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: There are two sugyos (Talmudic topics) that are relevant to your question: hashta’ah and ona’ah.
Hashta’ah is a situation in which the party who agreed to pay a certain amount for something claims that he was joking when he made that agreement.
We find several cases in which this is considered an acceptable claim:
- If someone is escaping from captivity, and he asks someone to ferry him across a river for an exorbitant sum, then after the ride is over, he is required to pay only the normal fee, and he can say, “I was joking (when I promised to pay the higher amount)” (Bava Kamma 116a, Shulchan Aruch Choshen Mishpat 264:7).
- Similarly, if a yavam (brother of a man who died without children, who is required to do either yibbum [levirate marriage] or chalitzah, which enables her to marry other men) is instructed to do chalitzah because he would be an inappropriate spouse for his brother’s widow, and he refuses to do so unless he is paid, the widow may agree to pay him, and then, once he does the chalitzah, she may say, “I was joking” (Yevamos 106a; Even Ha’ezer 169:50).
- If a person was sick and he agreed to pay a doctor an unreasonable price to treat him, he is required to pay only the normal fee, and he may say, “I was joking” (Ritva Kiddushin 8a; Yoreh Dei’ah 336:3).
- If someone promises to pay his son-in-law to learn with his grandson (the son-in-law’s son), he may later refuse to pay, since a father is required to learn with his son without pay, and he may say, “I was joking” (Choshen Mishpat 81:1).
A common denominator unites these cases: the service the person agreed to provide was a mitzvah. Some Poskim therefore rule that one may only claim to have been joking when he pledged to pay a high price for a service if that service involved a mitzvah, but if it is not a mitzvah, he may not make this claim.
We also find this claim mentioned regarding a shadchan who demands a large sum to redt a shidduch (Choshen Mishpat 364:7), and some Poskim write that redting a shidduch is also a mitzvah, and that’s why someone who promised to pay him a large sum may later claim that he was joking (Mahari ben Lev 1:100).
Other Poskim say, however, that a person may claim to have been joking any time he agreed to pay beyond the market price for a service, even if no mitzvah is involved, if the person providing the service was exploiting his desperation (according to the Nesivos [264:8], the price would have to be at least a sixth more than the market value).
According to the latter Poskim, a person is entitled to claim that he was joking even if the service provider is a realtor or another non-mitzvah service provider, as long as there is a set price for that service and the provider demanded a much higher price due to the client’s desperation (Shach 264:14; Rema 129:22).
Furthermore, if the provider demanded a price that involved ona’ah, the client may even pledge to pay the demanded price lechatchilah, with the express plan of later saying that he was joking (Nesivos 264:8).
Nevertheless, if someone already paid the high price for a service, he may no longer demand a refund, because by paying he proved that he had no intention of fooling the service provider (Shulchan Aruch 264:8 and Ketzos 227:1). Similarly, if the two parties made a kinyan (act to formalize the deal), the client may not renege on his agreement due to paying the higher price (Ketzos 129:8 and Nesivos 264:8).
In your specific case, however, you may not claim that you were joking. The Poskim write that if the recipient of a service was sincere in his agreement to pay the higher price and only later regretted it, he may not claim that he was joking (Machaneh Ephraim, Sechirus 15 and Ketzos 81:4; see also Chikrei Lev, Choshen Mishpat 135). The claim is valid only if he was indeed joking at the moment of the agreement, or at least agreed to the price with the intention of dealing with the overcharge later.
You clearly were not joking when you agreed to pay the realtor’s price, so you are not entitled to claim that you were. The only question that remains is whether you are not required to pay the balance due to the ona’ah aspect of this case. We will discuss that she’eilah next week, b’ezras Hashem.
