Mr. Silver owned a jewelry store. A woman came in with a diamond bracelet that had broken. “One of the stones fell out and got lost,” she said. “Would you be able to replace the stone and fix the bracelet?”
“I would have to find a matching stone,” said Mr. Silver. “I deal with a diamond broker, Mr. Stein. If he can find a matching stone, I’ll be able to fix the bracelet.”
Mr. Silver contacted Mr. Stein and described the kind of diamond needed. “I’ll look for one,” said Mr. Stein. “I charge a 15 percent brokerage fee for the service.”
Two weeks later, Mr. Stein brought a diamond to Mr. Silver. “I found a matching stone,” he said. “The papers seem in order and I tested the stone with my gem tester; it beeped positive that the stone is genuine.”
Mr. Silver examined the papers. “I’d like to test the stone again,” he said. His gem tester also beeped positive. He gave Mr. Stein money for the diamond and paid him the brokerage fee.
“I’ll pass the fee on to the seller,” said Mr. Stein.
A week later, Mr. Silver contacted Mr. Stein. “The woman insisted on having the stone rechecked by a professional gemologist,” Mr. Silver said. “I took it to one, who reported that the stone was not genuine. I’d like my money back.”
“You’re welcome to deal with the seller,” replied Mr. Stein. “I’ll give you his contact information. I was only a broker and passed the money on to him.”
“But I bought the gem from you and gave you the money,” reasoned Mr. Silver. “You owe me the money; you go deal with the seller!”
“I did not sell you the stone,” replied Mr. Stein. “I was merely an agent who took a brokerage fee. You tested the gem and examined the papers the same as I did.”
The two came before Rabbi Dayan. “Is Mr. Stein liable?” asked Mr. Silver. “Who is responsible to deal with the seller?”
“Had Mr. Stein purchased the diamond and then resold it to you, he would be directly liable to you, even though he was also cheated,” replied Rabbi Dayan. “However, since he served only as a broker between you and the seller, he is responsible as a worker or guardian, but is not directly liable for the false stone.” (Rama C.M. 232:18)
“Nonetheless, Mr. Stein is responsible to assist you in collecting from the seller,” continued Rabbi Dayan. “The Gemara [B.K. 108b] teaches that if an armed robber, oness, stole an entrusted item and was caught, the guardian is responsible to deal with him. Rashi writes that the guardian must pay the owner and collect from the thief, but the Rambam indicates that the guardian is responsible only to help deal with the lawsuit. Terumas Hadeshen (#324) derives from this if a person served as a paid broker for selling a loan and the borrower defaulted, the broker has to help the buyer in the legal proceedings to secure payment.” (C.M. 294:6; Sma 294:7: Shach 294:8)
“The Shach [294:9] disagrees and frees the broker of any responsibility, since the loan was intact when sold and the default occurred later, but Pischei Teshuvah (294:3) cites others who support the Rama,” added Rabbi Dayan. “In our case, the Shach might agree that Mr. Stein must assist in the lawsuit, since the gem was not genuine and the sale was problematic from the beginning.”
“What about my brokerage fee?” asked Mr. Stein. “I invested time and effort to provide the service, regardless”
“If someone brokered a sale, and the parties subsequently cancelled it, the broker is entitled to his fee since he completed his task,” replied Rabbi Dayan. “However, if the transaction turned out to be void, he is not entitled to his fee.” (Pischei Choshen, Sechirus 14: 14)