I was combing the newspaper in search for a house to rent. I noticed an ad by a rental agency for various houses and for each house they listed the street on which it was located. One of the houses they listed was in an area that I know well and I knew that there are only about a hundred fifty houses on that street. Since I also knew some of the people who live on the street I figured I can find out which house was available and that way I can save on the fee that the rental agency charges. I was successful and I found the owner and closed with him without telling the rental agency anything. I acknowledge that if I wouldn’t have seen the advertisement I would not have known that there was a house for rent since most houses in the vicinity are owner occupied. Am I obligated to report to the rental agency that I rented and pay them something or not since I didn’t use their services? I asked some friends and they told me I shouldn’t say anything because I did the work myself and for what the agency did one doesn’t owe anything. Is that correct?
Since the answer to your question depends on local factors we will give general rules that will enable you to determine the answer to your question.
Before obligating a person to pay anything, the first question one must always ask is what justification is there for obligating the individual to pay.
In your case the only thing the agency did for you is to provide you with the information that was instrumental for you to rent the house.
When one performs a job for another person, the beneficiary is obligated to pay only if normally people pay for this job. Even if a person asks someone to do something on his behalf and agrees to pay for the job, he is not obligated if the accepted custom is not to pay for this action!
The source for this principle is a ruling of the Rosh (res 64, 3) that is ruled by the Ramo (129, 22) in the case of an individual who offered money to someone to cosign a loan for him. The Rosh wrote that since the custom (at his time) was that people did not charge for cosigning a loan the borrower was not obligated to pay the cosigner. Therefore, in places where it is not customary to charge for providing even the precise location of an available house, you would not need to pay. We should note that in the charedi community in Israel it is customary to charge for this service and very often this is all that rental agents do for their customers (because that is the desire of the customer).
The second factor to consider is that you did not use their services. The purpose of their advertisement was to attract you to use their services. If you use them, you effectively hire them as your employee and are obligated to pay them in case you rent a house that they suggest to you. However, you did not contact them and you never agreed to employ them. Thus, you definitely do not have to pay them as employees.
However, even when a person performs a job that he was not hired to do he is often entitled to payment as a yoreid, one who performed work on another person’s behalf even though he was not hired to do so. For example, the Gemoro (BM 101A) rules that if a person planted a tree in someone else’s field and the owner of the field leaves the tree in his field, the owner of the field must pay the planter for having planted the tree for him. The reason is that in Torah law there is a concept that a person must pay for benefits he receives. (The fact that the reason one must pay a yoreid is because he benefited from the yoreid is stated by the Ketsos (246, 1 and 2) and provable from the Milchamos (BB 2B).)
However, in your situation one cannot say that in placing the advertisement the agency was a yoreid since they did not intend to benefit you or anyone else by their advertisement. Their intent was solely to help themselves by attracting customers who would hire them and pay for their services. We can prove that one is not entitled to payment as a yoreid if his action was for himself and not in order to help another person from a ruling of the Ramo (CM 264, 4) in the case of two people who were incarcerated simultaneously. If one of the prisoners spent money (lawyers, bribes etc.) to gain his freedom he may not demand payment from the second prisoner who also gained freedom incidentally as a result of his efforts, unless his original intent was to gain freedom for the other prisoner as well. If the reason he spent money was solely in order to gain his own freedom he is not entitled to payment from his fellow former prisoner.
Thus we have learned that one must pay a yoreid because he must pay for the benefit which the yoreid gave him. But in case the yoreid did not intend to benefit the recipient, he cannot demand payment from the recipient. Therefore, the rental agency is not entitled to payment from you as a yoreid.
There is a second completely distinct situation where one who derives benefit must pay his benefactor. In the first case the benefactor bestows a benefit upon his beneficiary. In the second case the beneficiary himself acts to derive benefit from a benefactor.
Tosafos (BK 101A) writes that there is an important limitation to this liability. The beneficiary is only liable if he himself or his animal acts to derive the benefit. Tosafos derives this rule from a ruling of the Gemara (ibid.) that if a monkey took A’s dye and used it to dye B’s wool, B does not have to pay A. Even though B benefited from A’s dye, since neither B nor his animal took the dye (and A did not dye the wool), even though he is a beneficiary, he is not obligated to pay for his benefit. Rav Chaim Brisker (see Birkas Shmuel BK 14) explains that the basis for this liability is that it is a kind of theft of benefit that the beneficiary must pay for, and one is only responsible for his own and his animal’s actions but not for the actions of a third party.
The Gemara is replete with examples of this. For example, the Gemara (BK 20B-21B) has a lengthy discussion whether and when one who squatted on another person’s vacant property must pay for the rent that he saved, i.e. the benefit he derived from the property. The upshot of the Gemara’s discussion is that one who derives benefit must pay for the benefit only in case the owner suffered at least a small loss. The loss can be minute. A pruto (about three cents) certainly suffices and according to some (See Maharsho Kesubos 30B) it can be even less!
Moreover, one can derive from Tosafos (BK 20A) that even if the loss is not certain but only probable it suffices. Furthermore, most Rishonim say – and that is the ruling of the SA (CM 363, 7) – that the beneficiary must pay for the entire benefit that he received even if it is much larger than the benefactor’s loss.
We can now derive guidelines that will allow you to determine whether you owe the agency money. It is true that the agency is not entitled to money as a yoreid but perhaps you owe money because you derived benefit from the information in their advertisement. We should note that this is not comparable to other information that one derives from printed matter. For example, if one learns from a text how to produce toothpaste and then sells it, the author of the book cannot demand a share of the profits since he gave the information away to the public. However, here the advertiser (a kind of author) tried to hide the information that you derived from his advertisement. Based on what we learned, it is possible that you owe money for the benefit you derived.
The upshot of the above discussion is that there are two factors that will determine whether you actually owe the agency money for the benefit you derived. Since one must pay for the benefit he gained only if his benefactor suffered a loss or even a likely loss, you will have to do an honest investigation to determine whether the agency most likely would have found a different customer for the house. For example, if they are the only agency that operates in this area and the location in question is a desirable location, their loss is likely. However, if there are many competing agencies, then their loss cannot be classified as likely and you would not need to pay them. Furthermore, if in your community one does not pay for merely receiving information from a real estate agent then you also would not need to pay since you did not derive a benefit with monetary value.