expressed his opinion that the plaintiff was expected to lose money for the rest of the years of the contract as well.
67. The plaintiff claims that the 2017 report is not at all relevant to the calculation of the profit rate from the contract, due to the fact that this is the first year of its activity, in which revenues and expenses were mixed with the second company - M.S.I. Engineering, and that the expected profit should be determined, as aforesaid, by calculating the (fixed) income minus the customary expenses for this field and "the cost of operating the trucks and the cost of the employees' wages" (paragraph 62 of the summaries), which are reflected in expenses for diesel, toll roads, and two employees for each truck - a driver and an assistant.  It is claimed that "there are additional expenses, but they are trivial."
68. I will preface by saying that I am inclined to agree with the plaintiff. This is a relatively simple and clear contract in which there is a fixed minimum income each month.  The rate of expenses (acceptable and reasonable) for the purpose of fulfilling the plaintiff's obligation under the contract can be proven relatively easily, so that the profit rate can be obtained by subtracting the amount of expenses from the consideration.  It also appears that this is expected damage, since the purpose of the contract was to generate profit, all the more so against the background of the past years and the relationship between the parties.  However, I will note that while the amount of income remains fixed for all the years of the contract (and there is no linkage mechanism), it is clear that a possible increase in the cost components as well as "unforeseen" expenses must be taken into account, to the extent that there is proof of reasonable certainty (for more information, see: Gabriela Shalev, Yehuda Adar, Contract Law - Remedies (2009), at pp.  442 ff.).
69. On the other hand, it appears that CPA Mor's examination of the 2017 report did not distinguish between the expected profit rate from the contract and the plaintiff's overall profitability as a business entity. Indeed, if all of the plaintiff's activity is for the purpose of fulfilling the contract, there may be a parallel between the two calculations, but this is not required (and although no evidence was brought on the subject by the plaintiff, I am of the opinion that this assumption can be deduced).  In any case, I am not required to decide between the parties' positions as to the correct method of calculation in this case, and therefore I will not elaborate on the matter.  The reason for this is that even if I accept the plaintiff's position regarding the correct method of calculation and ignore the fact that she herself reported losses to the tax authorities in 2017, then she was unable to prove the extent of the damage caused to her.  I will explain my conclusion below.
70. The only evidence provided by the plaintiff as to the amount of expenses required for the operation of the transportation system was a letter from CPA Jabareen, in which the expenses were detailed. The parties disagree as to the admissibility of this document, and at least as to its weight and the ability to base the claim on it.  The defendant claims that this is a "letter" that is not an opinion and that the plaintiff did not bring any concrete evidence to support her claim regarding the extent of the damage, let alone one that could serve as a counterweight to CPA Mor's opinion.  The plaintiff claims that this is her accountant who "calculated for her the loss of her profits as a result of the termination of the engagement with her client" and since he did so "by virtue of his position as the company's accountant", he can serve as evidence of the veracity of its contents, as it was delivered "in the framework of the ordinary business" of the litigant.  I cannot accept this argument.
71. Indeed, it is possible to prove the acceptable and reasonable expenses for the purpose of executing such a contract by means of a person who is familiar with the facts "on the ground", i.e., the plaintiff's financier or anyone who is familiar with the relevant facts and can testify about them and present evidence on the matter. I do not see the need to decide this question, i.e., to determine whether this is sufficient, or whether there was a need for an expert opinion that receives the facts from the plaintiff and gives his professional opinion on the matter; see on the subject: Civil Appeal Authority 8052/12 Amiad Water Systems Ltd.    T.S.  T Synergy Ltd.  [Nevo] (November 6,2012), para.  3).  I also do not address the question of whether CPA Jabareen, who is the plaintiff's accountant who submitted an audited report for her, is personally familiar with the expenses required to fulfill the contract, since even if I assume that the answer is positive and that the facts he detailed in his letter are sufficient, he did not testify at trial, so that the words cannot be used as evidence of the truth of the content, since in this state of affairs what is stated in the letter is hearsay testimony (see Mini-Many: Civil Appeal Authority 8597/21 David Yaakov v.  Lavib Nabwani [Nevo] (February 21,2022), para.  16).
72. This could have been concluded, but in this case a certain complication was created due to the misleading manner in which the plaintiff presented the letter of CPA Jabareen, and therefore the matter requires further clarification.
73. The court (in a previous case) ordered the submission of evidence by way of affidavits (decision of December 6,2023). CPA Jabareen's letter was attached to Younes' affidavit and was referred to as an opinion (P/11).  In addition, in the notice accompanying the filing of the affidavits, the plaintiff requested to summon a number of witnesses, including CPA Jabareen, "who prepared an opinion on her behalf, which is attached as exhibited on behalf of the plaintiff" (paragraph 5 of the notice of January 31,2024).  Subsequently, the case was transferred to my hearing (on April 20,2025), and on May 4,2025, I ordered that CPA Jabareen be summoned as requested for a hearing on October 28,2025.  At the beginning of the hearing, the defendant's counsel argued that it was not an opinion, in light of the fact that it was not drafted as an opinion from a formal and substantive point of view.  The plaintiff's counsel replied that "this is not an opinion, " but rather "a document that was defined as a document that calculated economic damages in the cancellation of a contract...  My colleague asked to investigate it, I did not invite him, if my colleague does not want to interrogate him, he has the right to do so.  The document, its weight, its status, will be decided in the judgment...  I agree that it is not drafted as an opinion, but it is the company's accountant and he is a signatory to the company's balance sheets." The defendant's counsel replied, "Now I understand that this is not an opinion that will be recorded.  Since there is no opinion and no affidavit, I don't need it here."
74. Against the background of the defendant's objection, this decision was given during the hearing:

"In light of the plaintiff's attorney's position, according to which this is not an opinion or even an affidavit, this will be the reference to this document, which should be considered as part of the plaintiff's manager's affidavit and the documents he submitted, including the company's financial statements.  I also wrote before me that there is no desire to testify and question the accountant with these data."

75. I have elaborated on the description of the sequence of events, since it seems that the situation (somewhat unusual) was caused by the manner in which CPA Jabareen's letter was crowned. As stated, the plaintiff declared upon submission that it was an opinion and even asked to summon the accountant "who prepared an opinion on her behalf".  For this reason, I ordered that he be summoned, otherwise he would not have been invited to testify at all.  As stated, a decision was made to submit the evidence in affidavits, and when CPA Jabareen did not submit an affidavit or opinion, he should not have been summoned to testify in the first place.  I will note that at the meeting on October 28,2025, counsel for the plaintiff argued that he was not the one who summoned the accountant, but this is not true, and he was the one who requested that he be summoned to testify, and his request was granted.  It is possible that in a conversation between the attorneys prior to the hearing, the defendant's counsel requested that the accountant appear for questioning, believing that he was the person who submitted an opinion (since this is what the document was referred to in the plaintiff's notice), but from a formal (and practical perspective) the witness was summoned at the plaintiff's request.  I will also note that insofar as it was indeed an expert opinion, the plaintiff was obligated to summon him for questioning in court anyway, unless the defendant had waived it (Regulation 87(h) of the Civil Procedure Regulations, 5779-2018; hereinafter - the Civil Procedure Regulations).
76. Indeed, the defendant's counsel noticed that this was not an opinion only at the beginning of the meeting, and in light of this, he noted that he did not need CPA Jabareen and did not intend to interrogate him. However, the defendant's counsel's conduct does not change the nature of the document.  It should be noted that the plaintiff agrees that this is not an opinion (and indeed it is not an opinion) and therefore the obvious conclusion is that this is a damage calculation made by the plaintiff's accountant, who did not testify about it, and therefore it cannot serve as evidence of the truthfulness of its contents.  At most, the document should be viewed as evidence that it was given to the plaintiff, but not as to the veracity of its contents.  I also noted this in my decision of October 28,2025, when I instructed that: "In light of the plaintiff's attorney's position, according to which this is not an opinion or even an affidavit, this will be the reference to this document, which should be considered as part of the plaintiff's manager's affidavit and the documents he submitted, including the company's financial  I also noted before me that there is no desire to testify and question the accountant with these data" (emphasis not in the original - 19).
77. I will emphasize that I do not accept the argument that this letter is admissible to prove its content because it was prepared "in the ordinary course of the company's business". First, the plaintiff did not clarify why a document prepared "in the ordinary course of the company's business" is admissible to prove the veracity of its content without its editor testifying, i.e., why it enjoys a "presumption of credibility" that allows it to be accepted without the testimony of its editor.  More than necessary, I will note that it is clear that this is not an institutional record, and it was not even claimed to be so (see the requirements on the subject in section 36 of the Evidence Ordinance [New Version], 5731-1971; Yaniv Vaki, Laws of Evidence (Vol.  2,2020), at p.  1237).  Moreover, from a factual point of view, this is a non-disputed document that was prepared for the purpose of filing the lawsuit, so that the claim that it was made "in the ordinary course of the company's business" is not free from doubt.
78. The plaintiff sought to see CPA Jabareen's letter as evidence of the veracity of its content, also because CPA Mor referred to this letter in his opinion and even attached it. I cannot accept this argument.  The fact that the defendant's expert referred to this letter does not qualify it as evidence of the veracity of the content, and the plaintiff did not explain at all why it should be determined.  The amount of expenses for the purpose of performing the contract is a factual figure that must be proven by admissible and reliable evidence, and CPA Mor had no personal knowledge of the veracity of the expenses stated in CPA Jabareen's letter (nor even if there are other essential expenses that were not mentioned in it), and therefore his reference to it cannot qualify it as evidence of the veracity of the content.  Moreover, CPA Mor's attitude to this document is negative and was expressed in the fact that he claimed that CPA Jabareen's opinion (at this stage the letter was mistakenly referred to as an opinion) is not independent as required by the CPA Regulations, since it is the plaintiff's accountant.  CPA Mor also emphasized that it was the author of the letter who also prepared the 2017 report, which is inconsistent with what was stated in his letter.  Therefore, it certainly cannot be said that such a reference qualified the content of the letter to be used as evidence.
79. The document is therefore inadmissible to prove the veracity of its contents. It is possible that the situation that arose surprised the plaintiff's counsel, but it must be remembered that it was the plaintiff who created the fault when she crowned the document as an opinion when it was clear that it was not an opinion, and this is even according to her opinion.  Had it not been done so, the accountant would not have been invited to testify at all (since he did not submit an affidavit or opinion) and the defendant should not have "waived" his interrogation.  In this situation, the document would have been submitted in advance as an appendix to Younes' affidavit and could therefore have been used as evidence of the veracity of its contents, but rather that it was accepted by him alone.
80. Moreover, when the defendant's position became clear, the plaintiff could have asked CPA Jabareen to testify orally on the letter or to submit an affidavit on his behalf (as stated, without me addressing the question of the possibility of testifying or submitting an affidavit on the subject under the submission of a professional opinion). She could also have requested that an expert opinion be submitted on her behalf despite the delay.  She did not ask for anything on the matter and must bear the consequences of her conduct at the beginning and at the end.  It is clear that even if the plaintiff had sought to correct her mistake, it is possible that the court would not have granted the request, but I noted this in order to show that the plaintiff made a mistake in her conduct (when she did not submit an affidavit or an opinion on behalf of CPA Jabareen) and did not make any attempt to correct it when things became clear.
81. It should be noted here that I did not ignore the fact that the defendant did not explicitly claim that the document was inadmissible for proving the content, but its intention was clear. First, the status of the document was already in dispute at the time of the hearing, and the plaintiff's own counsel claimed that "its weight, its status, will be determined in the judgment." Second, the status of the letter was in fact already decided in my decision at the meeting of October 28,2025, when I determined that in accordance with the plaintiff's position, it would be treated as a document attached to her administrative affidavit, that is, as one that is inadmissible to prove the truthfulness of its contents, but rather to the fact that it was delivered to the plaintiff.  Third, the defendant argued in its summaries that this was not an opinion but rather a "letter" that could not establish proof of damage and serve as a counterweight to the opinion on its behalf, and it is clear that this does not agree with its evidentiary value.
82. In conclusion. The accountant's letter cannot serve as evidence of the veracity of its contents.  Otherwise, the plaintiff did not submit any evidence to prove the amount of the monthly expenses required for the purpose of executing the contract.  I will note that the plaintiff did not claim that the documents attached to CPA Gabarin's letter should be considered admissible evidence in and of themselves, and indeed these are documents prepared by CPA Gabarin in which he detailed the expenses for items such as maintenance of diesel vehicles; excise duty; wages of employees and related vehicles; Highway 6; Communications, insurance, etc.  This is a factual argument that was required to be proved with admissible evidence, and it is possible even in the combination of the raw evidence (if only in order to enable the other party to check the veracity of the data), and when this was not done, it is clear that even these documents are not admissible as evidence of the veracity of their content.
83. In order to complete the picture on this subject, I will note that Younes did not testify about the amount of expenses from personal knowledge, but rather based on Roeh Jabareen's letter, so that it is not possible to "qualify" this evidence through him, and the plaintiff did not make such a claim at all in her summaries.
84. Even if I made a mistake and the letter passes the admissibility tests, then it is not possible to give confidence in our contents, all the more so to such an extent that it is possible to determine the rate of expenses on its basis alone, with reasonable certainty, as required by case law.  Even if I assume that this is an objective witness (despite the fact that he serves as the company's accountant and provides it with paid services on a regular basis), then this is the person who prepared the 2017 report, which on the face of it is inconsistent with what is stated in the letter.  CPA Gavrin did not bother to address these discrepancies in his letter and explain them, and this, of course, impairs the ability to trust things.  Indeed, it is possible that there are logical explanations for these discrepancies (see the above in section 69), but the main thing is that CPA Jabareen produced two documents that do not necessarily correspond to each other, while the other document enjoys evidentiary preference over the matter since it is an audited report submitted to the tax authorities (for the duties imposed on the accountant when preparing a profit and loss account and auditing, see: CPA Regulations (Method of Operation of an Accountant), 5733-1973).  As may be recalled, CPA Jabareen did not testify, and therefore it was not possible to get an impression of his reliability, and especially of his answers regarding the discrepancies between the calculation in the letter and what was stated in the 2017 report.  In many respects, this is a reinforcement and confirmation of the conditions of admissibility, since one who did not testify about things he wrote outside the court, his words are inadmissible because they cannot be verified (and therefore they are hearsay testimony) and therefore cannot enjoy weight that allows us to rely on them (and all the more so on them only) for the purpose of making a decision.
85. The plaintiff therefore did not submit evidence on which a conclusion can be based as to the extent of the damage. However, she argued in her summaries that she could also rely on the opinion of CPA Malul, which was attached to the defendant's statement of defense, and to prove her damages by means of it.  This argument should not be accepted.
86. This is an opinion that was not submitted as evidence, but was attached only to the statement of defense (later the defendant submitted another opinion - by CPA Mor). As stated above, the court ordered that the parties' evidence be submitted in affidavits, so that if the plaintiff had requested to submit the opinion that was attached to the defendant's statement of defense as evidence on her behalf, she should have done so when submitting her evidence (Regulation 87(e) and 87(h) of the Civil Procedure Regulations; Civil Appeal Authority 8534/16 Helfon Communications and Consulting 2003 Ltd.    Shafik Sfori [Nevo] (January 29,2017); Civil Appeal Authority 3863/15 Levi Yitzhak Rahmani Liberty Mutual Insurance Europe Limited [Nevo] (November 9,2015)).
87. The plaintiff did not do so and did not submit the opinion with her evidence. Nor did she announce in advance that she intended to do so, nor did she summon the expert (CPA Malul) for questioning (Regulation 87(h) of the Civil Procedure Regulations).  However, she asked to submit the opinion surprisingly during the interrogation of the defendant's manager, while her counsel noted that "I can submit a document through the person who received it." When asked what the document was submitted for, he replied, "Not now for this purpose, I asked to mark it" (transcript of the meeting of December 9,2025, at p.  23, at paras.  9-13).  Counsel objected to the submission of the opinion (p.  23 of the transcript of the meeting on December 9,2025) and therefore I decided on this issue after hearing the arguments of the parties as follows:

"In order to submit a document, when there is an objection, it is necessary to pass the admissibility tests.  In this case, it is a document that was prepared by someone who is not a witness in the trial, and therefore it is clear that it cannot be accepted as evidence of the truth of its contents.  However, there is no impediment to accepting the document as evidence that it was ordered by the defendant and accepted by her, and was even submitted to the court file together with the statement of defense."

88. Thus, a decision on the matter was already given during the hearing, according to which the opinion was not accepted as evidence of the veracity of its content, but rather that the document was ordered by the defendant and attached to her statement of defense (this last fact does not require proof, since it is a document in the file). Therefore, it is clear that the plaintiff cannot base the proof of her damages on this document.  In any case, as noted above, the plaintiff did not submit the opinion through the expert and did not take care to summon him for questioning, and as is well known, "the rule is that an opinion (like an affidavit of a main witness) is submitted as a substitute for a main testimony, as prima facie evidence of what is stated therein, and all subject to the right of cross-examination of the author of the document.  Without investigation, what is stated in the opinion is considered hearsay testimony, insofar as the veracity of its content is concerned" (Civil Appeal Authority 3810/12 The Israeli Phoenix Insurance Company Ltd.    the late Meir Yehezkel [Nevo] (July 8,2012)).  The plaintiff therefore cannot base her proof of damages on the opinion of CPA Malul.
89. A summary of the picture of the evidence shows that there is no evidence from which it is possible to learn about the extent of the damage, and more specifically about the correct rate of expenses for the purpose of fulfilling the plaintiff's obligations under the contract (since the amount of income is known and fixed). In any event, there is no evidence that is sufficiently reliable on the basis of which it is possible to establish a clear factual finding on the matter.
90. This result is difficult in my opinion. The parties worked together for about four years under an identical contract (and even for a lower sum - ILS 130,000) and it can therefore be assumed that the plaintiff was satisfied with the terms of the contract, otherwise she would not have continued the engagement and certainly would not have sought to receive a contract for a long period without the ability to exit.  The starting assumption is therefore that this is a profitable contract that would have been economically worthwhile for the plaintiff (and this conclusion is acceptable to me despite what was stated in the 2017 report, and this is for the reasons detailed above).  However, a plaintiff is supposed to prove his claim with evidence, and when he claims damage in the form of loss of profit under a contract, he must prove it clearly (with a reasonable level of certainty), and the plaintiff did not do so.
91. Against the background of the fact that I accept that this was a contract that would have yielded some monthly profit for the plaintiff, I considered her alternative request to award compensation by way of estimate, but I thought it would be wrong to do so. I will reason.
92. As is well known, the rule is that " a plaintiff for compensation for breach of contract has the burden of proving both the existence of the damage and the extent of it... However, the case law emphasized that the degree of certainty and accuracy required of the plaintiff in this matter is not at the level of absolute accuracy, but is sufficient to prove his damage and the compensation to which he is entitled with a reasonable degree of certainty, which is required by the circumstances of the case" (Civil Appeal 1094/23 Herman Cooper v.  Israel Land Authority [Nevo] (October 9,2024); Civil Appeal 355/80 Anisimov Ltd.    Tirat Bat Sheva Hotel Ltd., IsrSC 35(2) 800 (1981).
93. For this purpose, the injured party is "obligated to prove the factual data from which it is possible to deduce the extent of the damage caused to him, and consequently the amount of compensation to which he is entitled. Accordingly, in cases where the injured party fails to prove his damage, he is not entitled to compensation...  An exception to the aforesaid rule exists in those situations where, in light of the nature and nature of the damage, the existence of which has been proven by the injured party, it is not possible to bring accurate data as to its scope.  In these cases, where there is an objective difficulty in accurately proving the extent of the damage caused, it was ruled that this will not fail the victim's claim" (Civil Appeal 6277/19   Sanford Asher Herman v.  Adv. Arie Weiss [Nevo] (March 15,2022; hereinafter - the Herman case; my emphasis - 19).
94. On the other hand, in cases where the plaintiff did not have any objective difficulty in bringing evidence as to the extent of the damage caused to him (even if only approximately), the case law states that there is no justification for a ruling by way of an estimate (see, for example, Civil Appeals Authority 3608/17 Hanson (Israel) Ltd.   Al-Sayed Safaline [Nevo] (September 10,2017); the Herman case, para.  38).
95. In our case, there was no impediment to presenting a clear evidentiary basis regarding the damage caused to the plaintiff, and counsel for the plaintiff himself argued that this was a "simple and easy calculation". In fact, the factual basis that was required was similar to that presented in CPA Jabareen's letter (subject to, of course, an examination of the weight of the alleged facts, to the extent that they would have passed the admissibility test).  However, the plaintiff's failure was not in locating the evidence (which is in her possession, of course), but in the manner in which she chose to bring it before the court.  Indeed, even if all the relevant evidence had been presented, it is reasonable to assume that the parties would have disagreed as to the correctness of the numbers and the existence of additional expenses that should be taken into account for the purpose of calculating the expected profit from the contract, which were not mentioned in CPA Jabareen's letter.  However, in this situation, the evidence was before the court and it was possible to decide between the opposing positions.  Our matter is different, since there is no evidentiary basis (even minimal) on the basis of which these questions can be discussed, even though it exists in the hands of the plaintiff and she could have easily presented it.  In this situation, it is clear that there is no room to award compensation by way of an estimate that will only be an assessment (and perhaps a guess) by the court without any evidentiary basis, but rather it must be determined that the plaintiff did not prove her claim.  The end of the matter is in the first thought.  See:

"In situations where the nature and nature of the damage makes it possible to prove it by means of accurate data, a plaintiff who has not been able to bear the burden will not be entitled to compensation 'despite the feeling of discomfort' of being left empty-handed."