Q: I engaged the services of a realtor to help me buy a house. He told me that since a particular seller had his own realtor, he would get paid only by me, so he would have to charge me a higher fee for the deal. I was in a rush when he told me this, so I agreed to the fee without looking into whether the amount he was asking was fair.
When I actually bought the house, he charged me 3% of the sale price, and told me that the balance would be due later.
I now found out that the total he charged me is way above the standard realtor’s fee. Am I required to pay him the balance?
A: In the previous issue, we determined that the concept of hashta’ah (absolving yourself by claiming that you were joking when you committed to pay a higher fee) does not apply to your case, because you clearly were not joking when you agreed to pay the real estate agent’s higher fee.
We now move onto another possible reason that you might not be obligated to pay: ona’ah (exploitation). The Torah (Vayikra 25:14) forbids taking advantage of another person by overcharging him when selling him an object. Chazal set limits on how much the seller would have to overcharge in order for the buyer to demand a refund of the difference between the sale price and the actual value, and how much the difference would have to be in order for him to void the sale (see Shulchan Aruch Choshen Mishpat 227:1-4, as explained in BHI #606).
Chazal derived from a passuk that ona’ah does not apply to real estate or an eved (slave). This doesn’t mean that the seller is allowed to overcharge for them; it means that the buyer may not demand a refund or void the sale if he was overcharged (Pis’chei Teshuvah 227:29). The Poskim deliberate whether there might be ona’ah even in these cases if the seller overcharged by 50% or more.
There are two types of work arrangements: a poel and a kablan. The Poskim deliberate what the difference between them is. Some say that a poel gets paid by the hour, while a kablan is paid for the full job (Shach 333:20). Others say that a poel is a worker who must work at specific hours, while a kablan may choose which hours he does the work he agreed to do (Sma 227:59 & 66. See Mishpitei Hachoshen 333:21).
According to both opinions, a real estate agent is a kablan, because he gets paid for completing the sale, not an hourly wage, and he may also work whenever he chooses.
Because a poel and an eved are similar in that both must work when the boss demands that they work, ona’ah does not apply to a poel who overcharged for his work (Choshen Mishpat 227:33). But a kablan is similar to a seller because he “sells” his work. The Shulchan Aruch (227:36) therefore rules that ona’ah applies to a kablan. But some Poskim rule that ona’ah does not apply to a kablan either (see Chiddushei R’ Akiva Eiger ibid., in the name of Ramban and Rashba).
Some say that ona’ah will apply only to a kablan who produces something new, such as a tailor hired to sew a suit, because that is similar to a sale, where ona’ah applies. But if he is not producing an object — such as in the case of a shadchan — his service is dissimilar to a sale, so ona’ah does not apply (Shut Maharit, Choshen Misphat 19). But many Poskim disagree with this distinction (see Terumas Hadeshen 318; Machaneh Ephraim on Rambam, Mechirah 13:18; Shu”t Shvus Yaakov 3:157).
Returning to your case, because a real estate agent is a kablan, according to the Shulchan Aruch, ona’ah applies to him; therefore you are not obligated to pay the remainder of the fee he demanded. Although the Maharit limited the halachah of ona’ah to a kablan who produces something concrete, and the real estate agent did not do that, we can rely on the Poskim who do not limit ona’ah to that type of kablan, so you do not have to pay the rest of the fee. If, however, you already paid, you may not demand that he return the additional fee, because he can rely on the Maharit’s position and on the opinion that even a kablan is exempt from ona’ah.
(Although we mentioned earlier that ona’ah does not apply to real estate, that pertains only to the sale of a property [and perhaps to work done on a property (Choshen Mishpat 227:34)], not to the work of a real estate agent arranging such a sale.)
