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Shabbat Parashat Vaeira 5774

P'ninat Mishpat: Realtor With a Delayed Demand of a Fee

(condensed from Yabia Omer VIII, Choshen Mishpat 3)

[Editors note: This is the tenth and final installment of our series on the work of Rav Ovadia Yosef zt”l as a dayan. Although the nature of rabbinic scholarship and leadership is such that there is not always agreement, we cherish the countless examples and many elements of Rav Ovadia’s style of p’sak that serve as a light to our own path. Prominent among his major identifying marks, as a dayan and in general, were the great concern for the human needs of the subject of his ruling and the critical importance of overturning every stone in search of responsible leniency.]

 

Case: The plaintiff (=pl) helped the defendant (=def), a tzedaka organization, sell two properties. Pl is asking for a percentage of the sales prices, as is standard. Def is willing to (and did) pay only according to the number of hours of work that pl put into her work. Def claims that since pl never discussed payment and then did not ask for payment right away (after def asked her how much she should get, she said she would ask experts), she was mochelet (relinquished rights to) any specific fee.

 

Ruling: Maharash Engel (Shut III:15) proves that an agent is entitled to normal payment unless he explicitly said he is waiving those rights. This is in line with the normal rule (Rama, Choshen Mishpat 264:4) that we do not assume that people provide services which have fees for free.

The Zechor L’Avraham (III, CM, “Sachar”) was unsure if one did a service and then did not promptly ask for payment whether we assume that he was mochel. The Zechor L’Avraham suggested that the plaintiff would have to accept a cherem to confirm that he did it with the intention to receive payment. However, that seems to be the case only because of a factor that the Zechor L’Avraham mentioned – most people in his place would do the service for free. In a place where the minhag is to pay, it is no worse than one who does work on his friend’s field without the latter’s knowledge, where he gets paid according to the value he provided (Bava Metzia 101a). If the owner implied that that he would be happy that the work be done, he receives a high level of pay. The Gra (CM 185:13) says that this concept is the basis for an agent’s rights to a fee despite not discussing the details. In our case, def gave pl keys to the premises and put out an advertisement stating that those interested in buying should call pl, and she was active in working on the matter.

In a case of a definite obligation, the Zechor L’Avraham will agree that the lack of an immediate claim does not create an assumption of mechilla. It is true that there is precedent that not making a claim for a long time indicates mechilla (Ketubot 104a, regarding a woman who did not ask for her ketuba for 25 years, while being supported). However, there are ample sources that this is the exception to the rule, and that this applies only when it is clear that there was mechilla (see Maharit II:49). Otherwise, we apply the normal rule that matters that remain in the heart of a person are not binding – in other words, even if she would have intended not to have claim the money, pl still would not have lost her rights.

Therefore, def must pay pl the entire amount of the claim.
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