I have not found any basis to intervene in this factual determination of the District Court, which is capable of tipping the scales with regard to the classification of the receipt that Kahane received in the framework of the non-compete agreement.
- In this context, the appellants further argued that although the duration of the non-competition period is only three years, this period led to the "cutting down of the tree" in view of the characteristics of the electronic microscope market, and in particular the "market cycle". According to the appellants, in the electronic microscope market, the customers purchase new systems only once every few years, and that in this market there is a dependence of the customer on the supplier and his services throughout the period that the customer holds the system. Therefore, according to the appellants, "exit from the market" for a certain period creates fixation for a longer period than the period of non-competition. Therefore, according to the appellants, at the end of the non-competition period there is a real difficulty in returning to the market, and the non-competition agreement should be regarded as "cutting down the tree".
The District Court addressed this argument at length and held, as a factual determination, that the appellants were not able to establish it properly. This determination is acceptable to me. As the District Court noted, no sufficient evidence was brought, in the form of invoices or testimonies of representatives of customers who purchased electronic microscope systems, which could substantiate the "The Claim of Cycles". Therefore, it cannot be said that due to the non-competition stipulation, Kahane refrained from reaping the fruits of his skills in the field even up the road in a way that would have risen to the level of "Cutting off the branch", and unfortunately Kahane was not able to prove otherwise.
- In addition to the above, I am of the opinion that it is possible to point to an additional indication that supports that the non-compete agreement, in the circumstances at hand, should not be regarded as "cutting down the tree": as noted by the District Court, after the parties entered into the non-compete agreement and the activity purchase agreement, Kahane continued to serve in his position at Eisenberg until 2019. During this period, Kahane continued to earn at the same level as he earned prior to these agreements. In other words, the income that Kahane derived from his abilities did not change as a result of the non-compete agreement, and it certainly cannot be said that his ability to generate income from his professional abilities was cut off.
Indeed, it is possible that if he had not entered into the non-compete agreement, Kahane could have made an even greater profit than his human capital, for example, if he had left the Eisenberg company (while selling his shares or depositing them in trust) and established a company that competed with the acquiring company in the field of electron microscopes. However, the question is not whether the non-compete agreement harmed Kahane's income, but whether the non-compete agreement -Competition cut off the source bringing it in so that it will not be able to produce fruits from it at the end of the period of non-competition. I am of the opinion that this question should be answered in the negative - Kahane was not prevented from continuing to generate income from his skills at the end of the non-competition period (and in practice Kahane did so).
- It should be precise, as noted above, in the Barnea case, Justice Y. Amit remarked, more than necessary, that he does not exclude the possibility that there may be exceptional cases in which the "cutting off of the branch" by means of the non-competition clause will be inherently close to "cutting down the tree". In this regard, Justice Amit noted that not every "cutting down of a branch" is the same as uprooting the tree. Thus, when the worker can continue to utilize his skills in a variety of ways, the restriction on a particular occupation ("cutting down a particular branch") should not be regarded as "cutting down the tree". On the other hand, when we are dealing with a professional whose entire occupation is limited to a single channel of action, it is possible that this should be viewed as "a tree with a single dominant branch" whose felling is likened to "cutting down the tree" (Barnea, paragraphs 52-55 of the judgment of Justice Y. Amit). Therefore, according to Justice Y. Amit's view:
"We are not dealing with the employee's ability to earn one wage or another in any occupation, but rather with the employee's ability to find a parallel or close alternative occupation in terms of skills, experience, seniority, education, etc., even if the alternative occupation is not exactly identical in terms of status or wages in the workplace from which he retired" (Barnea, paragraph 55 of the judge's judgmentY. Amit).