P'ninat Mishpat: Realtor Fee Despite the Buyer’s Refusal? | Beit Din Eretz Hemda - Gazit | Beit Midrash

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P'ninat Mishpat

קטגוריה משנית

Family and Society
Contracts and Agreements

Case: The plaintiff (=pl), a real estate broker, specializes in special deals. He shared with a family member (=fm) information of a contractor (=con) under pressure to sell an apartment in a building under construction. Fm was not interested but passed on the information to a relative of his (=def), who eventually bought it for a big discount. Pl was involved with def mainly behind the scenes, and def claims that he thought pl worked for con. Soon before the sale went through, fm told def that pl wanted "something" for his efforts, and def’s lawyer informed him that pl asked for a brokerage fee (without mentioning an amount). Def told both that he was unwilling to pay beyond what he envisioned when agreeing to a price with con and claims he said he would rather back out of the deal. Pl and def did not discuss the matter directly. Pl is suing def for 1.5% fee (=31,500 NIS), a discount from his normal 2%.

Ruling: There are two grounds for obligation to pay for services: agreement (missing here); benefit received (debated here; see Shut Harashba IV:125). In this case, an Israeli law (from 2012) precludes a realtor’s ability to demand a fee without a detailed contract. The point of the law is to prevent situations of dispute whether a fee is warranted and how much it is. The law is designed even for cases where the benefit from the work is clear. Beit din generally accepts this law, although in certain cases, where its logic is not pertinent and not levying the fee would cause an injustice, our beit din may obligate, at least partial, payment. This is based on the presumption that the rabbinic community should be in agreement with a law for it to be halachically binding (Shut Chatam Sofer, V:45).
Def seems to have received great financial advantage from the purchase, pl did put serious work into it, and pl could likely have marketed it to someone else. Therefore, it seems unfair for def not to pay anything. Although def said to fm and his lawyer that he was unwilling to pay, the Pri Tevuah (cited in Pitchei Teshuva, Choshen Mishpat 264:3) says that he must pay for the benefit received. The Chazon Ish (Bava Batra 2:6) agrees in cases where the recipient’s benefit is evident and it is unfeasible for the provider to take back the benefit provided. Since some disagree with the Pri Tevuah or limit the ruling to cases where the recipient never showed interest in the service (see Pitchei Choshen, Sechirut 8:(64)), the matter depends on a machloket. Although def’s claim that he was not interested in the purchase if he had to pay more was not proved, we cannot extract payment out of doubt.
At times, it may be possible to force someone to pay, especially to a worker, beyond the letter of the law (see opinions in the Rama, CM 12:2). However, here, pl bears some fault, as he had ample opportunities to have def sign a contract. While pl’s demand for payment may have been miscommunicated before the contract was signed, it behooved pl to inquire how def responded to it. His failure to do so seems to indicate that pl preferred to make sure that def bought the property and then to try to receive payment based on moral persuasion. Therefore, beit din exempted def totally.