Question
I am a shadchan and I was approached by the relatives of a boy to find him a shidduch. The boy's father is elderly and not so much in touch with reality as far as shidduchim are concerned and he only wanted his son to get engaged to a girl whose parents would obligate themselves to give his son an apartment in Yerushalaim. Even though the boy is very good, nevertheless almost no one gives an apartment in Yerushalaim nowadays since prices are so high. The boy had been in shidduchim for a while and because of his father's unusual demand did not find a shidduch. Therefore, the relatives, in agreement with the boy, asked me to find a shidduch and they would tell the father that the girl's father committed to give an apartment in Yerushalaim even if that was not true and they would somehow arrange for him to get an apartment. I was successful and the boy got engaged and the boy's father paid me. My question is whether I have a right to keep the money since the father who paid me was duped into believing that his desires were met when in fact they were not met.
Answer
The first question we must address is what people pay for when they pay shadchanus, an issue that is important in various sheilos that concern shidduchim.
For example, a recent poseik, the Betseil Hachochmo (passed away 1989) was asked to decide a dispute between two shadchanim where one of the two first proposed the shidduch and the other discussed monetary issues with the two parties. Each claimed that he was the one who really proposed the shidduch. He cites the Pischei Teshuvo (EH 50, 16) who cites the Chukei Derech and in another place (CM 185, 3) cites the Ateres Tzvi who write that the Va'ad Daled Arotsos (the governing body of Greater Polish Jewry in the 16-17 Century) enacted that one only gets paid as a maschil – the one who proposed the shidduch – if he discusses monetary issues with the parties.
However, the Betseil Hachochmo ruled that since this is no longer the custom, a shadchan is considered to be a maschil even if he never spoke about money. He notes that in many cases the parties don't even want the shadchan to become involved in monetary issues. Therefore, even though the Va'ad Daled Arotsos enacted that the one who only proposed the shidduch does not get paid as a shadchan, nowadays he does get paid because a shadchan is paid for his role in getting the couple engaged and not for obtaining a dowry.
Similarly, the Maharshag (3, 103) notes that this enactment is no longer relevant because in earlier times the dowry was a central feature of a shidduch but nowadays, that is no longer the case. In earlier times the amount that was paid to a shadchan was a percentage of the dowry, whereas nowadays, the amount that is paid is the same whether there is a large dowry or none at all.
Thus, today the payment that the shadchan receives is for bringing the sides to their engagement.
Based on this, the Terumas Hadeshen (2, 85) whose ruling is cited by the Ramo (185, 10), rules that if, after the engagement is announced, the sides break the engagement, the shadchan is entitled to keep the money he was paid, since he completed the job that he was paid for. Since the amount one pays nowadays is the same regardless of the involvement of the shadchan in monetary discussions and regardless of whether there is a dowry or not, the only thing the shadchan is paid for is for bringing the parties to an engagement.
Therefore, you completed your job and the father got what he paid for. The only question is that perhaps since the father insisted that his son receive a commitment for an apartment in Yerushalaim, we should consider this as a condition in his employing you, the shadchan. However, for a number of reasons this does not affect you at all.
First, even if the father had told you that he is hiring you on condition that you obtain a commitment for an apartment, you can still keep his payment since his son does not want this condition. This can be derived from a dispute in the Mishna (Gittin 75B) concerning conditions. The Mishna records a dispute between Rabbon Shimon ben Gamliel (RSBG) and the Rabbonon have a dispute concerning a person who divorced his wife on condition that she assist his father for two years and before the two years were up his father says he no longer desires the services of his former daughter-in-law.
The Rabbonon rule that in this case the get is not valid because they understand that the former husband's motive was to give his former wife a hard time. Since this did not happen his condition was not fulfilled and the get is invalid. RSBG disagrees because he understands that the husband's motive was to help his father, and since the father waived his benefit, the get is valid.
Thus, we see that what is important is not that the condition be fulfilled literally but that the motive of the condition is fulfilled.
In your situation there are two plausible explanations for the father's insistence that his son be given an apartment in Yerushalaim. One reason is that he believes it is in his son's interest that this condition be fulfilled. If this is the case your case is identical to RSBG's position and if the son waives his benefit because he feels it is better just to get engaged, the father's condition has been fulfilled, because he just wanted to help his son and his son decided he is better off without this condition.
The second possible motive of the father is that he doesn't want his son to ask him later for money to buy an apartment. However, that was taken care of as well since the family arranged that the son will have an apartment. This is also an unlikely explanation since children don't ask their parents for an apartment in Yerushalaim and this is especially true after the son told his father that he got one from his father-in-law.
A second reason you do not have to be concerned is because even if we would say that you did not fulfill the father's condition you would still be entitled to the money that you received. The reason is because when a person is asked to serve as a shadchan he is being hired as an employee. Thus, if the father asked you to find a shidduch for his son or the son or other relatives asked you to find a shidduch on his behalf, and subsequently the father asked you to do things that a shadchan does, we consider it as if the father hired you to serve as a shadchan.
Therefore, if we say that because the father insisted that his son receive an apartment you violated an essential condition of your employment and the effect would be that you are not entitled to a salary as an employee. However, even if you are not entitled to a salary as an employee you are still entitled to payment as a yoreid-one who worked without being hired to do the job since in any case you worked. The amount you are entitled to be paid as a yoreid is the amount that people pay for the benefit of having their child becoming engaged which is the amount that people pay a shadchan – which is what you were paid.
Even if the father insists that this is not what he wants and therefore, he had no benefit from your actions, nevertheless we who know the truth know that he really did benefit and he just has an error in judgement. Therefore, even if you are not entitled to your pay as an employee you are entitled as a yoreid. Therefore, we have a second reason why you are entitled to what you were paid
Still another reason you do not need to be concerned is because the father never imposed this condition on you. In order to impose a condition that can undo an action, the condition generally must be stated explicitly. The only exception is if it is absolutely clear that the person's action is conditional.
For example, the Gemara (Kiddushin 49B) discusses a case where a person told some people that he is selling his property because he is moving to Eretz Yisroeil but at the time he sold his assets, he did not mention that he is only selling because he is moving. The Gemara rules that since he did not say at the time of the sale that it is conditional on his successful move, the sale is unconditional. Even if the seller mentions at the time of the sale that he is selling because he is moving to Eretz Yisroeil, many Rishonim including Rashi (and this is the ruling of the Ramo (207, 3)) maintain that only a sale of land is void because besides the seller's indication that he is only selling because he wishes to move, it is very likely that the reason he is selling is because of his planned move since people don't normally sell off their source of income unless they move.
In your situation where the father never conditioned his payment on his son's receiving an apartment in Yerushalaim, he has to pay you as his employee since prior statements do not constitute a condition.
In conclusion: For many reasons you may keep the money that the boy's father paid you.
