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Shabbat Parashat Matot Masei 5783

P'ninat Mishpat: Realtor Fee Without a Contract part II

Case: The plaintiff (=pl) is an agent who operated on behalf of the defendants (=def) in two acquisitions, six months apart. Def and pl are hard of hearing, which has a bearing on the case. Pl had def sign a standard agent’s contract, but it was void of all the pertinent details, which pl filled in later. Def bought the second apartment for 2,425,000 NIS, and pl demands 2% on that. Def claim that they were not able to see what they were signing and that pl had said that it was a request of a discount for the purchase (pl denies that). Def had paid pl for the previous purchase and claimed that they thought there would be no further charge for the second apartment, which made sense considering they had told pl about the project. Def countersued for return of money from the first deal, in which they had signed two documents, one for assistance in the transaction process (10,000 NIS) and another, a standard 2% agent’s fee to try to sell their previous apartment. Def claim they did not agree to the extra service charge and want the amount they paid returned.


Ruling: [Last time we saw that pl was an effective factor in the transactions and that while def are generally responsible for what they signed, their lack of full understanding will play a role.]

The Law of Real Estate Agents includes a requirement that the client sign a detailed agent’s contract, including details on the property involved, which was missing here. Our beit din recognizes the validity of this law in regard to cases in which it might not have been clear to the client that he would have to pay for the service. This applies to this case, in which, with def’s limitations, it is quite possible they did not understand. Therefore, pl is not entitled to an agent’s fee.

On the other hand, while generally the full amount is due regardless of how much work was needed (a feature of a real estate agent), def should pay pl only for the amount of work he put into it. This is based on the concept of one who did work for someone else, without agreement that he would be doing so. This in turn is based on the Rashba (Shut IV:125), who talks about two reasons to obligate – local minhag and the benefit one provided with his work. He writes both because there are times when one of the factors is missing. In this case, the conditions of the law prevent the minhag from being able to obligate full payment, and therefore there is only room to obligate based on the work and its benefit. Based on the very significant amount of work that pl put into this acquisition, we obligate def 10,000 NIS. According to beit din’s minority opinion, pl should receive a 1% fee, as def should have understood what they were signing. Only because of the slight possibility that they did not, he reduced the fee from 2% to 1%.

We reject def’s claim to have money returned from that which was paid on the first transaction. First, there were two different contracts that were signed, and def should have been aware of the contents of each one and what it obligated. The fact that they already paid strengthens the assumption that they had been aware that they were obligated.

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