The Spurned Shadchan

clip_image002The phone rings. Mrs. Weinberg, a shadchan who often calls to ask shaylos, is on the line.

“I suggested that a local girl meet a bachur who is currently learning in Eretz Yisroel,” Mrs. Weinberg began. “Both families did their research and agreed that it sounded worth pursuing, but they decided to wait until the summer when the bachur would be visiting his family here.”

“When the summer arrived,” Mrs. Weinberg continued, “I called the families back to arrange for the young people to meet. However they told me that someone else suggested the shidduch, and that they are following up through the other shadchan. Are they permitted to cut me out of the arrangements? After all, it was my idea first!”

Does Mrs. Weinberg have a claim? If she does, for how much money and against whom?

SHADCHANUS GELT

Before we discuss these issues, we need to establish whether paying a shadchan is indeed a halachic requirement.

I often find that people feel that one is not required to pay a shadchan. However, this is a misconception, since the halachic sources require paying a shadchan a fee, usually called by its Yiddish name, shadchanus gelt (Rama, Choshen Mishpat 264:7).  Just as you expect to pay your real estate broker, so too, you should assume you will pay the shadchan. (We should be aware that a shadchan’s claim for services rendered has a stronger foundation than a doctor’s fee for an office visit [see Shulchan Aruch, Yoreh Deah 336:2], but that is a topic for a different article.)

Furthermore, there is nothing wrong with a shadchan requesting payment for services rendered just as an attorney or accountant has every right to demand payment for services.

BROKERAGE FEES

Although it sometimes sounds strange, shadchanus fees are halachically categorized as brokerage fees. Just as one pays a real estate agent for arranging a transaction, so too one pays a shadchan for making the arrangements necessary for the engagement and marriage to transpire. Therefore, we must first explain the halachic sources for brokerage fees.

The Gemara (Bava Metzia 63b) mentions the responsibility to pay a broker’s fee to the person who arranges the sale of property or merchandise (Shulchan Aruch Choshen Mishpat 185:1; Rama 87:39). This is a standard business practice, similar to paying a commission to a stockbroker, real estate agent, or personnel recruiter (sometimes called a “headhunter”).

BUT WHAT IF I DIDN’T ASK HIM?

People easily understand that if you approach a broker or agent, you thereby obligate yourself to pay him for his services. However, some people assume that if you did not solicit the service, are not obligated to pay. Does this distinction have any basis?

According to halacha, you are required to pay for any unsolicited benefit that you would usually pay for. Providing unsolicited benefit is called yored lisoch sdei chaveiro shelo birshus, entering someone else’s field without authorization, and the provider of the benefit is referred to simply as the yored (Gemara Bava Metzia 101a).

The case where the Gemara demonstrates this halacha is very instructive: Someone owns a field that he usually plants, but he has not yet planted it this year. Someone else planted the field without asking the owner’s permission and now asks the owner to pay him! Is the planter entitled to compensation for his efforts? The Gemara rules that he is entitled to compensation since you benefit from his work.

HOW MUCH DO YOU OWE THE YORED?

You are required to pay the yored as much as you have benefited. If he performed work for you that would normally require you to hire someone, you must pay him the market rate for hiring someone for this work (Gemara Bava Metzia 76a; Sma, Choshen Mishpat 375:1).

WHY MUST ONE PAY THE SHADCHAN?

When a single person or the parent of a single person asks someone if they know of any marriageable prospects, they are asking them to perform a valuable service on their behalf. This service has a market value, just as any other brokerage or recruiting fee has a market value (Rama Choshen Mishpat 264:7).

WHAT IF YOU DID NOT ASK THE SHADCHAN?

Although there are halachic differences whether you approach the shadchan or the shadchan offers his/her service, in either case you are required to pay the shadchan. The basis for this requirement is as follows:

In this latter instance the shadchan is a yored, since you received benefit from him for an unsolicited service that you would normally pay for (Gra, Choshen Mishpat 87:117). As explained above, you must pay him whatever you would have otherwise paid for that service (Gemara Bava Metzia 76a, 101a).

AM I REQUIRED TO PAY SHADCHONUS TO A FAMILY MEMBER OR CLOSE FRIEND?

This shaylah was discussed hundreds of years ago. A professional shadchan contacted Mr. Reuven suggesting a gentleman he thought appropriate for Mr. Reuven’s widowed sister-in-law. Mr. Reuven was involved in researching the shidduch and in arranging the couple’s meeting. When the couple announced their engagement, Mr. Reuven informed the professional shadchan that he was expecting half the shadchanus gelt, claiming that he was the shadchan who convinced the woman to consider this shidduch. The professional shadchan contended that he was the only shadchan, and that Mr. Reuven was an interested party and not a shadchan. Mr. Reuven countered that the professional had never made direct contact with his sister-in-law but relied exclusively on him (Mr. Reuven) to encourage the shidduch. The matter was referred to Rav Yair Chayim Bachrach, known as the Chavos Yair (after one of the seforim he authored). The rav ruled that Mr. Reuven was indeed a shadchan since he influenced his sister-in-law to pursue the shidduch. He was therefore entitled to half the shadchanus fee even though he was related to one of the principals (Shu’t Chut HaShani #3, quoted in Pischei Tshuvah, Even HaEzer 50:16).

WHO MUST PAY THE SHADCHANUS FEE, THE PARENTS OR THE COUPLE?

Usually the parents of an engaged party pay the shadchanus gelt. Are they required to pay this fee, or is it really the responsibility of the young couple that the parents assume? As we will see, there are halachic ramifications to this question.

The poskim debate this question, making razor-thin distinctions that have major ramifications. Some contend that the responsibility falls upon the young couple since they are the ones who benefit, even though the prevalent custom is that the parents pay (Shu’t Avnei Nezer, Choshen Mishpat #36). Others contend that since the parents usually pay, the shadchan only expects payment from them and therefore he has no claim against the young couple (Halichos Yisroel #3, quoting Eirech Shai, Choshen Mishpat Chapter 185).

There is a major dispute between these approaches. The first opinion holds that if the shadchan is unable to collect from the parents, he may collect from the couple. According to the second opinion, his only claim is against the parents, and if he cannot collect from the parents, he cannot claim his fee from the young couple.

ARE THERE ANY HALACHIC DIFFERENCES WHETHER YOU ASKED THE SHADCHAN, OR HE APPROACHED YOU WITH THE SUGGESTION?

Since we have learned that one must pay the shadchan whether or not one solicited him or her initially or not, does it make any difference whether I asked the shadchan or the shadchan approached me first?

There are several differences in halacha that pertain to whether you solicited the shadchan initially or vice versa, including when you are required to pay the shadchan and whether one violates the mitzvah of bal talin if one fails to pay the shadchan on time.

If you approached or telephoned the shadchan initially, then you have hired him or her to perform a job — in this case to find an appropriate shidduch. If he/she succeeds in his/her mission, then you are required to pay when the job is completed, and you must pay the shadchan as soon as the couple becomes engaged (Shu’t Halichos Yisroel #1-2). Furthermore if you do not pay him/her on time and the shadchan demands payment, you will violate a Torah prohibition called bal talin, not paying a worker on time, a mitzvah we will explain shortly.

However, if you did not hire the shadchan, then you do not violate bal talin if you do not pay him/her on time since the shadchan is not your employee.

Another difference in halacha affected by whether the shadchan was solicited or not, is whether you must pay him or her at the time the couple becomes engaged or at the wedding. If the shadchan solicited you, then the time you are required to pay the shadchan depends on minhag– accepted local custom (Rama Choshen Mishpat 185:10). If the local custom is that people do not pay the shadchan until the wedding, then the shadchanus gelt is considered a marriage expense to be paid then, not an engagement expense. However, if you solicited the shadchan, then you are required to pay the shadchan when his/her job is completed, which is when the couple becomes engaged (Shu’t Halichos Yisroel #4).

BAL TALIN – PAYING WORKERS ON TIME

As explained above, if one hired the shadchan, one must pay him/her on time because of the mitzvah of bal talin.

WHAT IS ON TIME?

There are two deadlines, sunset and daybreak, and one is obligated to pay one’s worker before the first deadline after the job is completed. Therefore, if the worker finished his job before the end of the day, I must pay him by sunset. If he completed the work at night, I must pay him before daybreak (Bava Metzia 111a). (As mentioned above, one violates this prohibition only if the worker demanded payment and the owner refused to pay and there was no understanding or prearrangement of late payment.) According to this approach, if you went to a shadchan who, Baruch Hashem, arranged a successful shidduch, one should make sure to pay him or her immediately after the couple becomes engaged before the next deadline arrives (Shu’t Halichos Yisroel #11). Others contend that one need not pay the shadchan until the wedding unless the custom is otherwise (Rav Elyashiv, introduction to Shu’t Halichos Yisroel).

Still other poskim contend that since the responsibility of paying the shadchan really lies with the marrying couple, there is no violation of bal talin if the shadchan is assuming that the parents are paying his fee since they are technically not required to pay shadchanus gelt.

HOW MUCH MUST I PAY THE SHADCHAN?

One must pay the shadchan whatever is the accepted fee in your community for this service (Pischei Teshuvah, Even HaEzer Chapter 50:16).

DIVIDING THE FEE

What happens if two different shadchanim were involved at different stages of encouraging the shidduch? Are they both entitled to be paid? How does one divide the fee? As we can imagine, this is not a recent shaylah.

An early posek, the Shev Yaakov (Choshen Mishpat #13), discusses the following case: Levi recommended that Reuven’s son meet Shimon’s daughter. After the engagement of the young couple, Gad claimed that he had originally suggested the shidduch to the parties and thus he is entitled to part of the shadchanus.

The Shev Yaakov researched the claims. As it turned out, Gad had indeed originally suggested the shidduch to both parties, but Shimon and his family had no interest in pursuing it. Levi, however, was a more persistent shadchan and convinced Shimon to consider Reuven’s son for his daughter.

Shev Yaakov ruled that Gad was not entitled to any part of the shadchanus fee. He contends that a shadchan is only entitled to a fee when he was involved in the part of the discussion that reached fruition. However in this case, Gad’s proposal did not accomplish anything and therefore he is not considered to be a shadchan.

By a similar reasoning, a real estate agent who showed a prospective client a house, but was unable to interest them in the house, and then a different agent showed them the same house and succeeded in convincing them to purchase the house, the second agent is entitled to the commission according to halacha. (In these instances, if accepted business practice is different it might affect the halacha, which is a topic for a different time.)

Thus, it seems that Mrs. Weinberg is not entitled to any shadchanus fee in our situation, since she was not part of the actual introduction that took place. However, one could argue differently – that she had interested them in the shidduch, and therefore she is entitled to part of the shadchanus gelt. It would seem to me that this latter argument is stronger.

Notwithstanding that the Shev Yaakov ruled that Gad was not entitled to a share of the fee, there are cases in which the shidduch involves several parties and each is entitled to a part of the fee. If Sarah suggested a shidduch, but then felt that Rivkah would be a better go between, and eventually Leah was necessary to get involved and was instrumental in the couple subsequently becoming engaged, all three ladies are considered partial shadchanim according to many poskim. the accepted practice in this case is to divide the accepted shadchanus fee and to award 1/3 to each of the ladies. Other poskim contend that only the person who suggested the shidduch and the one who finalized it are considered shadchanim and they split the fee – but that a go-between who neither suggested a shidduch nor finalized it is not viewed as a shadchan (Shu’t Avnei Nezer, Choshen Mishpat #36).

SOME INTERESTING SHADCHANUS STORIES

A shadchan unsuccessfully attempted to arrange a shidduch between a daughter of the wealthy Weiss family and the son of the wealthy Schwartz family. Although the two families did meet and enjoyed one another, the shidduch did not materialize and the Weiss girl subsequently married someone else. Later, other shadchanim suggested a match between a younger Weiss daughter and the widowed Mr. Schwartz, and the couple became engaged. The original shadchan now claimed that he is entitled to a percentage of the shadchanus gelt, claiming that his involvement in the previous unsuccessful shidduch was instrumental in forging the close relationship between the two families that caused the latter shidduch to happen. Does the original shadchan have a claim?

The parties referred this shaylah to the Avnei Nezer (Choshen Mishpat #36). In a very complicated ruling he contends that the original shadchan might be entitled to a very small percentage of the shadchanus gelt for his role. He suggests a compromise on this basis, but rules that it is uncertain that he is entitled to any part of the fee.

IF A SHADCHAN ASKS FOR A HIGHER THAN TYPICAL FEE, AM I REQUIRED TO PAY IT?

If the shadchan did not provide any unusual shadchanus service, and the fee for a shadchan in your area is fairly standard, then the shadchan is not entitled to the extra fee. However, if there is no standard shadchanus fee in your area, or the shadchan performed a special service, then one must pay the shadchan’s higher fee (see Rama, Choshen Mishpat 335:1 and 264:7; Shach 264:15). Shadchanus is like any other profession where one may not charge significantly above the going rate. However, when there is no fixed accepted amount, then the shadchan is not overcharging since there is no market figure. Similarly, if the shadchan extends him/herself more than is expected, he may command a higher fee since one is paying for the extra service (see Rama 335:1)

According to the Midrash, Moshe Rabbeinu was the shadchan between Klal Yisroel and Hashem at the giving of the Torah. Furthermore, Hashem Himself is indeed the ultimate Shadchan of every marriage. Thus, we should respect the wonderful role of the shadchanim in our midst who are involved in a mitzvah that emulates both Hashem and Moshe.

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