Continuing the discussion of he liabilities of the owner and the broker toward each other, assume that the broker gives the goods to a potential customer who neither pays for nor returns the goods. If the potential customer is known as a trust- worthy person or giving him the goods is pursuant to instructions of the owner, the broker has no liability to the owner.

In other situations the broker is liable to the owner since the situation is similar to having the goods stolen and the broker is responsible if the goods were stolen from him. Beth Din will have to weigh each case to see if the broker misplaced his confidence in the potential customer or was reasonable in giving the goods to the potential customer to examine. Very often the custom in the trade will dictate whether the broker was reasonable in giving the goods to the potential customer and should be free of liability.

Unless authorized by the owner, the broker may not extend credit to the customer of the goods. If the owner authorizes the extension of credit to a specific customer the broker has no liability if the customer does not make the payments. If there is a general authority to sell on credit, then Beth Din will have to determine whether the broker was reasonable in extending credit to the customer. If he was not reasonable, the broker is responsible for the failure of the customer to make the payments. If there was no authority for the broker to sell the goods on credit, then the broker is responsible if the customer does not make payment.

Many questions arise regarding the compensation of the broker. Often there will be an agreement entered into between the owner and the broker made binding by a kinyan (each party picking up the handkerchief of the other) or by the practices of the community. These terms will be binding on the parties. Absent a contract, very often the community will have its own practices as to the earning of compensation of brokers and such procedures should be followed. Beth Din, in deciding cases involving compensation of brokers should follow local practices and take into consideration some of the laws that follow.

The broker earns his full compensation if he sells the goods to a customer on the owner's terms, or introduces a customer to the owner and the owner concludes the sale by himself.

If the broker introduces the owner to a customer and the owner refuses to sell to this customer and after some time sells to this customer either directly or using another broker, the first broker is entitled to his full compensation. This sort of procedure is deemed to be a ruse to relieve the owner of his obligation to pay the first broker. There is also a dissent that holds that there may have been a compelling reason why the owner did not sell at the outset to this customer and the situation has changed and he is now ready to sell to this customer, and thus both brokers should be paid a proportion of the compensation. This latter view holds that the owner will one day have to meet his Maker and explain this to Him. However, this will not enable the broker's wife to go shopping for food for her children. Beth Din should be on the alert for practices that deprive a person of his livelihood and should examine each case.

The compensation should be paid when the deal has been concluded and the customer has paid the owner. If the sale is on credit, this should be taken into account by Beth Din in determining when the payments to the broker should be made. If the sale needs governmental approval, then the compensation must wait until such approval is obtained

There are times when the seller and the buyer had independently engaged the same broker and he concludes a sale between the parties. Beth Din may, if the circumstances warrant it, award compensation from both parties. Beth Din should examine whether the broker was in a conflict-of-interest situation that prejudiced both parties, or one party.

If there is more than one broker and they cannot agree on how to divide the compensation, Beth Din should examine the relative acts of the brokers and determine how the compensation should be divided.

As stated at the outset of our discussion of brokers there is the role of the marriage broker, the shadchan.

Once a Roman matron asked Rabbi Jose bar Halafta: "How long did it take the Holy One, blessed be He, to create the world?"

He said to her: "Six days."

"And from then until now what has He been doing?"

"The Holy One, blessed be He, is occupied in making marriages."

"And is that His occupation?" the woman asked. "Even I can do that. I have many men slaves and women slaves and in one short hour I can marry them off."

"Though it may appear easy in your eyes," he said, "yet every marriage is as difficult for the Holy One, blessed be He, as the dividing of the Red Sea." Then Rabbi Jose left her and went on his way.

What did the matron do? She took a thousand men slaves and a thousand women slaves, placed them in two rows and said: "This one should wed that one, and this one should wed that one." In one night she married them all.

The next day they came before her, one with a wounded head, one with a bruised eye, another with a fractured arm and one with a broken foot.

"What is the matter with you?" she asked.

Each one said, "I do not want the one you gave me."

Immediately the woman sent for Rabbi Jose bar Halafta and said to him: "Rabbi, your Torah is true, beautiful and praiseworthy."

"Indeed a suitable match may seem easy to make, yet God considers it as difficult a task as dividing the Red Sea," Rabbi Jose acknowledged. Genesis Rabbah 68.4

The shadchan has the legal status of a broker. In Jewish communal life, over many centuries, the role of the shadchan has been recognized as helping to bring about marriages that are "made in Heaven." Each community adopted customs and rules dealing with the payments to be made to the shadchan. There are some people even today who will not think of their children getting married unless arranged by a shadchan. If the girl and boy have already met, the parents may still want a shadchan to become involved to the extent of at least charging the parents a fee. The parents may think that it brings good luck to the new couple if the shadchan has been paid. Some think that unless a fee is paid to the shadchan the couple will not have children.

The Beth Din in each community should see that the shadchan as well as the parents of the bride and groom are treated fairly in this very delicate relationship. It may be that one or both sets of parents are poor and cannot really afford a shadchan, and nevertheless use one, out of necessity or out of being ashamed not to use one. Beth Din should examine the relationship and do justice to all the parties.

There are different community customs when the shadchan should be paid.

In some communities he has earned his fee when the parents of both the girl and the boy bind themselves to the forthcoming marriage by tenay'im.

The document known as "tenay'im" (conditions), sets forth the penalties to be paid to the other side if either side backs out of the marriage.

In other communities the broker is paid after the marriage, although the parties recognize that the fee has been earned upon the shadchan arranging the first meeting between the boy and the girl. In still other communities he has not earned his fee until the couple actually gets married.

The amount of the fee varies from community to community and may be arranged by a contract between the shadchan and the parents of the boy and/or girl.

If there is more than one shadchan involved in arranging the marriage, Beth Din should see who was most directly the cause of the marriage and who was the secondary shadchan, and perhaps even beyond that. The shadchan who was primarily responsible will be paid the largest portion of the compensation, and so on. Usually the first shadchan will be the most important cause and the second shadchan will be the second most important cause.

The compensation in most communities is a percentage of the moneys that the couple receives from their parents. In some communities it may be as high as 6%, but in most communities it is as little as 3%. The community standard should be followed.

The subject matter of this lesson is more fully presented in Volume VI Chapter 185 of "A Restatement of Rabbinic Civil Law" by E. Quint, published by Jason Aronson, Inc. and on sale at local Judaica bookstores.
Questions to quint@inter.net.il

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