Therefore, in order for the receipt received by Kahane in respect of the non-compete agreement to be classified as capital income, the appellants had to be persuaded that this is one of those exceptional cases in which although the period of non-competition is not exceptionally long, the restriction that Kahane agreed to limit himself practically nullifies his ability to grow fruits again after the period of non-competition, so that it is in fact a matter of"Cutting down the tree", or at least in"Pruning the branch" (עניין Barnea, paragraph 55 To the judge's judgment J' Associate).
I am of the opinion that the appellants have not been able to prove that this is indeed the state of affairs in Kahane's case. The trial court held in relation to this that:
"It cannot be said that the appellant's knowledge, experience and connections have faded after three years. The evidence indicates that the appellant was well acquainted with the MA market segment in the field of sales and services, he had close ties with customers and key people in academia in Israel and leading companies, had knowledge and expertise, and took care to maintain and nurture his reputation for several decades. The appellant made a name for himself in his field of practice, he was known and appreciated, and it cannot be said that a period of non-competition of 3 years would cut off these abilities or the knowledge and experience he had accumulated, to the point of not growing again (p. 23, paras. 23-25, p. 24, paras. 11-18).
See the appellant's testimony:
'Electron microscopy is a very small group, there are about 100 instruments in Israel today, in fact it is not, of all kinds and slightly concentrated, in a few dozen laboratories. So there are very few people and everyone is very familiar with each other' (p. 84,22-25)"
(Paragraph 54 of the judgment of the trial court; emphases added - Y. 20).
In other words, in accordance with the District Court's factual determination, at the end of the non-competition period, Kahane remains able to reproduce the fruits of the"Industry" This main thing - He works in the field of electron microscopes.