Shalom was renting for the year. His contract stipulated that if he left early, he would remain liable for the rent unless he provided an alternate tenant.
Three months before the end of the year, Shalom decided to move. “Do you have someone to replace you?” asked the landlord.
“I found someone,” replied Shalom. “He wants to sign a contract through the end of next year.”
“That’s fine with me,” replied the landlord. “It makes my life easier not to have to find a new tenant for next year.”
When the landlord deposited Shalom’s final rent check, it was refused for insufficient funds. He asked Shalom to make good on the rent. “I’m having a hard time now, especially with all the moving expenses,” Shalom apologized.
“That’s not an excuse to skip payment of your current rent,” replied the landlord.
“Anyway, I don’t have to pay you,” Shalom added.
“Why not?” asked the landlord with surprise.
“I found a tenant for next year,” replied Shalom. “You owe me a brokerage fee, which cancels out the month’s rent!”
“You had to find a tenant anyway, to avoid paying the remaining months’ rent,” said the landlord. “Furthermore, I didn’t ask you to serve as my broker; I could have found someone myself.”
“But you still benefited,” said Shalom. “You owe me something for that.”
“It might be nice to give you something as a token of appreciation,” said the landlord, “but I don’t owe you anything.”
“I think that you do owe me,” said Shalom. “I don’t see why I should have to pay the last month’s rent.”
The two came before Rabbi Dayan. “Do I have to pay Shalom the brokerage fee?” asked the landlord.
“Indeed, Rama writes that one who benefited from someone’s service cannot claim that it was done gratis since he did not request the service,” replied Rabbi Dayan. “However, this applies only where it is customary to pay for such service and when the person who provided the service initially intended to ask for payment. In some places, a broker is not entitled to payment unless an authorization form was signed committing to his fee.” (C.M. 264:4; Nesivos 12:5; Pischei Choshen, Sechirus 8:31)
“What if the practice is to pay the brokerage fee even without a signed form and I intended to ask for payment?” asked Shalom.
“It is still not clear that the landlord has to pay in this situation,” said Rabbi Dayan. “The Rishonim address the case of two people who were imprisoned and one made expenditures for his release, which also benefited the other. Rama [ibid.] rules that if he needed to spend the entire amount for himself anyway, the other prisoner is exempt from reimbursing him, since it’s zeh neheneh v’zeh lo chaser [he gained with no loss to the other]. Nonetheless, if the expenses were intended on behalf of both, the other has to pay what he benefited in practice.”
“How does this apply here?” asked Shalom.
“Since you had to find an alternate tenant, although the landlord benefited for the following year, zeh neheneh v’zeh lo chaser,” answered Rabbi Dayan. “Therefore, he does not have to pay a brokerage fee, unless the search was also intended for the coming year.”
“What is considered intended?” asked Shalom. “The tenant did want the following year.”
“It depends on whether the other party had the need at the time of the service, and whether the benefit to the second person is inherent in the actions of the first or can be separated,” said Rabbi Dayan. “Here, when you found the new tenant it was not yet necessary to search for following year. In addition, it was possible to find someone just for remaining months, so that the benefit is not inherent. Thus, you are not entitled to demand the brokerage fee.” (See Mordechai B.K. #167; Noda B’Yehuda II C.M. #24; Techumin, vol. 18, p. 224.)