Question
I live in Chutz Lo'oretz and I wanted to buy a home in Eretz Yisroeil. An acquaintance of mine who lives in Eretz Yisroeil and is a real estate agent was aware of my interest. When he began talking to me about available properties, I told him that he is welcome to offer me a home but he should be aware that I will not pay him a fee but he can collect from the seller. He did not say anything at the time and later offered me a home that I purchased. After he offered me the house even though he was actively involved in ensuring that the sale would take place I did not repeat my initial assertion. As I recall, he did not ask me for money initially but he now claims that he did. In any case I certainly did not pay him anything. Now, quite a while later, he is demanding his fee from me. Do I owe him anything since before he worked, I told him that I will not pay him and he did not say anything?
Answer
As we wrote in the past, when one performs work for someone else there are two possible reasons he may be entitled to be paid: one is as an employee, and the other is as a yoreid-one who performed work but was not hired. Since you told him initially that you will not pay him, initially the agent certainly did not have the status of an employee. However, perhaps he had the status of a yoreid. This is plausible since one must pay a yoreid because one must pay someone who benefits him, and here you were clearly the beneficiary of the agent's efforts.
We will begin by studying two responsa that deal with similar situations. One must be very careful when drawing proof from seemingly analogous situations, so we will study these responsa carefully.
One responsum that dealt with a similar situation was by the Pri Tevuo (1, 58 and cited by Pischei Teshuvo 264, 3). In his situation, there was a major blaze in a town that threatened the property of many people. One of the residents, B, who thought he had two closets that needed to be removed from his property, paid gentiles ten coins to remove them. However, before B's workers started, his wife had already saved one of the closets. Therefore, the workers only removed one closet. B asked them to return five coins but they refused. Since he had no hope of recovering his five coins, B offered the workers' service to his neighbor A who also had a closet that needed to be removed. Realizing the situation, A told B that he will not pay and that halachically he is not required to pay because, while he will benefit from the work, B will not lose anything since he had no way to recover the money from the workers. He claimed that it is a case of ze nehene ve ze lo choseir and moreover it is considered midas sedom (sedom-like behavior) for B to not save A's closet. B went ahead and told the workers to remove A's closet.
The Pri Tevuo ruled that, his disclaimer notwithstanding, A is obligated to pay B since B has the status of a yoreid since at the end of the day A benefited from B's workers. He explains that A's argument that B did not suffer any loss is not relevant because B might have found someone else who needed their services.
He proves that one must pay even if he announced initially that he will not pay, from a ruling of the Maharik (res 4) that is cited by the Ramo (163, 6). In the Maharik's case, gentiles had taken several innocent residents of Regensburg captive. The community of Regensburg asked the neighboring communities for help to pay to remove the threat of the gentiles, but they refused since at the moment they were not threatened. The Maharik ruled that they were nevertheless required to share in the cost since, even though they were not directly benefiting from the expense at that moment, it was to their benefit to spend the money because otherwise in the future the gentiles will cause them trouble.
Thus, we see that one must pay for a benefit he receives even if he informs his benefactor before the benefactor did anything on his behalf that he will not pay him.
A second poseik who discussed this issue is the Maharya Halevi (res 151). In his case an agent helped someone sell his wood. However, before the agent completed the sale, the owner of the wood told the agent that he should not go through with the sale unless he will do it for free. The Maharya acknowledges that the reason to pay the agent is because he was a yoreid, but without presenting any proof he argues that one can't force the wood owner to pay anything since the owner of the wood told the agent not to sell if he wants money. He ruled that since one cannot force someone to use his services and pay for them the owner of the wood does not owe anything to the agent.
Thus, everyone agrees that one who worked after being told that he will not be paid has the status of a yoreid. They seem to disagree whether one is entitled to be paid as a yoreid if he was told that he will not be paid.
The issue raised by the Maharya, that we cannot force someone to take a service and then pay for it, is an issue that applies to every case of a yoreid since in every case, the yoreid works without being asked to do so. For example, if a renter on his own volition improves his landlord's property, the renter can ask the landlord to pay him for improving his property as a yoreid.
However, we must address the contention of the Maharya: how can we force someone to pay for something that he did not ask for? Actually, as the Nesivos (375, 1) writes, Chazal addressed this issue and said that the landlord may avoid paying for the tenant's improvement by telling the tenant to remove the improvement. For example, if a tenant installed air conditioning and the landlord does not want to pay for it, he can tell the tenant to remove the air conditioners when he departs.
However, there are certain improvements, such as painting, that one cannot remove. In this case the Nesivos (306, 7) rules that since the improvement cannot be removed the landlord must pay for the improvement.
The Chazon Ish (BK 22, 6 beg wo. uve'ikor) asks why, just because the tenant decided to paint his apartment, can we obligate the landlord to pay if he is not interested in the tenant's painting?
The Chazon Ish rules that beis din must be wise and decide if the landlord is being honest in claiming that he is not interested in his tenant's painting. If beis din is convinced that he is being honest, he will not have to pay. But if he is merely exploiting the tenant, he does have to pay since he really is benefiting from the tenant's improvement. (See Mishpatei Yosher vol. 2, part 1 chapter 3, seif 15 where this is discussed at length.)
Based on this principle of the Chazon Ish, it is plausible that there is no dispute between the Maharya and the Pri Tevuo. In the case of the Pri Tevuo the owner of the closet certainly benefited from B's workers and he did not even claim that he did not benefit. However, in the case of the Maharya it could be that the owner of the wood really did not need the agent's services.
In any case, in your situation you definitely benefited from the agent's efforts on your behalf and you used his services after he initially told you about the property. You did not buy it on your own and perhaps you wouldn't have succeeded even if you tried.
Therefore, the result of your announcing that you will not pay him is only that he was not your employee, but he is still entitled to be paid as a yoreid. There is a difference between the two because if there are two fees that are charged by paid agents, the agent will only be entitled to the smaller amount.
However, there is a second issue that must be addressed that results from your announcement that you will not pay the agent. Perhaps upon hearing this, the agent initially accepted to work for free as you specified. Even though we (Ketsos (12, 1) and many others) maintain that for mechilo (a waiver) to be effective the one who waives payment, must verbally express his mechilo, the Nesivos (12, 5) rules that this only applies to an existing obligation but not to a future obligation.
For example, if at the time that A told B to join him for dinner he did not intend to ask for payment for the meal, then, even though A never said he did not expect to be paid, A cannot later ask to be paid, since at the time he made his offer, he actually gave the meal as a present. Similarly, if at the time the agent worked, he did not intend to be paid, he may not later ask to be paid since he already performed the work on your behalf for free.
Therefore, the agent must be made aware that if he intended to work without pay, he is not allowed to charge for his work. If the case comes to beis din, they should investigate further to determine the truth.
In conclusion: The fact that you said that you will not pay does not in itself free you from paying but it could have caused the agent to have intended to work for free in which case you would not have to pay. However, that requires investigation.
