The Unpaid Agent

Question:

I recently bought an apartment. A real estate agent made the initial contact between the contractor and myself but she was never available to help with subsequent issues when I needed her. Months after the sale went through, she contacted me and said she had heard that I had eventually bought the apartment and wants her commission. I was shocked to hear her claim, as I was extremely unhappy with her poor service as an agent. I had expected the agent to help with financial negotiations.

She said that I had verbally agreed to 1% and that her husband, who was there at the time, would back her up on this point. I remember the conversation slightly differently: I recall her asking for 1.5% and my not agreeing to that amount. Nor do I remember agreeing to 1%, but it is possible.

I checked around and found that the rates for real estate agents are not uniform. Apparently they vary from agent to agent and depend on the bargaining skills of the buyers. Other buyers in the same project used agents who are not more experienced or significantly better than the one I used. The commissions ranged between 0.5% and 2%. Many people paid 1%.

How much do I have to pay, if anything?

Answer:

The fundamental question
is this: Did she provide the service that she said she would?

You say you are extremely
unhappy with her service. Does that mean that she did the minimal amount of work
that entitles her to compensation—perhaps to an unprofessionally low standard but
still within reason—or do you mean that it was substandard and you feel she does
not deserve anything?

An agent does not have to
do much to be entitled to something. As long as she makes contact between two people
who then conclude a transaction that would never have taken place otherwise, she
has done quite a lot. She deserves something for that—the minimum amount an agent
normally gets. For purposes of discussion, let's call that 0.7%.

Now she is claiming 1% and
you are unsure about the extra 0.3%. That makes you a modeh bemiktzas, meaning
you admit that you owe 0.7% and are unsure about the balance. Normally, when a person
admits to part of the claim, he takes an oath denying the balance. Since you would
never take such an oath (since you might have agreed to that amount), you have to
pay the balance. In other words, you have to pay the full 1%.

Follow-up Question

Yes, she
did provide the service of bringing two parties together to make a deal. All other
promises that she made and failed to keep in a way I consider suitable were services
she was not obligated to provide in the first place. Therefore I recognize that
I should pay her the full 1%.

But shouldn't
this or a similar principle apply to her? Would she be required to swear that I
agreed to 1%? If she refuses, then can we reach an agreement on a different amount?

Response

She is making a taanas
bori, i.e., saying, “I am certain you owe me 1%.” You admit that you owe something;
the Torah throws the shevuoh on you, as a modeh bemiktzas.

Even if you were not certain
that you owed her anything—for example, if you remembered having the conversation
but were not sure she was the agent with whom you had it—you would have to pay her.
You have to pay someone who makes a definite claim if you are unsure whether or
not you owe that person anything.[1]

If you flatly denied owing
her anything, you would be required to swear (heses) that you were exempt
from paying—even though one does not have to pay to fulfill an ethical obligation.

So the onus is on you, not
the claimant.

There are some situations
when a person is a nishba venotel (swears in order to collect). These are
discussed in maseches Shevuos.

Follow-up Question

Does that mean that I should pay 1%, or do I have
grounds for trying to negotiate?

Response

You have grounds for negotiating,
since you don't trust her statement that you agreed to 1%. You are not required
to trust her. I can only tell you the halachic perspective on a case in which we
don't know what really took place. But you, as the person involved, may know she
is lying or posturing.

You can negotiate and make
an offer. If your offer is accepted, then the deal is done and you are not in violation
of stealing.

For example, you can tell
her, “Either we go to beis din and you make your claim and you might get all of
your 1%, or you can accept 0.8% from me now and be done with it.”

If she goes for the latter,
get a receipt from her and make it clear that she is accepting this as payment in
full and has no further claims against you.

Follow-up Question

Isn't it
a bit manipulative to do that, or is it the correct thing to do because I don't
trust the person?

Response

I suspect that you suspect
she is remembering things the way she wants to remember them rather than the way
they really happened.

If you trusted her when
she said you had really agreed to a 1% commission as much as if your wife had told
you that she had heard you agree to it, I don't think you would be writing to me.
You would say, “O.K. If I agreed to it, I’ll pay it.” But you seem to be questioning
the details of the conversation. That is why it is ethically acceptable for you
to negotiate with her and come to an understanding.

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