Shabbat Parashat Bo 5780

P'ninat Mishpat: Realtor’s Fee

Case: Def2, a couple looking for an apartment, contacted the plaintiff (=pl), a licensed real estate agent. Pl took def2 to see a house with an attached living unit, and then to four, almost complete, expensive (around 3 million shekels) cottages, thinking that def2 and her parents (=def1), who came along, might each buy one. No realtor contracts were signed. The cottages were too expensive, and pl was unsuccessful at lowering the prices. A few months later, def2 called pl, telling her that they were buying two cottages and offering 12,000 shekels as a realtor fee (since the standard realtor fee is 2% plus VAT, the offer was around 10% of the normal). Def2 is only renting a cottage, but they have done serious renovations to it. Pl is demanding a full fee. Def2 argues that they only are now only renting the cottage and should not pay the fee for buying. Def1 argues that they never hired pl but just accompanied their children. The defendants argue that the cottages were in their proximity, so they did not need to have them shown, but just have an agent negotiate a good price, at which pl did not succeed. Def1 is paying the contractor’s agent, who helped with negotiations.       

Ruling: The basis for an obligation to pay for agents’ services without an explicit agreement is the Shut HaRashba (IV:125) regarding someone who worked to bring customers to a store and the idea of working in one’s field with permission, in which the landowner has to pay for the benefit provided.

According to the Law of Agents, payment is due only when the customer signed a contract. We accept this law in cases where the customer was unaware that he was expected to pay, but here the defendants were aware that they were employing professional agents, and they even volunteered to pay (a smaller amount). The fact that pl did not finish the job does not preclude deserving partial pay. We see this concept of partial payment in the Shev Yaakov (13) regarding one who raised a shiduch idea and another brought it to fruition and the Rama (Choshen Mishpat 185:6, based on the Shut Harosh), regarding a real estate agent who could not finish the deal. Rav Shlomo Kluger (ad loc.) limits the payment to agent 1 when he also is paying agent 2 to a case in which the payment to agent 2 was done ingeniously. Not only does it make a lot of halachic sense to not accept Rav Kluger’s limiting of the Rama, but in this case, the fact that def1 and def2 abandoned pl’s services in the middle makes it appear disingenuous.

The defendants have no proof that the first attempt to buy the cottages ran its course and that they “started again from the beginning.” Rav Moshe Feinstein (Igrot Moshe CM I, 49) dismisses the claim that the passage of a significant amount of time is proof of a new deal or that the fact that they saw advertisements elsewhere is significant when they first saw it through an agent. Likewise, def1’s claim that they saw the cottage just to help their children is also hard to substantiate from the fact that they were also in the market and ended up buying it.

Because pl did not finish the deal, she should receive only half of the usual fee, from def right away and from def2 when they finalize their purchase.     

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