Middlemen And Shadchonim
The Rema (Choshen Mishpot 185:10) writes, â€œA shadchan is like a sarsur.â€ What is a sarsur? In order to understand this, we must examine a Mishnah in Bava Basra (87a). The Mishnah states: â€œIf one was selling wine or oil to his fellow and [after the price was fixed] it appreciated or depreciated: if [the price changed] before the measure was filled, [it changed] for the seller, [but if it changed] after the measure was filled, [it changed] for the buyer. If there was a sarsur, a middleman between them, and the barrel broke, it broke for the middleman.â€
This Mishnah is presenting two distinct halachos. The first part discusses the situation when a customer wishes to purchase wine or oil and after the price is agreed upon, the seller proceeds to pour the liquid into a measuring utensil. Until the utensil is filled, the merchandise still belongs to the seller and if, for whatever reason, one of them wishes to renege on the sale, perhaps because there is a price fluctuation in the market, either one can cancel the sale. Once the measure is filled, the merchandise automatically transfers to the purchaser and the sale is final.
The next halachah introduces the concept of the middleman. The middleman in this case serves as the agent of the merchant and his job is to sell the merchantâ€™s merchandise to the costumers. Since he is paid for his services, he has the status of a shomer sochor, a paid guardian, and he is legally responsible for any accidental damage to the merchandise in his care. It is for this reason that if the barrel breaks, he must reimburse the merchant (Rivam, Tosafos, Bava Basra 87a, s.v. nishborah).
This explanation of the Mishnah concerning the middleman is codified as halachah by both the Rambam (Hilchos Shluchin Uâ€™shutfin 2:7) and the Shulchon Aruch (Choshen Mishpot 185:1 and 7). As the Shulchon Aruch writes, â€œThe sarsur is an agent, and he takes payment for his services.â€
Concerning this, the Rema (ibid. 185:10) writes that the shadchan is like a sarsur. Furthermore, the Rema writes elsewhere (ibid. 87:39) that whenever there is a monetary disagreement between the shadchan and the people for whom he made the shidduch, one must relate to the claim in the same manner that one deals with any monetary claims.
A shadchan, like the middleman, is an agent of those whom he represents and is entitled to be paid for his services.
The (Un)wanted Planter
What is the halachic basis for the concept of paying someone for his services when the service provider was not hired by the beneficiary? When a shadchan volunteers to propose a match for oneâ€™s child, what obligates the baâ€™al simcha to pay the shadchanâ€™s if the shidduch is successful? The shadchan was never employed by the baâ€™al simcha. (Of course, when the shadchan is petitioned by a young man or woman or by one of the parents, then it can be argued that he is an employee.)
The Vilna Gaon (Biur Hagra, ad locum) cites Rabbeinu Meir of Rothenberg, who points to a Gemara in Bava Metzia (101a). The Gemara discusses a scenario in which Reuvein owns a field in which, theoretically, he could grow a profitable orchard, but for whatever reason he has not invested the necessary effort to do so. Shimon decides to take the project upon himself without Reuveinâ€™s knowledge. Shimon then presents a bill to Reuvein in order to be reimbursed for his expenses, labor and a portion of the projected increase in profits that the orchard will now generate. The Gemara rules that in this particular case, we estimate how much Reuvein would be willing to pay in order to have his field converted into a profitable orchard and that is what he will have to pay Shimon.
The case of the planter parallels that of the shadchan. People who reach the age when they are interested in getting married are like the field that it is fit for planting. If one comes along and suggests a match and the suggestion concludes successfully, it is as if he went and planted the field, and he must be reimbursed.
Importance of Paying Shadchonus
The importance of paying the wages of the shadchan cannot be underestimated. Numerous stories have been passed down through the generations concerning barren couples coming to great tzaddikim after many years of marriage to bemoan their situation. In several such incidents, the couples were asked if they had paid the shadchanâ€™s when they became engaged, and upon being answered in the negative, these couples were instructed to find their shadchan and reimburse him for his services. Upon doing so, these couples were often blessed with children.
The Greatness Of Making Shidduchim
Some contend that by suggesting and making shidduchim one fulfills the concept of emulating the ways of Hashem, as it states, â€œJust as He is compassionate and gracious, you shall also be compassionate and gracious; just as He performs chesed, you shall also perform chesed (Pesikta Zutrasa, Reâ€™eih, page #21a). And, as the Midrash (Vayikra Rabbah 8:1) relates, Rebi Yossi bar Chalafta told a certain noblewoman that since Hashem created the world, He has been involved in matchmaking.
Who Has To Pay?
Now that we have seen that there is a halachic basis for paying a shadchan for his services, we want to know who is responsible to pay.
Let us begin by citing a responsum of the Avnei Nezer, one of the towering poskim of the late nineteenth century. The following question was addressed to him (Shuâ€t Avnei Nezer, Choshen Mishpot #36): Mr. Shadchan suggested a match between Yosefâ€™s daughter and Binyominâ€™s son. Although Mr. Shadchan put in his best effort to bring the shidduch to fruition, in the end, that suggestion did not work out and Yosef made a match for his daughter with someone else. However, Yosef had a younger daughter and, acting on their own, Binyominâ€™s son ended up getting engaged to Yosefâ€™s second daughter. At this point, Mr. Shadchan demanded a shadchonus fee for the match, as he was the one who had brought the two families together in the first place.
The Avnei Nezer ruled that Mr. Shadchan is not entitled to any compensation from the kallahâ€™s side because, in reality, paying the shadchan is the responsibility of the chosson and kallah, as they are the recipients of the benefit provided. The fact that their parents usually pay is irrelevant. In this case, Mr. Shadchan never intended to benefit the younger daughter, but rather the elder one. The fact that the younger girl received benefit due to his actions is considered a grama, indirect benefit, and she does not have to pay anything. (The Avnei Nezer also discusses whether the chossonâ€™s side needs to pay, but that will have to be left for another time.)
In any event, we see from the Avnei Nezer that the responsibility of paying the shadchan is technically placed upon the bride and groom, notwithstanding the fact that it is the parents who actually pay. The Avnei Nezer gives no indication whether the fact that the parents pay is based on a halachic obligation, a minhag, or merely for practical reasons.
Parents Also Benefit
Some contend that since the generally accepted custom is that the parents pay the shadchan, it is their sole responsibility to do so, especially since the parents are also direct beneficiaries of their childrenâ€™s shidduch as it is of utmost importance to any parent to see to it that his or her child marries (Shuâ€t Halichos Yisroel #3).
The Assumed Intent
A question was once raised concerning a shadchan who suggested a shidduch and after the chosson received the customary dowry, the shadchan demanded his fee from the chosson. The reason why he chose to approach the groom as opposed to the father, as is usually done, was because the father was a difficult person to deal with and the shadchan felt he had a better chance of receiving payment if he went to the chosson.
The ruling on this question was that the shadchan could not demand payment from the chosson. The reason is because when the shadchan undertook to make the match, he had no intent to collect his fee from the chosson, but rather from the parents. This assumption is predicated on two points: First, the generally accepted custom is that the parents pay the shadchanâ€™s fee, and second, at the time of the proposal, the chosson was incapable of paying as he did not have any money. That being the case, the shadchan could demand payment only from the parents (Sefer Erech Shai, Choshen Mishpot 185:10).
Time To Pay
When is the correct time to pay the shadchan for his services? The Rema (Choshen Mishpot 185:10) writes: â€œIf the shadchan wants them to pay the shadchonus wages immediately and the relevant parties do not want to pay until the wedding, it is dependent on local custom. Where there is no custom, the halachah sides with the relevant parties.â€ The Aruch Hashulchon (185:11) elaborates and writes that nowadays the custom in most locales is to pay the shadchan immediately after writing the tannoim. Where the custom is not to write tannoim, one pays the shadchan after the kabbolas kinyan, i.e., when it is agreed upon to go through with the shidduch (see Erech Shai #185 and Shuâ€t Halichos Yisroel #3).
Shadchonus And Bal Solin
If the baâ€™al simcha does not pay the shadchanâ€™s fee on time, does he run afoul of the Torah prohibition against withholding a workerâ€™s wages? In order to understand this, we must briefly discuss the halachos relevant to paying wages.
When it comes to paying a workerâ€™s wages, the Torah commands us a mitzvas asei and a mitzvas lo saâ€™asei:
1) â€œA workerâ€™s wage shall not remain with you until the morning.â€ This is referred to as â€œlo solin.â€ (Vayikra 19:13)
2) â€œBeyomo sitain sechoro, On that day you shall pay his wage.â€ (Devorim 24:15)
In addition to the mitzvos mideoraisa, there is also a rabbinic prohibition of not holding back wages based on a posuk in Mishlei (3:28), â€œDo not say to your friend, â€˜go and return.â€™â€ In certain situations, although there is no obligation min hatorah to pay wages on a particular day, nevertheless, there is a mitzvah miderabbonon to pay as soon as possible. (Bava Metzia 110b).
If a person is hired to perform a particular task, there is a Torah commandment to pay him on the day he completes the job and it is forbidden to withhold his wages.
Do these mitzvos apply to a shadchanâ€™s wages?
This depends on the situation. If the shadchan was approached by any of the interested parties and asked to find an appropriate shidduch, the shadchan is then considered a hired worker and there is a mitzvah to pay him on time (either mideoraisa or miderabbonon). However, if the shadchan approached the interested parties and suggested the shidduch on his own, he is not considered to be a worker and the mitzvah does not apply (see Pischei Teshuvah, Choshen Mishpot 89:2; Shuâ€t Halichos Yisroel #3).
Giving Up Hope
It once occurred that a shadchan proposed a shidduch between two people, but for whatever reason the young man did not follow through with that suggestion and instead married someone else. Eventually, the couple divorced. The husband then approached the family of the girl who was suggested originally and the couple became engaged and married. At this point, the shadchan reappeared on the scene and demanded shadchonus gelt for the original proposal.
One authority ruled that in this situation, since the shadchan lost hope of ever receiving compensation as the chosson married someone else, he no longer had any claim to payment. The same would be true even if the young man or woman merely became engaged to someone else. Once the shadchan sees that his proposal is no longer relevant, he relinquishes his claim for compensation (Erech Shai, Choshen Mishpot 185:10).
Ruining It For Himself
A shadchan suggested a shidduch between Reuveinâ€™s son and Shimonâ€™s daughter. After both sides expressed interest to the shadchan, the shadchan decided that it would be more financially lucrative for him to match Reuveinâ€™s son with Leviâ€™s daughter since Levi was extremely wealthy and the matchmaker could expect a larger than normal fee. In order to get the new proposal on the table, the shadchan went and told Reuvein and Shimon that neither side was interested in the match. He then proposed the shidduch between Reuvein and Levi.
Before that suggestion had a chance to develop, Reuvein and Shimon happened to meet and in the course of their conversation, they discovered the shadchanâ€™s fabrication. Reuvein and Shimon proceeded with the shidduch on their own, which turned out to be a good match. At this point, the shadchan, believe it or not, reappeared on the scene and demanded payment for his shidduch proposal. Does he have a valid claim?
There are numerous arguments that Reuvein and Shimon are exempt from paying the shadchan. One argument is that if the shadchan gives up hope of being paid, he loses the rights to the compensation. In this case, he actively destroyed any chance of being paid for his services by lying to the two parties, which is considered as if he gave up hope.
Another argument is that according to halachah, a person in the rental business is obligated by virtue of the rental fee to provide the item that he is renting. For example: Yehudah owns several snow blowers and he rents them out to his customers. Since the customer pays a fee in order to use the snow blower, if for some reason the machine does not work, Yehudah is obligated to provide another one for the duration of the rental period (see Nesivos Hamishpot 312:5).
By the same token, the shadchanâ€™s fee obligates the shadchan to perform the matchmaking service. If he proactively destroys a shidduch, he is certainly not entitled to compensation (Responsum of Rav Yisrael Grossman, Tzohar, volume III, 5758, pages 198-201).
As an interesting aside, a similar scenario was brought before Rav Chaim Kanievsky, and he ruled that not only is the shadchan not entitled to his fee, but technically they should make a public announcement in shul on Shabbos morning branding this individual as a rosha (see Aleinu Leshabeiâ€™ach, Bereishis, pages #503-505).
Preconditions of the Shadchan
If the shadchan states at the outset that he is willing to suggest the shidduch and perform all of the usual work involved gratis, the two sides are not obligated to pay him (Shuâ€t Chut Hashani #2). This is true even if the shadchan changes his mind after the shidduch has been concluded and then demands payment (Shuâ€t Minchas Yechiel, volume II, #4).
However, if the shadchan changes his mind before the shidduch is concluded and states that he wishes to be paid for his services, he is to be paid like any other shadchan (ibid.).
In a situation where the shadchan thought that making the shidduch would be easy and that is why he offered his services for free, but in the end he found that it was very involved and costly for him to bring the shidduch to fruition, he is allowed to change his mind even after the shidduch has been concluded. However, in this situation, he cannot merely state that this was his intent, but he must â€œaccept a cheiremâ€ to verify his claim. This means that he is so definite in his position that this was his intent that he must state that if his claim is not true, he accepts upon himself a form of excommunication (ibid.).
The shadchan also has the capability of releasing one side of the shidduch from their obligation to pay him without affecting the other sideâ€™s responsibility to do so (Responsum of Rav Yom Tov Weil, Moriah, Year III, Volume #1-3).
Preconditions of the Baâ€™alei Simcha
If the two sides inform the shadchan at the outset that they do not intend to pay him shadchonus, they are not obligated to do so. However, if they told the shadchan only after he began to work on the shidduch, even though the shadchan did not protest, they are obligated to pay the regular shadchonus fee (Orchos Hamishpotim, volume I, #6.9).
The Real Shadchan
A neighbor of mine related that when his oldest child began shidduchim, the word â€œshidduchimâ€ was thrown around the house freely. At one point, the eight-year-old sibling asked her eleven-year-old sister, â€œWhat are â€˜shidduchim?â€™â€ The older child, with all of her sweet, innocent wisdom, answered, â€œâ€˜Shidduchimâ€™ are when a person wants to get married and he davens to Hashem to make it happen.â€
As much as we run after shadchonim to help us in the pursuit of that special someone for our children, we must always keep in mind that the bottom line is that the shadchan is merely a shliach, while the real Shadchan waits for us to beseech Him to help.