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Non-negotiated Fees

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Rabbi Daniel Mann

Tevet 5783
Question: When a service provider and a hirer do not discuss the fee in advance and disagree later, what does Halacha say about resolving the disagreement?

Answer: When we adjudicate such cases in beit din, we usually need to consider particular circumstances. We would give two pieces of advice. Discuss as many important matters as possible before work begins, and realize that compromise between the sides is almost always preferable to adjudication. However, it is good to also be aware of basic halachic/legal guidelines.
Two rules about monetary law and specifically employment law can compete in cases where some matters were not settled in advance: 1) We are to follow our society’s common practices (Bava Metzia 83a; ibid. 76a). 2) When there is a doubt whether one needs to pay and how much, he pays the least of the reasonable options (Bava Kama 46b).
When there is no discussion, the service recipient cannot normally say that he thought the service was being provided for free (Rama, Choshen Mishpat 264:4). But how much should the worker receive?
When there is one accepted fee, that is what he receives (Bava Metzia 76a). A rare example of an accepted fee in our days might be "shadchanus gelt" in certain communities. A fee used in a simple majority of cases does not constitute an accepted fee, (K’tzot Hachoshen 331:3), but a sweeping majority would enter the realm of minhag. When there are multiple fees, the lowest one is used (Rama, CM 332:4). An exception to this rule is when (one of the) sides use language that indicates they want to use an average rate (Shulchan Aruch, CM 331:3, based on Bava Metzia 87a).
Standards are not only set according to the time and place, but also the type of profession needed and the objective qualifications the worker possesses (Pitchei Choshen, Sechirut 8:(11)). For example, electrical work done by a licensed electrician is more expensive not only than the work of a babysitter but than a handyman who also does electrical work. Other factors are dependent on the case. Poskim discuss cases in which there was no explicit decisions but that the intention can be deciphered from the circumstances. For example when the sides gave different offers and did not agree, and only later the work started without resolving the matter of price, the one who initiated the new contact is likely to be assumed to have accepted the other side’s offer (see Pitchei Choshen ibid. (13), based on the Shulchan Aruch, CM 221:1).
The classic rules, including those above, produce some less standard applications in contemporary society. First, for many types of services, it is not possible for the worker to know how difficult and time-consuming a job will be, e.g., a car mechanic, computer technician. We can apply the K’tzot Hachoshen’s (ibid.) ruling that when it is not possible to determine price in advance, the average fee is appropriate.
Furthermore, there are also fields in which the service provider is the one who normally sets the price. Determining what fields fall into this category will also be a matter of local practice. Often when there is no discussion about the price, it is the shortcoming of both sides, which has its own complicated halachic consequences (see K’tzot Hachoshen ibid., Maharashdam CM, 335). However, when the hirer should have known that the worker would set his price and assume that the hirer will accept it or negotiate, that is what the hirer should do. The hirer cannot, then, object afterwards without prior warning. It is likely, even, that when he went into the process, the legal construct of giving trust to the person with whom you are financially interacting applies (see discussion in Living the Halachic Process VI, I-2).
The exception to this rule would be if the worker makes an unreasonable or inconsistent charge or he does not provide commensurate service. Neither side should purposely refrain from discussing the fee in advance in order to seize an opportunity where he could negotiate later from a perceived position of strength.




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