Friend – Or (Non-Professional) Agent?

Question

Chayim, a recently engaged choson, was looking for an apartment
near the yeshiva. He asked Menachem, who lived in the same
district, whether he knew of any suitable apartments for sale. “There is
a nice apartment available just across the street from my parents,” he
replied. Chayim took down the details and called his parents and future
parents-in-law to come and view the property. They all liked it. A price
was agreed upon and the sale completed. Chayim meets Menachem and thanks
him for the advice. Menachem asks for his commission, since he was the
“agent” who helped Chayim find the apartment. Chayim refuses, for
three reasons: (a) He asked Menachem for a friendly favor, and not to act
as an agent. (b) Menachem is not entitled to a fee, since he is not a
professional. (c) Menachem only did the first part of the job, suggesting
a suitable apartment. The parties involved carried out the actual
negotiations. Even if Menachem had been employed as a professional agent,
he would only have been entitled to a third of the commission for having
set the ball rolling. Are any of these arguments valid?


Answer

The Remo rules (Shulchan Oruch, Choshen Mishpot,
264:4) that if one person did work or provided a service for another, the
recipient can not excuse himself from paying by arguing that he never
asked for the work to be done. Since he derived benefit for which payment
is usually made, he must pay. Note that no distinction is made whether the
worker is a professional or an amateur (as long as the results of the job
are not amateurish!).

The source of this law is in Tractate Bovo
Metzia
(101a). The gemoro cites a case where a person plants or
sows another person’s field without the owner’s permission. It is
obvious that this field is meant to be planted. The law is that the
uninvited planter is entitled to full wages for his efforts. The owner can
not argue that he never asked this person to do the work. He derived
benefit from having the work done and he therefore must pay for it. The
Vilna Gaon (Ibid. 185, Note 13) adds that the same principle
applies to any intermediary (sirsur) who makes a connection between
two parties without being asked. He is entitled to the same fee as a hired
professional agent.

However, if the unrequested work was performed by a
friend, who originally had in mind to do a favor, the law is different.
The Nesivos writes (Ibid. 12, Note 5) that such an intention is
tantamount to foregoing one’s right to payment. The friend is
subsequently unable to change his mind and demand payment for his efforts.

As we have mentioned above, the work of an agent
(real estate, matchmaker, etc.) is divided into two parts. He first
suggests what he considers to be a suitable “deal” and then tries to
bring the parties to agreement through guiding the negotiations. If two
agents are involved, one making the suggestion and the other bringing the
negotiations to a successful conclusion, they share the fee. The custom is
that the one who made the suggestion receives one-third of the commission,
whereas the one who completed the deal is entitled to two-thirds. However,
if an outsider makes a suggestion and the parties conduct the rest of the
negotiations on their own, he receives the full fee. There is no other outside
agent
to share the fee.

We
can therefore conclude that unless Menachem admits that his original
intention was to do a favor, he is entitled to the full normal fee for a
real estate broker. The fact that he is not a professional does not
detract from his rights (unless there is a clearly established local
custom to pay a lower fee to a non-professional).