In the wake of the coronavirus crisis, which led the government to impose a full lockdown that in turn closed the kindergartens, many questions arose that were left unanswered and are already challenging the legal system. Above all, it created a rift between the operators of the kindergartens and the parents — the very people that parents need to trust more than anyone — who suddenly became the other side of the barricade.
The main question at the heart of the dispute during the coronavirus period was whether the parents were supposed to continue paying the monthly payments as usual while their children were outside the frameworks and receiving nothing in return from the kindergarten, or whether the parents should pay an additional sum (and how much) each month so that the kindergarten would not collapse financially.
And so, at the end of the lockdown and the reopening of the kindergartens, many parents found themselves dealing with an even more complex situation, in which they were asked by the kindergarten to sign a new addendum to the contract, usually against their will. If they did not comply with the kindergarten’s demand, the parents and children would find themselves expelled from the kindergarten — and we all know how few options parents have, especially a month before the start of the year.
The addenda drafted by the kindergartens were creative and varied, and their purpose was one: to make the parents bear the financial burden caused to the kindergarten as a result of the coronavirus pandemic. What is even more troubling is the demand that parents hedge the kindergarten’s risks in future cases, when the state imposes another lockdown, or when the kindergarten or a staff member is required to enter quarantine and, as a result, the kindergarten’s activity is suspended until the end of that quarantine period.
Is the Contract Addendum Even Legal?
It should be remembered that the private kindergartens were supposed to receive a grant from the state of hundreds of shekels and up to NIS 1,200 for each child attending the kindergarten, as well as a three-month exemption from municipal property tax and compensation for the drop in revenues (available to small businesses).
True, it is important to stress that the moment the parents registered at the kindergarten, received a contract of engagement containing all the commercial terms, and agreed and signed the contract — a binding agreement was concluded between the parties. At that point, the parents relied on what had been agreed, and each party knew its rights and obligations.
Section 39 of the Contracts Law provides that the parties must perform the contract in a customary manner and in good faith, and it can already be said that each case is examined on its own merits. If a party to a contract acts with cunning, trickery, and by thwarting the opposing party, this can certainly be regarded as a lack of good faith.
Returning to the matter at hand, sending the addendum to the parents and demanding that they sign it while imposing additional charges and/or even reducing the consideration the kindergarten undertook to provide, while requiring the parents to continue paying the kindergarten as usual, may be interpreted as a lack of good faith that exploits the distress of the opposing party (the parents), since the parents were left with no other choice — arguably giving rise to a cause of action for lack of good faith.
At the start of the engagement between the parties, before signing the contract, the parents could have planned their steps and known in advance what they were signing. Now, after the child has been admitted to the kindergarten, has found their friends, and knows and recognizes the teacher and assistants, the parents have no genuine choice, and no parent will move their child to an alternative kindergarten with different children and staff merely for a financial consideration.
Therefore, sending an addendum to an existing contract without allowing the parents to negotiate the terms rises to the level of a lack of good faith. The solution the kindergartens arrived at was indeed an easy and convenient one for them, but in the long run it can certainly be said that this action harmed the relationship of trust between the parties, and it is not unlikely that in the future parents will not so readily sign contracts without an attorney reviewing them.
What Is the Proposed Solution?
In my view, the kindergartens should have approached the parents both collectively and individually and asked — with an emphasis on a request rather than a demand — for them to show understanding and to examine together what fair arrangement could be reached, without pushing the parents into a corner, in order to weather the crisis during this complex period.
If a parent does not wish to bear additional payments, or is even unable to due to financial hardship, the kindergarten should have “bitten its lip” and honored the contract concluded between them in advance, waited until the end of the school year, and not sent an addendum that contradicts the contract’s provisions.
The kindergartens do not agree? Parents, you need to band together and negotiate with the kindergarten owners; but more than that, this is the time to turn to the legislators. The Knesset should enact a law that regulates what kindergartens may and may not request in a contract. It is time for a standard-form contract issued by the state, so that parents will stop being hostages of the private educational frameworks. True, the staff at the kindergarten are devoted and do wonderful work with the children, but it must not be forgotten that the parents are consumers, not business partners.
