However, I am of the opinion that when the receipt is given by a third party to someone who is also the owner and manager, it is important to identify the cases in which there is justification for applying possession (for the reason that it is a payment "Wage Replacement"), which coincides to a large extent with the questions examined in the framework of the examination on its merits regarding the classification of the receipt. Therefore, it appears that "Geometric Location" What is appropriate for this examination is in the framework of the discussion of the classification of the receipt on the merits of the matter and not in the decision as to the applicability of the presumption. Subsequently, I am of the opinion that even on the practical level, in view of the aforesaid overlap, there is little relevance to the determination that there is applicability in cases appropriate to the said presumption even when the receipt was not given by the employer. Therefore, I prefer to leave this question for consideration.
Therefore, I will assume in favor of the appellants that in the present case there is no application to the presumption established in the matter BarneaI will move on to examine the receipt that Kahane received on its merits, not under any presumption.
- II. Should the receipt received by Kahane be classified as capital or fruitful income?
- As noted above, with respect to the question in the heading, the District Court ruled that the receipt given to Kahane should be classified as a fruitful receipt. I am of the opinion that there is no room to intervene in this determination.
- As noted above, the question that is at the center of the discussion at this stage is what is the "loophole" that the receipt that Kahane came to fill. If the receipt comes to fill a "loophole" that concerns capital income, the receipt will be classified as capital income, and if the receipt comes to fill a "loophole" that concerns fruitful income, the receipt will also be classified as fruit income.
I will preface by noting that in the matter Barnea It was held that, as a rule, "The breach" Receipt in respect of a non-compete clause that is intended to be fulfilled is the wage to which the employee will not be entitled in light of his obligation not to compete, and therefore, as a rule, this income will be classified as fruitful income in the theory of wages (עניין Barnea, Paragraphs 45-44 To the judge's judgment J' Associate). However, as has already been emphasized above, in our case the receipt that Kahane received was not received from the employer (the Eisenberg company), but from a third party (the purchasing company), and therefore "The breach" The receipt that comes to be filled is not the employer's wages. At the same time, it is clear that this does not mean that the receipt before us is a capital receipt, since, as determined in case law, non-compete payments that were not given by the employer can also be considered fruitful income: