Question
Four years ago someone asked me to try to find a shidduch for his son. After much investigative work I found a girl who I thought would be very suitable for his son and Baruch Hashem the shidduch was successful. When they got engaged the father of the kallah paid me immediately for my work but the father of the chosson said he knows he owes me the money but he doesn’t have any money, and even the minimal expenditures that he needs to pay for the chasuna he needs to borrow and his opinion is that he did not need to borrow money just in order to pay me. In the interim, to the best of my knowledge the father has not extricated himself from his debt so I never ask him for the money. However, his son has a steady job and seems to be managing fine. Can I ask the son to pay me, or since I worked for the father, the son has no obligation to pay?
Answer
Before obligating a person to pay anything we have to find a legal basis for the obligation. A son is not an automatic cosigner for his father’s debts so the mere fact that his father is not paying his debt does not even create a moral obligation on the son. However, there is a serious issue that needs careful consideration
When a person works for someone there are two distinct possible reasons why the employer can be obligated to pay. If the employer asked the worker to perform the work then, unless specified otherwise, he effectively hired the worker. Even if no price was mentioned he is obligated to pay since the worker is his employee. Thus, when you were asked by the father to find a shidduch for his son, the father hired you for the job and obligated himself to pay if you succeed, which you did. Since you didn’t fix a price the father owes you whatever is commonly paid to shadchanim, which in Israel is a thousand dollars.
When a person who was not asked to perform a task does so voluntarily he is called a yoreid. The beneficiary of the yoreid’s work is obligated to pay for the benefits unless the custom is not to pay for those benefits. The laws governing a yoreid’s relationship with the one he worked for are not the same as the laws that govern an employee. Thus, since the son was a beneficiary of your work but did not ask you to work, your question can be formulated as whether he is obligated to pay you as a yoreid.
There are two issues that are involved. Even if the father had not asked you to find a shidduch and you would have worked voluntarily, there would be a question whether the son is obligated to pay you as a yoreid, or you are a yoreid only for the father and not for the son. The Halichos Yisrael (res 3) rules that a shadchan is not considered a yoreid for the son. He agrees that if there were no custom, the son would have been personally obligated to pay you as a yoreid since he was the direct beneficiary of your actions which were done in order to benefit him. However, he argues that since the custom is for the parents to pay the shadchan, the custom frees the son from any obligation as the beneficiary of your efforts on his behalf.
The Mishpatei Shlomo (Rav Shlomo Karelitz, 1, 38) wrote to the Halichos Yisrael that custom cannot be invoked to free the son from his obligation in this situation. He agrees that if there were a custom that in the unusual case that the parents fail to pay, the children nevertheless do not pay, then one can invoke custom to free the children from their obligation to pay. The reason is because then it would as if there was a tacit agreement between the shadchan and the child that the child will not have to pay even if the parents did not pay.
However, in fact there is no such specific custom and in other cases where the parents did not pay their shadchan the shadchan did ask the children to pay his bill. Custom is case specific and one can only apply custom to the exact situation where the custom has been established. To be precise, the custom that has been established is just that normally the father pays his son’s bill but that has no bearing on the shadchan. Rather it is a custom that relates to the father and his son but has no bearing on the shadchan since he gets paid which is the only thing that affects him.
It seems that the position of the Mishpatei Shlomo is correct since custom always is applied only in its narrowest sense. For example, if there is a general custom in a country that employers pay certain benefits but yeshivas don’t follow that custom, rabbeim in a yeshiva cannot invoke custom to claim these benefits since yeshivas do not follow the general custom.
In your situation, there is a second critical issue since you were not acting as a volunteer, a yoreid, but rather as an employee of the father since the father asked you to find a shidduch. The issue is whether one who was hired to do a job can still claim the status of a yoreid in order to collect from the beneficiary of his actions. Of course one cannot collect twice. Therefore if one receives his salary from his employer he cannot ask for additional pay as a yoreid. The issue pertains only to situations like yours where you were hired by one person to perform work for someone else but your employer did not pay the salary you deserved as an employee, and the question is whether you can still demand compensation as a yoreid from the beneficiary.
The situation in the Gemara (BM 118A) where this is an issue is where A hired B to work in C’s field. Since A hired B, A must pay B for his work. The issue that parallels our case is whether, in case A fails to pay, does C have to pay?
This scenario is not discussed by the Gemara but the Rashbo understands from this section of Gemara that C does have to pay. He explains that the exact reasoning is that the liability falls directly upon C since he is the beneficiary. It is only that by virtue of the fact that A asked B to perform the work that A became responsible for C’s liability. Since he asked B to do the work, he accepted upon himself to be directly responsible. C is really responsible to pay B but A just agreed to pay on C’s behalf. Therefore, according to the Rashba if B does not pay then C must pay.
The Rashba understands another situation in the Gemara (Nedarim 33B) in the same manner. A husband must provide food for his wife. If a husband went on a trip and failed to leave funds to provide his wife with food, the Rashbo rules that if another person provided her with funds for food, without specifying that he is paying on behalf of her husband, he can nonetheless force the husband to repay him upon his return. The Rashbo explains that the reasoning is that the wife owes the benefactor the money and since the husband owes his wife the money, the benefactor may collect from the husband. Again we see that the Rashbo maintains that beneficiaries (in this case it is the wife) must always pay even if someone else has responsibility.
However, in this situation the Ran disagrees with the Rashba. He agrees with the Rashba in principle that the beneficiary must pay. However, he argues that since most wives don’t have the means to pay, most probably the one who provided the wife with food never intended to collect from the wife, even though strictly speaking he could have.
The Erech Shai (CM 185, 10) discusses your situation and invokes the Ran’s argument to free the young couple from paying. He argues that since at the time that the shadchan worked the young couple didn’t have money, most probably the shadchan never expected to be paid by the couple. Therefore, even if later they get money they are not required to pay. We should note that the Erech Shai essentially agrees with the Rashbo that in general the beneficiary must pay. Just in the particular case of a young couple he understands that even the Rashbo would agree that the young couple does not need to pay.
The Chasam Sofer (commentary on BM 14B) probably didn’t see the Rashba and he argues that in general one who was hired as an employee cannot ask the beneficiary to pay him as a yoreid since he was working as an employee. However the Avnei Choshen (CM 232, 1) disagrees with the Chasam Sofer and the Chasam Sofer does not have strong support for his ruling.
In conclusion: It is difficult for beis din to force the son to pay but it might be a good idea for him since according to many opinions the son is obligated to pay. We should note a story told by Rav Chaim Kanievsky (Derech Sicho pg. 115) of a couple who came to the Chazon Ish because they were childless. The couple mentioned that the husband’s parents didn’t pay the shadchan because it was the husband’s brother who made the shiduch. The Chazon Ish advised the husband to give the shaddchan the money even if he doesn’t want it.
