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Shabbat Parashat Tazria Metzora 5773

P'ninat Mishpat: An Agent Who Did Not Make a Client Sign a Contract

(from Hemdat Mishpat, rulings of the Eretz Hemdah-Gazit Rabbinical Courts)

Case: The defendants (=def) called the plaintiff (=pl), a real estate agent, to help them find office space to rent. Pl took def to an office, which they agreed to rent after a few days, without having them sign an agent’s contract or discuss the agent’s fee. Pl did not get involved in negotiations for the rental contract and explained that the landlord told him that matters were moving along smoothly. Pl is asking one month’s rent from def (5,000 shekels), as, they claim, is standard and as he received from the landlord. Def claim that since pl did not discuss the agent’s fee and was receiving pay from the landlord, they thought that they were not expected to pay pl. They point out that according to Israeli law, if a client is not signed on an agent’s contract, he does not have to pay, and the fact that he did not have them sign indicates that they were not expected to pay. They add that had they known they would have to pay an agent’s fee, they would have negotiated the rental agreement differently.

 

Ruling: Def’s claim that they did not think they were expected to pay is not a credible claim. Everyone knows or should know that when one calls the office of a professional agent and asks for and receives his help, he is expected to pay. There is no question that if they would have been asked to sign, they would have. Pl’s claim that he forgot to have them sign is much more plausible. It is possible that def thought that since pl failed to have them sign they could not be forced to pay, but not that they thought that pl did not expect to be paid.

The question is whether pl is entitled to payment when the law is that they are entitled only if the client signed. Def referred to an article in Techumin 31, in which our Av Beit Din, Rav Yosef Carmel, gave the halachic basis for accepting the law of the land, including that of the law in question. However, a major source for that thesis is the Chatam Sofer (V, Choshen Mishpat 44) who says that laws that the Rabbis would institute if they had the authority are binding.

In the case of the law requiring the client to sign, one must distinguish between cases. Rav Carmel’s p’sak refers to a case where the agent who suggested an apartment was a neighbor of the buyer, and he never indicated that he was giving the information as an agent. In that case, the law is logical, as it prevents disputes arising from one who is not clearly acting as an agent, from retroactively demanding pay from an unsuspecting “client.” However, in our case, def sought out pl specifically because they knew he is a professional agent and so used him. In such a case, there is no logic to withhold a professional’s pay because he, for whatever reason, neglected to have the party sign.

Regarding the amount of the payment, while paying a month’s rent is a normal fee, it was never agreed upon. When an agent raises explicitly his fees in advance, there are often negotiations on them. It is not right for pl to not raise the issue of the fee and then decide on his own on the amount. Therefore, we will reduce 20% from the demanded fee and have def pay pl 4,000 shekels plus V.A.T.

 

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