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Case: The plaintiffs (pl 1, pl 2) are in-laws who signed a contract to buy an apartment for their children, with the help of an agent (def), whom they paid. The bank turned them down for a mortgage because part of the apartment was built illegally (one room appears in the Land Registry as a balcony) and the apartment which they were told is 70 sq. meters is registered as 52 meters. Pl sued the seller in a beit din and received a ruling that stated the sale was void due to mekach taut (misinformed sale). Pl demand that def return the agent’s fee, as he withheld pertinent information, which, as a friend of the seller, he certainly had. Def claims that the first beit din made a mistake, as a converted balcony is not grounds for mekach taut. He points out that pl are satisfied with the apartment as it is, and 70 meters are indeed usable. Def denies knowing about the apartment’s legal status, which buyers should check themselves at the Land Registry.
Pl 2 asked def to find a renter for the apartment, which he did, and def is countersuing for an agent’s fee for this. Pl 2 responds that since the rent is now going to the seller, as the sale was cancelled, the seller should pay the fee.
P'ninat Mishpat (829)
Various Rabbis
371 - Real Estate Agent’s Fee Without Clear Agreements – Part II
372 - Agent’s Fee for a Sale Cancelled After Contract
373 - Damages from Water Pressure
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Does an agent receive his fee for brokering an agreement that was made but not brought to fruition? The Rama (Choshen Mishpat 185:10) says that there are different local practices of whether a matchmaker, whom he compares to a commercial agent, receives his fee from the time of engagement or the time of marriage and that this determines whether he receives pay if there is a broken engagement. (Israeli law talks about an agent as being the one to bring the sides to a binding agreement.) The Maharshal (Bava Kama 10:39) says that theshadchan is deserving once he brings them to an agreement that includes a penalty for breaking it (tenaim).The Aruch Hashulchan (CM 185:11) adds that in that case, the side that breaks the engagement has to return the other side’s part of the shadchan fee, but the shadchandoes not return anything.
The matter is different, though, when mekach taut causes the sale to be naturally void, as just as the sale was a mistake from the outset, it turns out that there was never the basis for the fee. However, in our case, the contract sets special financial provisions (penalties) for the case that problems in the apartment are uncovered, which included the possibility of upholding the sale and making financial adjustments (which does not exist according to halacha). Thus, this sale was not naturally void even in the case of serious illegal construction. The wording of the contract makes it clear that even contradictions between what they were told and that which is in the Land Registry do not void the sale, except that an appendix to the contract made it possible to back out if they could not receive a mortgage.
The ruling of the previous beit din does not impact this case. While beit din does not contradict the ruling of a previous beit din, that is only in regard to the specific issues and litigants involved. It does not mean that another beit din has to accept the assumptions of the previous one in different contexts.
In summary, def does not have to return the fee he was given. However, he is not entitled to a fee for the rental agreement because according to Israeli law, an agent’s fee is not due when there was no signed agent’s contract, which is the case here. Although halacha can obligate the party due to the benefit he received from the agent, this does not apply here since there does not turn out to be benefit.
Various Rabbis
Various Rabbis including those of of Yeshivat Bet El, such as Rabbi Chaim Katz, Rabbi Binyamin Bamberger and Rabbi Yitzchak Greenblat and others.
Moreshet Shaul Moreshet Shaul: A Crown and its Scepter – part II
Based on Siach Shaul, Pirkei Machshava V’Hadracha p. 294-5
P'ninat Mishpat P'ninat Mishpat: Unsuccessful Transfer of Yeshiva – part V
based on appeal ruling 82138 of the Eretz Hemdah-Gazit Rabbinical Courts
P'ninat Mishpat P'ninat Mishpat: Sharing in Plumbing Expenses – part II
based on ruling 85013 of the Eretz Hemdah-Gazit Rabbinical Courts
P'ninat Mishpat P'ninat Mishpat: Undoing a Problematic Partnership – part II
based on ruling 84061 of the Eretz Hemdah-Gazit Rabbinical Courts
Rabbis in Midrash
Lessons
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Kuzari -Rabbi Ari Shvat Kuzari class 9 - "Seeing is Believing" (parag. 21-30)
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Ein Aya Various Universal Stages of the Geula Process
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Kuzari -Rabbi Ari Shvat Kuzari class 8- "Answering Questions on the Kuzari's Proof from Mass Revelation
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Kuzari -Rabbi Ari Shvat Kuzari class 7 - Five Accumulative Proofs of G-d
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Ein Aya Muscle & Meaning: The Dual Nature of Gevurah (Physical Strength)
Is physical strength and fitness a necessity or an ideal? Although it if often totally overlooked among topics of Judaism, Rav Kook writes that it clearly is also a necessity to deter the many enemies of Israel, but even in Y'mot HaMashiach, in the Messianic era, to a certain extent, it's ideal continues even after our enemies will have been finished off.
