Siman 185

The broker who takes items and merchandise from a homeowner and sells them and takes his fee, his law is not like a partner but rather like an agent. If he was defrauded even by less than a sixth, his transaction is void. He is forbidden to deviate from the will of the owners, and if he deviated, he pays for what he caused to be lost if it is impossible to return the purchase. He cannot say, "I acted properly because the purchase was not worth more," for in any case he must not deviate from the will of the owners. Therefore, if Reuven gave an item to a broker and said to him, "Sell this for me and do not sell it for less than one hundred zuz," and he went and sold it for fifty, he pays the fifty from his own home, even if it is only worth fifty; for he is obligated to either restore his item to him or pay him from his home [Netivot HaMishpat]. If he sold it for two hundred, it all belongs to the homeowner if it is a matter that does not have a fixed price, for his law is like an agent. Even if the homeowner knew it was worth two hundred and because of the pressure of his situation he permitted him to sell for a maneh, nevertheless, his intent was not to transfer the surplus to the broker when he finds someone who will give it to him. If it is a matter that has a fixed price, they divide it, as was written regarding an agent in siman 182 [Sma].

When a homeowner gives an object to an agent or a broker to sell it for such and such, he cannot withhold it for himself even for the same price that the owner authorized him to sell. And if he withheld it, it is nothing, for a person cannot transfer ownership to himself, as a sale is an extraction from the domain of the seller to the domain of the buyer, and this has not left the domain of the seller, for his hand is as the hand of the homeowner. Nevertheless, if he gave him the object to sell it for such and such, and the agent or the broker said, even after the object came into his hand: "Here is such and such for it and I will withhold it for myself," if he was appeased by this and said "Yes," or "Let it be yours," or "Let it be according to your words," or "Let it be so," the homeowner cannot retract. And even though when he gave him the object he did not give it to him with this intent, and there is no meshikhah here, in truth, immediately when he consented, this person left his agency and became a buyer and acquired the object, and behold the object is resting in the domain of the buyer. For in all acquisitions, it is not necessary for the seller to deliver from hand to hand to the buyer; rather, since by his command he pulled or lifted or performed another kinyan, it is a good kinyan. And here too, by his command, he left his agency and became a buyer and merited it while the object was in his domain. And also the agent cannot retract, and their law is like other sellers and buyers. But if he was not appeased by this, it is nothing. And when he was appeased, even if he sold it afterwards for much more, the homeowner has no claim against him, and everything belongs to the broker. And some say that it is not specifically that he was appeased and said "Yes," but even if he remained silent, silence is like an admission. And one only needs to know the manner of his silence, if it was as an agreement to his words, or perhaps because the homeowner saw that the broker was giving such a price, presumably it is worth more. And if he said to the broker: "Sell for such and such, and if you sell for more than this, the remainder shall be yours," even though the broker remained silent, he merited the remainder, for presumably he agreed to his words, and with this intent he took it into his hand. And he becomes because of this a shomer sakhar, even if he does not take a wage for the sale when there is no remainder, and even if he did not take a remainder at all. But for accidents he is not liable. And that which will be explained in siman 186 in such a case, that his law is like a buyer and he is liable for accidents, that is regarding a buyer who took it at a fixed price to sell it when the opportunity arises for him, and the law of a broker is not upon him, even though this is like the work of a broker.

Regarding the agency of a get, the law is that if the husband appointed an agent to deliver a get to his wife, and before he delivered the get to her, she appointed him as an agent for receipt on her behalf, it is not a get, as is written in Even HaEzer siman 141. And thus the sages, of blessed memory, spoke regarding its invalidity, because the agency did not return to the husband; that is to say, any agent who cannot return to his sender to say "I have performed your agency" before he was appointed as an agent for another in this matter is not an agent. It was ruled as halakha there that this is a legal doubt. From this, there is one who wished to say that also in an agency of money there is a legal doubt in such a case, such as Reuven who sent an object via Shimon to deliver it to Levi so that he may acquire it, and before he delivered it to Levi, Levi said to him, "Acquire it on my behalf," Levi has not acquired it [Shach]. But the later authorities disagree on this, for only regarding a get is the husband obligated to deliver it from his hand to her hand, and if he says to her, "Pick up your get from the ground," it is not a get; therefore, also his agent, who is like himself, must deliver it into her hand or into the hand of her agent or into her domain. This is not the case regarding money [Netivot HaMishpat], for it is no worse than if he had thrown the object on the ground and Levi's agent came and took it. There is some proof for this from what is written in section 2 [see Rashi, Gittin 24a, s.v. "ve-ha" and in the Gemara there, which asks from "pick up your get," etc., rather that he said to him "be," etc., and it asks "but it did not return," etc., and the law requires further study].

If there is a contradiction between them, where Reuven says, "I told you to sell it for one hundred," and the middleman says, "You told me fifty, and thus I sold it," the middleman takes a biblical oath, for he has made a partial admission. If he already gave him the fifty, or if he said to him, "Here is the fifty," he takes a hesset oath that he fulfilled his mission, and the buyer has acquired it. There is no difference in this regard whether it was worth one hundred or fifty, as has been explained. And such is the law when there was no fixed amount between them for how much he should sell it, but rather he says that he took more than what he said. And a hesset oath can be reversed, as I wrote in siman 87.

When there is a denial between them and the sarsur or the messenger does not wish to swear, and similarly if the messenger deviated from the intent of the sender, if it is within the power of the sender to receive the object from the hand of the buyer, some say that if the buyer only knew that this object belongs to Reuven and that the one who sold it to him is a sarsur, he must return the object to the owners, and we do not say "the burden of proof is on the claimant" since it is clarified that the object belongs to the sender and the buyer knew of this, he must return it [Shach]. And even though the messenger or the sarsur denies him, he is not like a witness since he is an interested party [Sma]. And the claim of the seller is a certain claim and that of the buyer is a doubtful claim, and a doubt does not remove a certainty [ibid.], only that the buyer has the ability to impose an acceptance upon him if he did not give permission to the messenger or to the sarsur to sell it according to how he sold it or that he consented afterwards to his actions and now retracts. And some say that the buyer does not need to return it even when the messenger or the sarsur admits to the words of the seller, because he can say "there is a conspiracy between you" or "you made him a messenger whether for benefit or for detriment." And the first opinion holds that since he receives payment for his effort, we do not say this reasoning, for this is only said if he acts for free, but not when he acts for payment [ibid.], and we do not fear a conspiracy. However, when he did not know at the time he bought that the object belongs to this sender, even if he knew that the one selling it to him is only a messenger, nevertheless he does not need to return it even according to the first opinion, for he can say: "I thought that since you did not tell me that you are the messenger of so-and-so, presumably you knew that your sender would agree to what you do, for if not so, you would have mentioned it to me so that I would be concerned lest your sender not consent; and since you did not mention it, my purchase stands and you judge with him" [Shach].

And if there is no contradiction between the broker and the owner, but rather he does not desire the sale that the broker made, and he gave it to him without specification and did not set a price for him, and the broker informed the buyer that this object or this land belongs to Reuven, and after the buyer purchased, the seller said "I do not wish to sell for this amount," the buyer returns the purchase. For he did not set a price for him to sell for such and such. And even according to the "there are those who say" in the previous section the law is so, for there we concern ourselves with a conspiracy because it is unlikely that the agent would deviate from the mind of his sender, but not in this case where there is no contradiction between them. And also we do not concern ourselves that he made him an agent for both benefit and detriment since he clarifies that he spoke to him without specification, or the broker told him so, that the seller did not set a price for him. And even if he was not defrauded at all, the owner can retract, for if he was defrauded, even without this the sale is void since he did not say to him "whether for benefit or for detriment." [As is evident from the Rambam, chapter 2 of Hilkhot Shluqin, and in the Kesef Mishneh and Maggid Mishneh there]. And this is not like the one who disagrees in this. And specifically when he said nothing to him at the time he gave him the object to sell, but if he said to him "sell for whatever you find," the seller cannot retract, and what the agent did is done. And nevertheless, when he was defrauded significantly, he can retract, for certainly his intention was not that even with significant fraud the sale should stand. [Kesef Mishneh and Maggid Mishneh there]. And it appears to me that the measure of his fraud is like the owner himself who sold, and up to a sixth his sale stands, and more than a sixth his sale is void.

Every sarsar takes his brokerage fee even if he did not stipulate with him beforehand, for such is the default. Therefore, a sarsar from whose hand the object was lost or stolen, even at the time of travel, is liable to pay because he is a nosei sachar. And even though he has not yet sold the object, and perhaps he will not sell it and will not take a fee, nevertheless he is a shomer sachar [Sma]. And all the more so when he sold the object and the money was lost, that he is liable to pay. However, he is exempt from accidents, as I wrote in section 2. And when the object is lost from his hand, the sarsar shall swear that it is not in his possession and how much it was worth, and he shall pay the value of its worth. And so too, Reuven who gave a ring to sell and there was a precious stone in it, and the sarsar lost the precious stone from the ring, he shall swear that it is not in his possession and how much the stone was worth and he shall pay. And Reuven does not need to swear if the stone was fixed well in the ring, for one does not swear on a claim of doubt [Sma], and he only has against him a standard acceptance. And even if the object or the ring belonged to a non-Jew and he claims from Reuven more than its value, nevertheless the sarsar does not need to pay except for the value of its worth, as I wrote in siman 72. And regarding a shaliach, if he stipulated with him to give him a fee, he is a shomer sachar, and if he did not stipulate with him, he is a shomer chinam. And one who sent his shaliach to do something for him or to bring something for him to a certain place and did not stipulate with him to give him a fee, and in the meantime he sent him a gift, he is a shomer sachar. And specifically when there is proof that he sent him the gift because of the mission, such as if he was not accustomed to giving him gifts until now, or even if he was accustomed but there is clear proof that because of the mission he gave him the gift; but without this, he is not a shomer sachar [Taz].

One who gives his vessels to a middleman to pawn them for him, and he said, "I do not know where I pawned them," it is negligence and he is liable to pay what they are worth beyond what he received for them, for any "I do not know" is negligence, and even a shomer chinam is liable. And if he said that he pawned them with so-and-so and he denies it, he is liable to pay, for he should have pawned them with witnesses or taken from him a document that he pawned them with him. And if the owner of the object said to him, "Go and pawn them in the hand of so-and-so," and he did so, and afterward that so-and-so denied it, the middleman is exempt; since he did not tell him to pawn it with him with witnesses, he surely trusted him, and the middleman is not liable even when he takes payment. And likewise, if he commanded him to pawn with a certain gentile and he denied it, he is also exempt [Sma].

A broker who gave a vessel to this person who wished to purchase it, and he took it to examine it, and the examiner did not want to return it—some say that the broker is liable, for a shomer sachar is liable for matters close to an oness if it is not a complete oness [Sma], as even theft is close to an oness and the Torah made him liable. And there are those who hesitate regarding this, for this is like a complete oness if he gave it to a reliable man. And if the owner of the object told him to give it to a certain person to examine it, he is exempt, as was written regarding a mashkon. And a broker should not sell on credit unless he took permission from the owner of the object, for every credit sale is a doubt whether the buyer will pay or not. Therefore, when he acted on his own and the buyer did not pay, even if he was assessed as reliable, the broker is liable to pay. But if he gave him permission to give on credit, he is exempt if he gave it to a man who was reliable in appearance; but if he gave it to a man who is known to all as not reliable, it is complete negligence and he is liable even when he acts for free [it appears to me].

The sarsur takes his brokerage fee even if the owner of the object later sold it himself to this buyer; nevertheless, since he revealed the buyer to him, and to the buyer he revealed that he is able to buy this house or this field or this object, he takes his fee according to the custom. Not only that, but even if Reuven had a house to sell and Shimon came and acted as a sarsur for him to sell it to Levi, and Reuven said to him, "Levi is my enemy and I will not sell it to him," or some other pretext as to why it is not his will to sell to him, and the sarsur went away, and afterwards he sold it to Levi, he is obligated to give Shimon his brokerage fee. And even if there was afterwards another sarsur who finalized the matter, he must give Shimon a portion because he was the one who started it. And if Shimon claims, "You consented in your heart immediately when I told you to sell to Levi, and you pushed me away in order to cause me to lose my brokerage fee in its entirety, and your intention was to bring in another man for the brokerage so that he would take a portion of this," even though his claim is good, nevertheless he cannot obligate Reuven in either money or an oath, even if it was sold according to the details that he proposed, for this is not a claim that can be sued in a beit din of man. However, if the matter is indeed so, Reuven has not done well and is liable in the laws of Heaven, for why should he cause Shimon to lose for the sake of another's benefit? And so is the law regarding shadchanut. And the brokerage fee must be paid after the conclusion of the sale and after the ratifications, and if the ratifications are in the secular courts, one need not pay before the conclusion of the ratification from the secular courts. And the sarsur cannot say that they should place it in escrow until after the ratification, for why should they do so since they are not obligated to pay before the conclusion of the ratifications? And when there was a sarsur for the seller and the buyer, they pay the brokerage fee between the two of them. And if he was for one and not for the other, he pays him half of it. And if there were two sarsurs, they shall divide it between them as will be explained regarding shadchanut. And if it appears that one was the primary one through whom the matter was finalized, he takes a larger portion than the second. And the fee for brokerage is according to the custom of the city.

The shadchan is like a broker, and if he wants them to pay him immediately after the tena'im and the parties do not want to pay until after the marriage, it depends on the custom of the land. However, in all our regions the simple custom is to pay shadchanut immediately after the writing of the tena'im. Therefore, even if the shidduch was cancelled afterward, and even if both sides agreed to its cancellation, nevertheless the shadchan has not lost his fee [Taz], for according to our custom the conclusion of the matter is at the time of the tena'im, and what does it matter to the shadchan what happens afterward? Behold, he has concluded the matter. And even if they had not yet paid him, they must pay him. To what is this comparable? To a place where they practiced to collect after the marriage and he divorced his wife, for they certainly must pay him. However, it is possible to say that the reason the custom is to pay after the tena'im is because they rely on the fact that the shidduch will not be broken; but if it is broken, they do not have to pay, and it requires further study for the law. And in a place where there is no custom, they shall pay after the marriage, for the primary conclusion is the marriage. Our teacher, the Rema, wrote that in a place where one does not need to pay him until the marriage, if they retracted and the shidduch was cancelled, the parties are exempt from paying him his fee unless they stipulated explicitly on the condition that they reach an agreement [meaning, that they write the tena'im], and then they must pay him immediately even if they retract. Thus far his words. And it is explicitly implied from his wording that in our case they are obligated to pay even when the shidduch is cancelled, as I wrote before, and not like our doubt in this matter. And in a place where the parties are exempt from paying, even if they took a fine from the other side, they do not need to give the shadchan anything; and even though the fine came about through the shidduch, nevertheless this is not a profit, but rather he is taking the payment for his embarrassment [Sma]. And according to this, in brokerage in such a case, one must pay the broker according to what he profited from what he took from the other side in its cancellation, if the broker has not yet received his brokerage fee [it appears to me]. And see at the end of section 13.

When there are many shadchanim or brokers, there are no fixed laws in this matter, and in the regulations it is found that the one who starts and the one who finishes divide it between them, and the middle ones shall take nothing; for according to the law, the primary one is the one who finishes, and the one who starts, since he proposed the matter, is worthy to receive his reward as well, but the middle one, what did he do? Nevertheless, the world is accustomed to give some portion also to the middle one. And one is called the "starter" who proposed the shidduch or the business in such a way that before his proposal it did not occur to the parties to connect, and then even if he did not deal with the details, he is called the starter. But if even without him the matter was known, he is not a starter at all, unless he entered into the details and in some of the details he brought about an agreement between them; and even if afterwards there was another person who finished, nevertheless he is called a starter because he dealt with the details. And if even one of his details was not fulfilled, he is not a starter at all. And it is proper for every God-fearing person, when one proposes before him a shidduch or a business and he sees that through this it is possible to finish, he should not bring another into this even if the other is his friend or his relative, unless he sees that through this one alone the matter will not be finished according to his will. And even so, if they brought another in even though it was not proper, the shadchan or the broker has no claim against him. And in general, it is impossible for there to be fixed laws in these matters, and the judges shall judge righteously according to what their eyes see and the understanding of their hearts. And the parties, when they have deposited the shadchanut or the brokerage fees, are fit to testify who was the starter and who was the finisher and the like, as they are not interested parties in the testimony, unless one of the shadchanim is a relative and is disqualified from testimony on account of his kinship.

Regarding the fee for shadchanut, it has been the established custom in our entire country for many generations to give six percent of the larger amount, meaning from the dowry of the side that gives more. Even when one gives the equivalent of money, and even when one gives securities to be paid after a time, they must also give from this. Each side shall give three percent. There are places where they practiced giving five percent, two and a half from each side. There are places where they practiced that if a river does not separate between the in-laws, they give only four percent. Regarding the fee for brokerage of houses, lands, and merchandise, there is no established custom in the entire country equally, and every place follows its custom. There are those who add, besides the fixed shadchanut and brokerage, also a gift, and it is called a "good deed," and "he who has a generous eye shall be blessed" for he gave of his bread to the poor, and unto him he lifts up his soul, especially if this man's livelihood is from this. Regarding the matter of brokerage, one of the great authorities ruled that if the transaction was completed and afterwards the seller and the buyer cancelled the transaction of their own will, nevertheless, they must pay the broker's fee since the transaction was completed [S.A.]. This is provided that no new developments occurred in the matter through which the transaction was cancelled [it appears to me].