Therefore, I reject all of the defendants' arguments in the context of the contribution of Naveh's conduct to the incident of damage.
Does the settlement agreement between Hani and Naveh exempt the defendants from paying damages?
- According to the defendants, as part of the divorce proceeding, Naveh received compensation from Hani for the hacking of the phones, and therefore reached a claims settlement with her that exempted her from compensation despite her part in the affair. In this context, the defendants relied on Article 55 of the Contracts (General Part) Law, 5733-1973 (hereinafter - The Contracts Law), arguing that the exemption of one of the debtors also exempts the other debtors, unless a different intention is implied. Alternatively, the defendants argued that even according to Section 83(b) According to the Torts Ordinance, Naveh cannot be repaid beyond the amount paid in the settlement agreement, which constitutes a "judgment given first". Therefore, the defendants claimed that Naveh was prevented from suing them for compensation for the hacking of the phones and the use of the information derived from them.
On the other hand, Naveh argued that the settlement agreement between him and Hani included a mutual waiver of claims, and was not an "exemption" that exempted the defendants. Naveh emphasized that his waiver of a lawsuit against Hani stemmed from the fact that she was the mother of his children and his desire to avoid harming the family unit, and therefore this was a "personal exemption" for Hani only in its meaning In section 55(c) to the Contracts Law. Naveh further argued that an arrangement with one wrongdoer does not block a claim against another wrongdoer, and that the arrangement with Hani was not intended to repay his damages in full.
- First and foremost, the dispute will be examined in the light of the Section 55(c) of the Contracts Law. The rule is that if "the creditor exempts one of the debtors from the obligation, in whole or in part - by waiver, pardon, compromise or in any other way - the other is also exempted to the same extent, unless the exemption implies a different intention." In this context, Naveh argued that his intention in waiving claims against Hani was not to release the other defendants from their liability. Naveh explained that the waiver stemmed from personal considerations of joint parenthood and concern for the family unit. On the other hand, the defendants argued that Naveh's refusal to present the settlement agreement should act in accordance with his obligation, and that it can be assumed that the purpose of the agreement was to fully repay the tort debt. Naveh's refusal to disclose the document acts in accordance with his obligation and strengthens the rule According to him, this exempts the defendants from their liability to him.
- This dispute raises the question of how it will be determined whether the exemption implies a different intention, as in the words of the Section 55(c) to the Contracts Law. This issue has been examined by other municipal requests 33/00 State of Israel, Customs and VAT Department v. Syria, IsrSC 58(5) 1,8 (2003):
"How is it determined whether the exemption implies a different intention? In the absence of an explicit expression that the exemption is personal, can we assume that the exemption is a general exemption? The answer to this question lies in an examination of the "implied intention" from the exemption. "Implicit intent" testifies to itself that it is not an explicit intention, neither in writing nor orally. It is sufficient that it is implied in the context of the matter. "Implicit intention" is, by its very essence, weak explicit intention and vague from it. The meaning of "implied intention" was discussed by Justice M. Cheshin in a case before him in the context of the "intention of a mitzvah", in order to determine it, an "implied intent" must be traced, when he said: