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Beshalach-A Real Estate Agent’s Predicament

 

Question

I work as a real estate agent. Half a year ago, I was approached by someone who was interested in selling his house and also by another person interested in buying in that neighborhood. I tried to negotiate a sale and made a lot of progress but the negotiations broke down because the seller refused to accept less than seven hundred thousand dollars and the buyer wouldn’t go over six hundred fifty thousand dollars. Both prices are reasonable but I couldn’t get the sides to agree. Now, half a year later, both parties came back to me and informed me that they are willing to accept the other party’s offer. Am I required to inform each party of the new development and arrange for a sale at six hundred seventy-five thousand dollars, or am I free to withhold information from one side and help the other side and if so, are there any rules that would require me to help one side at the expense of the other?

Answer

Your question is whether you are allowed to help one party or you are required to help both equally. There are moral and professional issues, but we will initially investigate your issue from the standpoint of the halacha. We will study a few sections of Gemara to clarify the prohibitions that are involved in helping one side at the expense of the other and determine if they apply in your situation.

One prohibition that sometimes applies when one helps one party at the expense of the other is what the Mishna says in Pirkei Avos (4, 7), “Don’t act (make yourself) in a manner that is similar to orchei hadayanim.”

To determine the exact meaning of this prohibition and when it applies and thus if it applies in your situation, we will study one section of Gemara where the Gemara describes an action of an amora as falling into the category of being similar to orchei hadayanim and a very similar situation that the Gemara did not consider as being similar to orchei hadayanim.

The Gemara in Kesubos (52B) discusses the situation of a widow who did not ask for payment of her kesubo and therefore was entitled to support from her husband’s heirs. The law is that the heirs are required to pay her unpredictable (variable) medical expenses but not her fixed medical expenses.

Rabbi Yochonon had a relative whose late father’s wife was chronically ill and was thus entitled to payment for her medical expenses for her condition from the relative, since he was his father’s heir. Rabbi Yochonon advised his relative to find a doctor who would fix a price to cover her long-term medical treatment for this condition since that would convert it to a fixed expense and free him from covering this medical condition and require the widow to foot the bill herself.

The Gemara rules that if Rabbi Yochonon had not been a relative, he would have been forbidden to help the orphans at the expense of the widow because his behavior falls under the category of orchei hadayanim. However, Rabbi Yochonon was permitted to help the orphans since one may favor his relatives over non-relatives. For Rabbi Yochonon in particular this behavior was still improper because people may deduce from his action that one may favor one person over another even when the person he favors is a non-relative. However, other people who are not known to be experts in Jewish law are permitted to favor their relatives over another person.

Rashi (ibid) explains that what orchei hadayanim do is exactly what litigators today do in a secular court: they try to influence the judge to issue a ruling that is favorable to one party. Rabbi Yochonon’s behavior was only similar because his relative was not involved in a court case but one whose action could change the halacha by changing the situation. Rabbi Yochonon advised his relative to change the situation to benefit the relative at the expense of the widow.

In order to understand the nature of this prohibition it is important to consider another section of Gemara (Kesubos 54B) where the same Rabbi Yochonon acted similarly and yet the Gemara does not state that he violated the prohibition to act like orchei hadayanim.

In this case, Rabbi Yochonon advised a relative (perhaps the same one) about a way to legally free himself from the obligation to cover the cost of the meals of his late father’s widow who ate significantly more than people usually eat. The Rishonim, including Tosafos, ask why in this case the Gemara does not state that Rabbi Yochonon acted improperly?

Tosafos answers that the difference is that in the second case the widow has to voluntarily accept the offer of the orphans, whereas in the previous case once the orphans found such a doctor the widow was no longer entitled to payment for her medical expenses, whether she agreed or not.

The Me’iri (in both of the above sections but clearer in the first) however, answers that in the first case the orphans were at first obligated to pay for her medical expenses and Rabbi Yochonon’s advice was how to avoid paying their obligation. By contrast, in the second case the widow was abusing her right to eat at the expense of the orphans and Rabbi Yochonon was helping the orphans to avoid being exploited.

The Ritva agrees with both this answer and the answer of Tosafos. Thus, he limits the prohibition of orchei hadayanim to advice that can be used by one party to avoid paying a legitimate obligation and also that the adversely affected party does not have a choice. The Rivash (res 107) and the Maharshal (Yam Shel Shlomo very end of chapter 4 on Kesubos) rule like the Me’iri that one is permitted to advise his fellow Jew how to avoid a loss.

Thus, we have determined that there are two limitations on the prohibition of orchei hadayanim. One is that it does not apply if the advice only serves to prevent a loss, and the second is if the advice is being given to a relative. We note that we find in other places in the halacha, based on the pasuk (Mishlei 27, 10), “A good neighbor is better than a brother who lives far away,” that a neighbor has the same standing as a relative. Many poskim (e.g., Rav Chaim Kaniefsky (Orchos Chaim vol 8), Rav Silman (Darkei Choshen vol. 1 page 422) invoke this equivalence to this issue as well and rule that one may help a neighbor and even a good friend at another’s expense.

The Chafetz Chaim applies this Gemara in many places and understands that the prohibition is not limited to offering legal advice but is a general prohibition to favor one Jew over another if neither is a relative. He even rules (Rechilus 9, 10 in the note) that if a bystander notices that a customer verbally agreed to pay a merchant a price that is clearly higher than the fixed price for an item but less than one sixth higher than the fixed price (hence the seller perhaps does not violate the prohibition of ono’o) the bystander will violate the issur of loshon hora if he informs the customer of that he is being overcharged since he will cause the merchant to lose a sale and the bystander is not allowed to favor the customer over the merchant! (It is unclear if the Chafetz Chaim rules this even if they did not yet verbally agree, as some maintain.)

While we are not of a stature to argue with the Chafetz Chaim, we note that his ruling seems to run counter to the ruling of the Ritva, Me’eri, Rivash and Maharshal because the advice is only being used to avoid being overcharged.

It is important for our situation to note that the Gemara invoked this prohibition only in cases where the information that was provided served to enable a person to avoid a legitimate obligation. (In the only other instance (Kesubos 86A) in the Gemara where this prohibition is invoked, the amora, Rav Nachman, informed a relative of an improper action that he could take to shirk a legitimate obligation.).

In your case, if you only inform one party you will not cause that party to do anything improper. Therefore, this Gemara does not provide us with a source to forbid you from helping either the seller or the buyer if you have a reason to prefer one of them.

Many understand that the Chafetz Chaim invoked this prohibition even to forbid informing a Jew who did not yet agree to purchase the item that he could buy it for a cheaper price at a different store. However, based on the above it would seem that there is no source for this ruling. Rav Nissim Karelitz is also cited (Dirshu printing of the Chafetz Chaim) as ruling that there is no such prohibition.

A second Gemara (BM 76A) that is related to your question discusses an employer who commissioned his agent to hire workers to perform a task for four coins. The agent offered the workers only three coins which they agreed to accept as their remuneration. The Gemara rules, based on a pasuk, that the workers have a valid complaint against the agent that if the employer was willing to pay four coins, he should have offered them four coins and not saved the employer’s money at their expense. Perhaps, in your case a party from whom you withhold information would have a valid complaint that you should have informed him of the other party’s revised offer, and not helped the other party at his expense.

However, based on the way the commentaries understand this Gemara it would seem that often this ruling will not apply. The commentaries ask why the employees have a justified complaint if the agent acted to save money for the employer?

Some answer (Ein Yehosef) that if the employer told the agent to offer four coins, he apparently wanted to be nice to his employees. Perhaps, he thought that they will work better. Therefore, the agent should not have acted against his wishes.

Others (Moshchas Aharon, Melo Horo’im) answer that since generally employees are poorer than employers the agent should not have favored the wealthier employer. Still others answer that if the employer told the agent to offer four coins, he shouldn’t have thought of ways to help the employer at the employee’s expense.

If one follows the first answer certainly this ruling does not apply in your case. The second answer may suggest that if one of the two is poor perhaps you should help him. The third answer also does not apply here since neither party wanted to help the other. Rather, each party was willing to concede, in his own interest, in order to achieve his goal.

Based on the above, it would seem that you are free to act as you wish.

Furthermore, we saw that one is allowed to help his relative even by offering him advice to enable him to avoid an obligation. Since one has no closer relative than himself you may act in your own best interest or if you prefer, in the interest of a relative. Generally, it seems that your best interest is that the sale should take place at a higher price since your commission is a percentage of the sale price.

Thus, based on the Torah law concerning the issue of assisting one party and not the other, you may withhold from the buyer the information that the seller is willing to go down and just tell the seller that the buyer agreed to his price and arrange for the sale at the higher price.

However, there is a second issue that needs to be considered and that is whether if you don’t inform the buyer that he could have bought at a lower price you deserve to be paid by the buyer. We note that in general the halacha definitely requires an agent to work for his client and not for himself. Thus, if an agent causes the price to be higher, he may forfeit his entire commission from the buyer since he did not do his job (See Mishpatei Yosher vol. 1 page 285 where we discuss this issue at length.). However, here by withholding information you are not causing the price to be higher but rather you are just failing to lower the price, something that the buyer would not have done but you could have done. Therefore, since the buyer asked you to buy at the seller’s original price perhaps, you will have done your job.

Therefore, if this is considered improper conduct for an agent in your community you must not behave this way since you have an obligation to act as an agent. But if this behavior is considered ethical, you may withhold this information from the buyer and arrange the sale for the seller’s original price.

We must caution you that you must always be scrupulous not to say anything that digresses from the truth.

 

 

 

 

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