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Shabbat Parashat R'ei | 5770

Ask the Rabbi: Paying an acquaintance a full agents fee

Case: The plaintiff (=pl) approached his neighbor, the defendant (=def), with information that acquaintances wanted to buy def’sapartment, which was being rented out. After consultations, def agreed to the sale. Pl, a registered real estate agent, demands a 2% fee from def (he is not demanding of the buyers for personal reasons). He presented himself as a friend, not an agent, and purposely did not raise the issue of a fee so as to not sour the deal. He says that even non-licensed people regularly take a full agent’s fee. While pl believes that def did not expect to pay, he received a service that is worth money to him (to buy a new apartment, he approached agents). Def argues that he never agreed to pay and that, according to law and the practice he knows, one does not pay acquaintances in such a case. He adds that if he knew he would have to pay an agent’s fee, he would not have sold at that price. 
Answer: The Rashba (IV, 125) discusses one who brought customers to a store without discussing payment and says the owner must pay, mentioning two reasons: 1) The societal practice to pay; 2) It is no worse than one who works his friend’s field without permission, who is paid. These represent two conceptual reasons for payment for unauthorized work: 1) practice makes it as if he was authorized; 2) there is a concept of neheneh, that one who provides benefit to another naturally deserves payment unless the benefit provider intended to do so as a favor. The Gra (Choshen Mishpat 185:13) stresses the second reason.
In a few places, the Rama obligates the recipient when a favor is provided without previous discussion, but regarding one who was invited to live at his friend’s home, he does not allow the friend to demand rent retroactively (CM 363:10). The Shach (363:13) rules that, out of doubt, one may not extract payment; the K’tzot Hachoshen (246:1) and Netivot Hamishpat (246:1) say he must pay. The Aruch Hashulchan (CM 363:26) says that if the recipient does not usually pay for such services, he should have been informed.
In this case, pl and def belong to different segments of society. In pl’s circles, it is standard for people to receive payment in such cases. The fact that pl did not mention the payment is not, in such circles, a sign of forgoing payment. Def belongs to the broader Israeli society, where friends provide helpful information gratis.
Obligation based on custom does not apply to def, who did not have a custom to obligate him, but the neheneh approach can justify an obligation. According to the Aruch Hashulchan, we have to see if the recipient usually pays for this type of benefit. The following is also a reason to not apply neheneh. While it is difficult to accept def’s claim that he would have sold the home for the same price without an agent (which is possible but not definite), def was indeed not intending to sell the home. When one works his friend’s field that was not slated for cultivation, he is reimbursed for expenses and no more. Furthermore, when one sells his home not of necessity, the price must be good enough to justify the sale. Thus, def’s claim that the price he agreed to was only because he didn’t expect to pay an agent’s fee is valid.
[The final part is very condensed.] The law of the land is that a party is required to pay an agent’s fee only if he signs an agent’s agreement. We implement this type of law of the land even when it is against the original halacha when it was legislated to “prevent denials and quarrels” (Rashba II, 365). In such a case, batei din might also have instituted the matter had they had the opportunity. Experience shows us that this logic applies to agents’ fees.
There are not halachic grounds to require def to pay an agent’s fee. However, it is proper to obligate def to pay 1,000 shekel for hakarat hatov for the help in enabling a significant transaction for his benefit. 
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