BROKER:
One who acts as middleman between seller and buyer, or makes it his business to bring buyer and seller together; also one who acts as agent for hire. The Neo Hebrew word for broker is "sirsur." It occurs with the former and more proper meaning in the Mishnah (B. B. v. 8, very briefly commented on in the Babylonian Gemara 87a), where the case is put of a package of oil or wine breaking while being measured, and "if a broker stands betweenthe parties the loss falls on him," by reason of the doubt whether title to the goods has passed from the seller to the buyer. In the codes the word is defined in the latter sense—that of one who acts as agent for hire; and illustrations are given as well of purchasing agents as of men employed to sell. This occupation of a paid agent was rather infrequent, in Palestine and Babylonia, in the time when the Mishnah and Gemara were evolved, as the nation was still mainly engaged in farming and grazing; hence the references to the Talmud made by the codes on this subject are rather far-fetched.
The broker (says Maimonides in Hilkot Sheluḥin ii. 6) is a paid agent; hence, if he deviates from the intent of the owner, he must make good the loss caused. Thus, if A gives an article to B, the broker, and says, "Sell this for me for not less than a hundred zuz," and B sells it for fifty, he must make up the other fifty from his own pocket; but if he sells it for two hundred, the whole belongs to A (see also Shulḥan 'Aruk, Ḥoshen Mishpaṭ, 185, 1 et seq.). According to R. Moses Isserles (gloss to ib.), a mere present sent to a buying or a selling agent turns him into a broker.
When a dispute arises about the instructions, there being no witnesses, and the broker insisting that he was permitted to sell at the price which he realized, he may clear himself by his oath. On the question when the "oath of the Torah" or when the rabbinic oath is required see Oath.
The broker can not sell to himself, thus gaining the ownership of the article entrusted to him; but when he is limited to a price at which he may sell, and he pays that price to the principal, who accepts it, the latter can not afterward object to the broker's keeping the article. If the owner offers to the broker the surplus over a named price as the reward for his trouble, the mere silence of the broker is deemed an acceptance of these terms; and he may upon a sale retain such surplus accordingly (ib. 125, 5).
When an article entrusted to a broker is lost or stolen from him, even on the way, being a hired keeper (see Bailments), he is bound to make it good. Should he lose a precious stone out of a ring or other jewel, he should swear that he has it not in his possession, and what it is worth, and make good its value (ib. 8). Where a broker is entrusted with goods for the purpose of pawning them, and he claims not to know to whom he has pawned them, this is an act of faithlessness, and he is answerable at once. If he has pawned the goods as directed and discloses the pawnee, and the latter denies having received them, the broker, in the opinion of Joseph Caro (i.e., the text of the Ḥoshen Mishpaṭ, ib. 9), goes free; but other authorities (dating back to Alfasi) hold him liable, as it was his duty to have proof by witnesses or otherwise to the act of pawning (see "Beer ha-Golah," ad loc.). If the broker gives an article to a purchaser on trial, and it is not returned, or if he sells it on credit and can not collect the price, he must answer to the owner, unless he has acted as he did with the latter's assent (ib. 10).
It may be noticed that R. Moses Isserles, in his note on Ḥoshen Mishpaṭ, l.c., mentions the "shadkan" or match-maker as a lawful species of broker, and refers to the customs of different countries, in some of which the fee is due as soon as the terms as to dowry, etc., are made (see Betrothal), while in others it becomes due only upon the marriage. The absence of older authorities indicates that the trade of the Jewish match-maker is comparatively modern.
The rights of third parties growing out of the acts of a broker or paid agent are the same as if he were acting without compensation. These are defined under Agency.
The word "safsar" or "safsira" also occurs (B. M. 42b, 51a, 63b): once in the sense of a purchasing agent, and once in that of a commission merchant.
