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Shabbat Parashat Vayeira | 5768

Ask the Rabbi

 Eretz Hemdah’s beit din, Mishpat V’Halacha B’Yisrael, held a din Torah on the matter discussed below. After deliberation, the panel decided that justice and peace would be best served if the sides would agree to a compromise, which they did to the satisfaction of all. The litigants requested us to render a “what would have been” ruling for their intellectual curiosity. We have decided that, instead of writing a detailed, formal p’sak of three dayanim, we would outline one dayan’s opinion on the matter in our Ask the Rabbi format, which we will now share with the the public as well).
Question: The defendant (=def) was looking to buy two apartments in Israel. The plaintiff (=pl), a real estate agent, showed various apartments to def after the latter signed an agent’s service contract obligating him to pay pl 2% of the sales price if he buys an apartment that she showed him. Pl told def that she regularly gives a discount for people who buy two apartments, whereby one pays only 1.5% for the second one. Def reached a point where he was interested in buying two apartments that pl showed him but told her that he would not buy them if he would have to pay the 2% commission. After def wrote down figures of how much pl stood to gain if she would be flexible regarding commissions on the two apartments, pl agreed to go down to 1.4% for each and faxed at one time two invoices for the fee for each imminent purchase. In the meantime, an engineer uncovered serious flaws in the more expensive apartment, and def bought only one apartment. Pl sent def a bill based on a 2% rate of commission because she had agreed to the special reduction only because of the prospect of a double sale. Def paid only at the rate of 1.4% which appeared in the invoice. The din Torah dealt with the remaining 0.6%.
Answer: It is clear from the litigants’ presentations that the expectation that def would buy both apartments played a decisive role in def’s demand and pl’s agreement to set the commission rate as low as 1.4%. This seems to justify pl’s claim. However, it is also clear that def had succeeded in lowering pl from her standard price, including her standard reduction for a second apartment. Although def had signed a contract that set the commission at 2%, pl apparently viewed his threat not to buy the apartment unless the commission would be lowered as credible. Therefore, had the sides discussed what they would do if only one purchase would occur, it is clear that they would have arrived at a figure between 1.4% and 2%. Thus, justice was served with the compromise.
 Regarding din (formal judgment) it is not possible to just guess at a reasonable rate in this case. Rather, the decision in a case with initial agreements but unclear conclusions must be based on halachic rules. At first glance, pl appears to be muchzeket (have the benefit of the status quo) as def signed a binding agreement that sets the rate at 2%. The invoice that later set the rate for the apartment that was purchased at 1.4% is invalid because it was clearly done under the mistaken assumption that pl would buy two apartments. Thus, we should ostensibly revert to the rate of 2%.
 However, the contract does not create a chazaka (status quo). This is so because the obligation of 2% had not ever existed but only represented a potential obligation of what the commission would have been if def had bought the apartment without having received a reduction. Since he refused to buy the apartment until the agreement of a 2% commission was removed and no other commission beyond 1.4% was set, the burden of proof is on pl if she wants to extract more than that. Thus, according to din, def would pay only 1.4% commission, unless the lower market range for commission on an apartment of its price exceeds 1.4% (see Rama, Choshen Mishpat 332:4 and K’tzot Hachoshen 331:3).
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