Before I examine on its merits the question of whether there was a real need for a non-compete agreement with Kahane, I would like to remove out of the way the appellants' argument that this determination of the District Court is inconsistent with its statements during the hearing before it. This is because in the hearing before it, the court confronted the respondent with the argument that in the absence of the non-compete agreement, Kahane could have competed with the purchasing company.
As the respondent rightly noted, the court's questions and statements during the hearing were intended for the purpose of clarifying the dispute only, and therefore there is no basis for the argument that there is any difficulty in the fact that the court's determinations in the judgment are inconsistent with various statements made by it during the hearings before it. Thus, it was held in the case law of this court that:
"The courts speak through decisions and judgments, and only through them. The comments of a judge (or judge) that are recorded in the minutes of the hearingare part of the alternate statements that are intended to advance the clarification of the matter that was brought to the judge's decision, and they should not be considered part of the judgment or the decision.
To this, I will add that accepting the position of the respondent's counsel will create a very significant chilling effect on the dialogue that a judge conducts with the lawyers who appear before him in order to promote and streamline the legal process, and often, in order to reach an agreed solution to the dispute. If every statement made by a judge in relation to the proceeding that is being conducted before him, together with all the exchanges between the judge and the lawyers, serve as a basis for providing interpretation and meaning to his decisions and judgment, the judge is liable to refrain from saying what he has to say in order to advance the clarification of the proceeding and to reach agreements. It is clear that we must prevent this result and the harm to the legal process that derives from it" (Miscellaneous Applications Criminal 6210/22 State of Israel v. Anonymous, paragraphs 32-33 (September 18,2022); See also: Civil Appeals Authority 1883/23 Vision Group A. S. Entrepreneurship Ltd. v. Carmeli, para. 41 (May 10,2023)).
- On the merits of the matter, I do not share the conclusion of the District Court regarding the absence of the need for a non-compete agreement between Kahane and the acquiring company. I will elaborate.
When we come to examine whether there was a real need for a non-compete agreement with Kahane, we must indeed consider the question of what would have been the situation had it not been for Kahane's commitment to this agreement.