Question
A while back I had an idea for a shidduch. However, since I am not a shadchan, I suggested my idea to someone who is. He spoke to the two sides and Baruch Hashem my idea worked and they got engaged. When I heard about the success, I called the shadchan and asked for a share in the payment that he received from the parties. He replied that I am not entitled to anything since I didn’t work as a shadchan. Who is right?
Answer
There are two issues to consider. One is a general issue and one is an issue that is specific to shidduchim.
Before considering these issues, we should define the payment that a shadchan receives. The payment is for performance of a job and therefore, the halachos of sechirus poalim apply. For example, one must pay a shadchan on time in order to avoid violating the issur of bal tolin. On time for a shidduch is the day of the engagement party or, if there is no such party, the day when the engagement is publicized.
The general issue which is important in your situation is that it is critical to consider your thoughts and words at the time when you first suggested the shidduch to the shadchan. With regard to your thoughts, if at that time you didn’t expect to be paid, the Nesivos (12, 5) rules that you cannot afterwards ask to be paid in any case.
He explains that we differentiate between this case and the case of someone who mentally decided to forgive payment of a loan. In the latter case, he may afterwards ask to be paid if he did not divulge his decision to the one who owed him the money, because mechiloh is only binding if it was announced. Mental decisions are not legally binding. (They are called mechiloh beleiv.). However, if one mentally decided to work for free, and only after working he later decided that he wants to be paid, he is not entitled to payment even though he did not verbalize his intentions. This is because at the time when he worked we consider it that he gave a present, and one who gave a present may not later ask to be paid. Thus, if you at first intended to do this as a favor, you may not ask to be paid after your suggestion was successful.
The issue which is specific to shidduchim is: who is entitled to payment for making a shidduch. Many of the laws, including this one, are based on custom.
One issue that is relevant to your question is the division of payment of shadchanus. The minhag is to divide the payment into three equal parts and one third goes to the one who suggests a shidduch. Therefore, at most you can ask for a third of the entire payment since all you did was to suggest the shidduch.
The source for an answer to your question whether it is you or the shadchan who is entitled to this third is a response of the Chut Shoni (no. 3). He was asked by someone who suggested a shidduch to the brother-in-law of a widow, because he didn’t feel comfortable to speak directly with the widow. The Chut Shoni ruled that if the one who suggested the shidduch did not stipulate at the outset that he wanted to be paid, he cannot afterwards demand payment.
He explains that there are two types of people: the parties to a shidduch and outsiders. The parties to a shidduch are the ones who are responsible for marrying off the couple. In most cases it is the parents who are responsible for their children’s shidduch. Therefore, parents are not shadchanim and they can never ask for shadchanus. But the one who suggests a shidduch to them or directly to the chosson and kalla is a shadchan and is entitled to payment. Applying this rule to his case he ruled that since the widow took direct responsibility for her shidduchim, her brother-in-law was a shadchan and not a party to the shidduch. Since the brother-in-law was a shadchan, the one who suggested the shidduch to him was not entitled to payment if he did not stipulate at the outset that he expected to be paid.
Applying this to your case, even if you had thought to be paid at the time when you suggested the shidduch, since when you suggested the shidduch to the shadchan you did not stipulate that you wanted to share in the shadchanus he is not required to share the payment with you.
We should note that sometimes there are people other than the parents who are considered to be the parties to a shidduch. A common situation is a seminary for ba’alos teshuvo. Often, one of the staff handles the shidduchim of the students. This person is not entitled to payment as a shadchan and if one suggests a shidduch to him, the one who suggested the shidduch is entitled to payment even though the one who will pay is the girl or her parents and not the staff member.
In conclusion: Since you did not say to the shadchan at the outset that you wished to be paid, you are not entitled to any monetary compensation.
