Question
About a year ago I was asked by an acquaintance to find a suitable shidduch for his daughter. After finding out a lot of information about his daughter I thought of someone whom I thought would be suitable. However, when I brought up the name, both parties rejected the shidduch. Recently, another person who was unaware of my proposal came up with the same idea and proposed this shidduch and convinced the two sides to accept the proposal. Everything worked out and they got engaged. Am I entitled to payment since I was the one who first proposed the shidduch which eventually was successful?
Answer
There are two reasons you might be entitled to payment. The first possibility is because you were asked to propose a shidduch, and you did so. Therefore, maybe the father of the girl is obligated to pay you since he asked you to perform a task which you did and verbal employment agreements are binding.
A very similar question was posed to the Chavos Yo'ir (res 154). In his situation, A hired B for twenty coins to petition the government on A's behalf. B worked hard for the success of his petition but his efforts failed. The Chavos Yo'ir ruled that B was entitled to the twenty coins he was promised since he did his job and there was no stipulation that his pay is conditioned on success. Therefore, it seems that he would rule that you are entitled to the amount people pay for proposing a shidduch, since a customary rate has the same status as an agreed-upon rate.
The issue whether you are entitled to remuneration because you did what you were hired to do is a specific instance of a general question: whether a person who performed a task that he was hired to perform but his efforts did not achieve the goal that he was hired for, is entitled to remuneration if the outcome was not addressed at the time of hiring.
A ruling of the Yerushalmi can guide us to an answer. The Yerushalmi (Avodo Zoro 5, 1) rules that one who was hired to bring wine for an ill person and tried his best but failed to bring wine, even it is not his fault, is not entitled to remuneration. However, if he was hired to bring wine from a specific place but there was no wine there, he is entitled to remuneration. The Machane Efraim (Sechirus 8) explains that the rationale of the Yerushalmi is that if the messenger was hired simply to bring wine, his task was to bring wine. Therefore, if he did not bring wine, he did not perform his task and he is not entitled to payment. However, if the messenger was hired to bring wine from a specific place and there was no wine there, his entire task was to go to the place. While the employer was interested in the wine, however, his task was to go to the specified place which he did. Therefore, he is entitled to payment despite his failure to bring wine.
Based on the above, since the custom nowadays is to pay for proposing a shidduch only if it is successful, the implication is that a shadchan's task is to propose a successful shidduch. Therefore, until your proposal was crowned with success you were not entitled to payment. We note that the Chavos Yo'ir does not disagree. The reason his ruling is no longer applicable is because the nature of a shadchan's job today is not the same as a lobbyist in his time, but the principle of the law is unchanged.
Based on the above, the issue that must be clarified is whether you are entitled to be paid since your proposal was successful, not based on your actual proposal of the shidduch, but because the new shadchan proposed your shidduch and successfully brought it to fruition. We should mention that the issue concerns the amount that one is paid for proposing a shidduch, known as a maschil, which by custom is a third of the entire amount that one is paid for a successful shidduch
This issue has come up many times and several of the leading poskim have ruled on this. A basic responsum on this issue was written by the Shev Yacov (CM 13). He claims he has proof (others disagree) that if one person proposed a shidduch but the parties rejected the offer, and another individual proposed the same shidduch without knowledge of the first proposal and was successful, the second individual is entitled to the entire amount that is paid for a successful shidduch and the one who originally proposed the shidduch is not entitled to be paid anything. The reason the original proposer is not entitled to pay is because he was unsuccessful and the second shadchan did not need his work.
We note that his understanding is that even though there are three parts of a shidduch: maschil (one who proposes a shidduch), emtso'ei (one who handles the meetings) and gomeir (one who brings the match to a successful conclusion) and each is paid one-third of the entire amount, however the true task of a shadchan is to bring about an engagement. Therefore, in your case, the second shadchan who brought the shidduch to a successful conclusion without the help of anyone else deserves the entire amount. Following this rationale, the only time there is a maschil and an emtso’ei is if the gomeir needs their efforts and then each is entitled to a third of the entire amount.
Rav Shlomo Kluger (Chochmas Shlomo CM 185, 6) in principle agrees with the Shev Yacov that one who did not contribute to the final success is not entitled to remuneration. However, he contends that even when the first proposal is rejected it often contributes to the final success of the proposal. Therefore, he rules that the dayan must carefully investigate the impact of the first proposal on the final success. He should award the first proposer an amount commensurate not with his efforts but with the impact of his efforts on the final outcome.
It seems that the Shev Yacov in theory agrees with Rav Shlomo Kluger. This can be seen from his ruling that if the first proposer proposed the match and his idea was accepted but then failed to continue, he is entitled to a share in the shadchanus because it is possible that if not for his efforts the proposal of the second shadchan would not have been successful. He just maintains that if the first proposer's suggestion was rejected it cannot be that his proposal contributed to the eventual success of the shidduch. This is the point of contention between the Shev Yacov and Rav Shlomo Kluger.
Other poskim take sides in this dispute. For example, the Erech Shai (CM 185, 10) sides with the Shev Yacov and the Levushei Mordechai (res CM 1, 14) agrees with Rav Shlomo Kluger.
Rav Yedidya Taya Weill (res 9) has a different approach. He understands that there are three independent tasks that shadchanim do: the task of a maschil, the task of an emtso’ei and the task of a gomeir. The fact that the first shadchan's proposal was not successful does not affect the fact that he was the first person to propose the shidduch. Therefore, he is entitled to one third of the total amount that shadchanim are paid since that is the standard amount that is paid to a maschil of a successful shidduch. The other poskim do not understand that there are three independent tasks but rather that there is one payment for a successful shidduch. If three people contribute to the joint effort, then each is paid on the basis of his contribution to the successful outcome. Therefore, if the one who first proposed the shidduch did not contribute to the shidduch's success he is not entitled to any payment.
Another poseik who has a different approach is Rav Moshe Feinstein (CM 1, 49). He agrees with the above poskim in case the first shadchan suggested the shidduch by himself without being asked to suggest someone by one of the parties. The reason he is not entitled to pay if a second shadchan independently suggests the shidduch is because one who works voluntarily is a yoreid, and a yoreid is only paid for the benefit that is derived from his efforts. Therefore, if his efforts were not beneficial, he is not entitled to remuneration. However, if one was asked to suggest a shidduch, Rav Moshe maintains that since he was hired to propose a shidduch, he is entitled to remuneration since he did the job he was hired to do.
Rav Moshe expresses his amazement that the other poskim fail to differentiate between one who volunteers a suggestion and one who is asked to propose a shidduch.
We can explain the other poskim by noting that since even though one who is asked to propose a shidduch has the status of an employee, he is only entitled to be paid the amount that is customarily paid to employees. These poskim maintain, as we wrote at the beginning, that it is not customary to pay for unsuccessful suggestions. Therefore, in the absence of a specific statement by the employer that he will pay even if the shadchan's effort does not bear fruit, they maintain that even one who is asked to propose a shidduch is not entitled to remuneration if his proposal is not successful.
In conclusion: If your suggestion did not affect the successful conclusion of the shidduch you are not entitled to remuneration since only Rav Y. T. Weill maintains that you are entitled to a third. If your suggestion did help bring about the final success, according to Rav Shlomo Kluger and many other others you are entitled to a portion of the amount that is paid to the maschil based on the impact your proposal had on the final outcome.
