Bava Basra 87a discusses the halachos of a sarsur, a middleman, who charged for his services with an uplift in the price of the goods being sold. That term was later applied by poskim to a shadchan or broker, whether a marriage or estate broker. Fees charged by shadchanim are often viewed as high in relation to work performed, as a suggestion for a match may proceed to success without much effort by the shadchan. What is the basis for the fee payable?

KOSHER MONEY

Paying Shadchanus does not appear to have been practiced in earliest times and that remains the custom of many Sefardic communities still today. This is evident from the fact that halachos of shadchanim are not mentioned by Shulchan Aruch at all, and they are only found in the glosses of Rema (CM-87:39/185:10/264:7). Sefardim view match-making as a special mitzvah which should not be commercialised by charging for the service, and some Ashkenaz idealists also hold that view and refuse to take money for making a shidduch. However, R’ Zalman of St. Goar, Germany, a talmid of Maharil, writes in his Minhagei Maharil (Hilchos Chanukah) that Maharil lived in his yeshiva which was next door to his wife and children, but did not want to derive financial benefit from his wife’s assets. The yeshiva was funded by the community, but Maharil did not want to take payment for teaching Torah. He therefore acted as a shadchan, corresponding across the country with shidduch suggestions, which were respected and largely successful because of confidence in his personality, and he supported himself from his shadchanus earnings. R’ Moshe Sternbuch notes that several gedolim purchased their esrogim with kosher shadchanus money, because the kashrus of money earned from teaching Torah as a Rav or Rosh Yeshiva is questionable. R’ Yisrael Isserlein (Terumas Hadeshen 85) writes in the fifteenth century about varying customs concerning the timing of payment of shadchanus in different areas of Germany – at the vort or at the wedding – so clearly this payment was a well-established practice then. Sources indicate that in those days the amount of shadchanus was calculated as a percentage of the dowry, resulting in a much higher charge for wealthy families.

SPLITTING THE SHADCHANUS

Pischei Teshuvah (CM-105:6[3]) quotes Ateres Zvi who records a resolution found in the protocols of Vaad Arba Aratzos, the Council of Four Lands, which had been established in the sixteenth century. It stated that a shadchan who initiated a shidduch, the מתחיל, and one who achieved closure, the גומר, divided the fee between themselves equally. An initiator is defined as one who is also involved in negotiating financial arrangements. Anyone acting in progressing the shidduch had no entitlement to shadchanus. However, he then notes a later custom of dividing the fee three ways between the מתחיל, אמצעי and גומר equally, with the מתחיל now defined as the party without whose suggestion the match would not have started. With financial arrangements nowadays forming a greater part of the finalisation process, the custom has moved towards the מתחיל getting one third and the גומר receiving two thirds, but always according to local custom (R’Moshe Sternbuch, Teshuvos Vehahogos-3:457). In the NewlyREDS scheme, shidduch suggestions are submitted online and forwarded to shadchanim, and if an engagement results, the submitter is offered one sixth of the shadchanus, on the basis that he is a מתחיל, but since he does not contact the parties directly, he only gets half that fee.

STATUS OF THE PAYMENT

Where a shadchan is requested by parents to find a shidduch for their child, the service is regarded halachically like employment, and since the shadchan is paid for the job rather than the time worked, he is classed as a kablan. The terms of employment will be either as stipulated at the outset or will be assumed to be in accordance with local custom. Payment of a kablan is due when he completes the job, and in the case of a shadchan, that would be at the vort.  Where a shadchan, professional or amateur, introduces a suggestion to parents without being commissioned to act on their behalf, there are differences of opinion as to whether he has employee status. Avnei Nezer (CM-36) and other Acharonim assume that the shadchan, in making the introduction, is acting on behalf of those that will benefit from his service, namely choson and kalloh, but customarily payment in made by the parents on their behalf. They base themselves on a comment of Vilna Gaon (Biur Hagra-CM87:117) where he quotes Maharam that uncommissioned shadchanus has its roots in the laws of someone who went down (‘yored’) into his friends’s field and planted trees there without the landowner’s consent. Bava Metzia 101a discusses such a case and rules that where the field was ready for planting, we estimate how much money a person would want to give for someone to do the planting, and this is the amount the planter is reimbursed. Vilna Gaon states that compensation for a broker is calculated in a similar way, as the children prepared to get engaged are like the field ready for planting.

PRACTICAL DIFFERENCES

Poskim then debate the differences arising from treatment of shadchanus as payment of an employed worker or as a ‘yored’. Besides Avnei Nezer’s claim that the primary liability falls on the young couple as beneficiaries of the uncommissioned work, there will also be the issue of whether Bal Tolin applies for late payment, as that would only apply in connection with employment. Another difference may arise where the shadchan lives in Eretz Yisrael and the parents live abroad. Generally, shadchanus abroad commands much higher rates, so where employment is actioned abroad those higher charges would be payable, but where he is acting on his own accord, the benefit would be assessed according to the location of the shadchan. However, Erech Shai (CM-185) maintains that all shadchanus charges function based on employment law and the liability rests with the parents. R’ Asher Weiss (Minchas Asher-2:119) explains that even where the shadchan approaches a parent of his own accord, when the parent accepts the proposal, he is assumed to do that in accordance with established practice and custom of shadchanus, so that contractual employment is created even if not verbalised. He interprets Vilna Gaon’s comment to mean that fees are chargeable even if there is no prior agreement, in the same way as a ‘yored’ can claim payment, but the liability still has its roots in employment law.

FALSE INFORMATION

What if the shadchan gives false information to stimulate the shidduch? R’ Zvi Spitz (Mishpetei Hatorah, Bava Kama 26) presents the case of a shadchan who told the boy’s parents that the proposed girl’s parents were offering an apartment in Yerushalayim and on that basis they started meeting. When the couple announced that they were ready to get engaged, the parents met to finalise arrangements. It then became apparent that the girl’s parents had never suggested giving a Yerushalayim apartment and that this offer had been fabricated by the shadchan to get the boy’s parents to agree to the date. The boy’s father immediately broke off further negotiations and refused to proceed as he was unable to commit himself to such a large expense. However, the young pair refused to entertain any other shidduch suggestions as they had become attached to each other through their association. Eventually, the parents had no option but to come to compromise terms and the couple were happily engaged – and the shadchan claimed his fee. The boy’s father refused to pay the shadchan saying that his fabrication had caused the negotiations to fail and had caused him damage in that it cost him much more money than he intended, as he had other shidduch offers at a lower cost. R’ Spitz paskens that the shadchan must be paid in full because he had fulfilled his obligation, as the shidduch had come to fruition. A shadchan should not provide dishonest information, but that does not impinge on the liability for payment – one is not paid for provision of information. R’ Yitzchak Silver (Shaarei Mishpat – Sechiras Poalim-10:8) cites cases where the shadchan was careless or fraudulent, or did not complete his work, yet nevertheless the shadchan should be paid, because the couple benefited in the end. There may be cases where the shadchan would not be paid, depending on circumstances, just as when a regular employee defaults in his duties, and normal employment law should apply.

UNSETTLED ACCOUNTS

R Moshe Sternbuch (Teshuvos Vehanhagos-1:736) stresses the importance of settling the shadchan’s fees in accordance with his standard charges. He brings instances where the couple experience trouble in their relationship or infertility, and Rabbonim have attributed the cause to unsettled accounts of the shadchan. Mishpetei Hatorah (2:32) notes that occasionally a shadchan demands more than his entitlement and then pressurises the parties by warning them of the serious consequences of not paying shadchanus. He writes that people should not be concerned by such claims because in shamayim they know the truth and disregard his contentions. Therefore, if there is any disagreement regarding the charge, it should not be litigated, but rather a Rov should be asked to arbitrate settlement.