Shabbat Parashat Naso 5783

P'ninat Mishpat: Agent who Did Not Set Agent’s Fee – part II

Case: The plaintiff (=pl), a real estate agent who specializes in apartments in the Chassidish sector, put an ad in the paper for an apartment (=apt) at 2.4 mil. NIS, and def bought it through her. Pl demands a 2% agent’s fee. Def refuses to pay any fee with various claims. [The claim that is relevant to this part of the ruling is:] Pl is not a licensed agent, did not sign def on an agent’s contract, as required by law, or raise the issue of how much of a fee she expected to receive.

Ruling: [Last week we saw that pl provided an important service for def, who was aware she was an agent, and beit din ruled that she should receive a fee despite not complying with all of the requirements of the law.]

The majority opinion is that pl shall receive a full 2% fee. This is based on the idea that when there is a lack of stipulation, we follow the common practice (Shulchan Aruch, Choshen Mishpat 331:1). Experts in the field confirm that 2% is the standard rate for a buyer to pay. It is true that it is not uncommon to pay less (although this is less common in as popular a market as the area in question), but the practice is that the agent sets the price and if the buyer does not agree, he is to lower it by means of negotiation. As the K’tzot Hachoshen (331:1) says, if a side’s intention is not like the minhag, he should have stipulated.

In this case, we believe def that he did not intend to pay 2%. However, this was not with the assumption that pl would agree (as def unintentionally admitted), but rather def planned to deceive pl. In other words, by waiting to make an issue of the fee until after he signed his purchase contract, def could use his hold on his money as a means of leverage, as he could scare pl that she might not get anything (as he tried to achieve) if she did not agree to his terms. Beit din posits that when the lack of negotiation was in bad faith, the buyer is not to benefit from the fact that sometimes there are negotiations, and def should pay according to the common practice for cases without stipulation.

The dissenting dayan reasoned that since reductions do occur and since pl was wrong for not having a contract (it encourages tax evasion and gives pl an unfair advantage over others), for not signing def to a contract (which would have stated the rate), she must take some responsibility for the lack of agreement. Therefore, def should pay 1.75% rather than 2%.

The majority responded that it appears that pl did not sign people not in order to get an advantage or sneak by a 2% fee without presenting it to the buyer, but because it is standard behavior in their community to trust clients within the community. We also believe that after this experience, pl will start signing people to contracts. If there had been a misunderstanding between the sides, we would agree to lower the fee for the dissenting dayan’s reason, but here def was attempting deceit rather than suffering from a lack of clarity.

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