Shabbat Parashat R'ei 5778

P'ninat Mishpat: Claims of Various Levels on Payment of Finder’s Fee – Part II

Case: The plaintiff (=pl) introduced investors in real estate to the defendant (=def), who deals in such investments. The agreement between pl and def is that pl gets a finder’s fee of 1.5% of every amount invested based on his introduction. All agree that $240,000 was invested in this manner. Pl claims that he received a finder’s fee on only the first $50,000, and therefore is owed 1.5% * $190,000 = $2,850. Def claimed and proved that the first investment was $100,000, and therefore he certainly paid the fee on that. He remembers clearly paying the fee for the next $100,000 ($1,500). He does not remember paying for the last $40,000 ($600) but assumes that he did so as well. Def promised documentation on almost all of the payments, but did not follow through.

Ruling: [Last time we saw that because def admitted to once owing the $600 and not knowing that he paid, he has to pay it. We saw an apparent contradiction in the Shulchan Aruch on whether that payment is equivalent to a case where one pays based on testimony, with the difference being that it creates an oath of Torah-level on another claim (i.e., the $1,500), which he denies resolutely. We also saw the S’ma’s answer to the apparent contradiction.]

  The Shach (Choshen Mishpat 75:19) says that the rule is that when beit din makes the defendant pay partially, it is like an obligation based on testimony and creates a Torah-level oath. However, the Shach says that this is only when beit din rules based on a conviction that he owes money. In our case of paying because the person was not sure if he paid, it would seem that this is not a ruling based on certainty, and therefore it does not create a Torah-level oath. However, the Shach (CM 87:13), in a case like ours, says that it is considered like an admission on part which creates such an oath.

According to the K’tzot Hachoshen, the Rambam (see the machloket brought last week) never obligates one who denies and is obligated by beit din without testimony. The logic is that if we consider beit din’s ruling that he has to pay part like testimony, then we should treat the ruling that he is exempt on the rest (setting aside whether he needs to swear) like testimony that he is exempt from the rest.

The Even Ha’ezel reasons that while the payment is not like testimony, the defendant’s weak, losing claim which causes him to pay, is considered like an admission, which creates an oath on the rest. It is logical in that one who knows he owes should not be tempted, by an exemption from an oath, to say he is unsure if he paid instead of admitting that he owes the money. The Pitchei Teshuva (CM 70:9) and Netivot Hamishpat (75:4) rule like the Shach.

In summary, all agree that in order to be exempt from the $1,500, def would have to make an oath, but there is a machloket about the oath’s level. In general, payment based on compromise for a Torah-level oath is up to a maximum of two thirds, and for a Rabbinic oath up to a third. The payment is both to compensate for not having to swear and because the oath is a sign of a serious claim.

Beit din is charged to set the amount of compromise based on the particulars of the case. In this case, pl brought no evidence and even backtracked about his confidence that his claims were true. After weighing the indications, def must pay pl $350 out of the claim of $1,500 in addition to $600 about which he was unsure.

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