Question
Four months ago I was looking to buy a condominium. Since I could not afford to pay an agent I traveled to the community where I wanted to buy. While I was there, a man who saw that I was looking to buy an apartment came up to me and, without asking any questions, informed me of an available apartment. I pursued the matter further and eventually purchased that condominium. I should note that it is quite likely that I would have found that condominium even if he had not told me about it, since it was a well-known fact in the community that this condominium was for sale.
About a month later, the person who told me about the apartment called me, identified himself as an agent and demanded that I pay him an agent’s fee since the information he provided led to my purchase. I feel that I shouldn’t be required to pay since I only used the information because I didn’t know that he was an agent. I think that he deliberately withheld this information in order to demand subsequent payment. Who is correct?
Answer
If we follow the law in Israel, the agent is not entitled to any fee since in order to charge an agent’s fee the agent must first sign his customer to an agreement hiring him to act as his agent. However, when dealing with chareidim, batei din in Israel do not follow this law since the custom among chareidim is to pay an agent’s fee even if the customer did not sign an agreement. Since custom suffices to create an obligation you, as a chareidi, cannot free yourself from the obligation because of the Israeli law.
In order to answer your question it is necessary to classify your relationship with the agent.
The agent provided you with a service that people normally pay for i.e. he worked for you. However, in contrast to most people who hire people to work for them, you did not ask him to work for you. When one asks someone to work for him he is employing him and their relationship is governed by the rules of sechirus poalim. However, when someone works for someone else on his own initiative he is not an employee and he is not entitled to be paid as an employee because no employer ever obligated himself to pay him.
In the Torah literature he is classified as a yoreid. The reason for this name is because the case which is discussed in the Gemara (Bava Metsiyo 101A) is where a person planted trees in another person’s field without having been asked to do so. One of the salient differences between a yoreid and an employee is that if one pays an employee late he violates the din of bal talin but if one pays a yoreid late he does not violate this issur.
Even though the beneficiary of the yoreid’s work never obligated himself to pay, nevertheless the Gemara (Bava Metsiyo 101A) rules that he has to pay a yoreid something. There are two approaches to explain what obligates the beneficiary to pay the one who worked for him in spite of the fact that he never obligated himself. Some meforshim explain that he must pay for the benefit he derives from the worker. This is supported by the Gemara (Bava Metsiyo 117B) that states, “It is forbidden to benefit from someone else’s possessions (without paying for them).” The Gemara gives as an example someone who effectively worked for someone else on his own initiative. This is also the approach of the Ketsos (246, 2).
Other meforshim state that the requirement to pay is not because of the benefit received but because of the savings that the beneficiary had because of what the yoreid did for him. This is known in the Gemoro as mishtarshi. The case discussed in the Gemara (Chulin 131A) is where the non-Jewish government took away someone’s crop before he had a chance to separate terumoh. The Gemara rules that if the reason the government took away his crop is because he owed the government money he must give replacement terumoh to the cohein since the terumoh that was present in the untithed crop was used to pay back his debt, effectively saving him money.
If one follows the second approach it is quite clear that you are not obligated to pay the agent. The source is Tosafos (ibid, c.f. Sha’anei) who explains why, in spite of the above, one who eats his own terumoh is not obligated to pay for it since he saved himself the cost of a meal. Tosafos explains that even though the person ate, nevertheless, he could have fasted and not incurred the expense of a meal. Therefore, when he ate he did not necessarily save any money.
In your case you say that you probably would have found the condo yourself. Therefore, it isn’t certain that the agent saved you any money. Even if you would have bought a different condo without paying an agent’s fee you would not have to pay, because you could have bought some condo without paying an agent’s fee. Thus, we have shown that if the reason why one must pay a yoreid is because of the savings, you are not obligated to that person.
Since many maintain that the reason one must pay is because of the benefit derived from the yoreid, we have to investigate if you have to pay for the benefit you received.
You mentioned that most likely you would have come upon this apartment by yourself. The Pischei Choshen (Sechirus 14, footnote 10) discusses a similar case. In his case, a seller advertised in the newspaper. In the interim an agent sent him a customer who bought his apartment. The question was whether he had to pay the agent since most likely the seller would have found some customer as a result of his advertisement. The Pischei Choshen writes that the beis din has to make a careful evaluation of how much benefit the seller had. Therefore, in your situation also, beis din would have to evaluate how likely it is that you would have found out the information by yourself.
There is an additional reason to free you from paying anything. When one works without having been asked to work, the owner of the property has the prerogative to tell him to remove his improvements. However, in your case it is not possible to remove the benefit since you already bought the property.
The Chazon Ish (Bava Kama 22, 6) says that beis din tries to find out the truth. If beis din believes that the owner would really rather not have the improvement, then we accept his request for the one who improved to remove what he did, even when is impossible for him to do so. Thus, if beis din will determine that you really would not have wanted the information because you could not afford the expense you will not have to pay anything.
In conclusion: If it is plausible that you would have anyway found out the information that was provided by the agent, or you can show that you really would have turned down the information had you known that you will have to pay for it, then you do not have to pay the agent.
