When does a brokerage contract come into existence and when is the prospective buyer obliged to pay a broker’s fee?

Decision of the German Federal Court (Bundesgerichtshof) I ZR 30/15

The case concerns the applicant’s claim for payment of a broker’s commission by the respondent for the sale of a plot of land.

In its deliberations the Federal Court of Justice (Bundesgerichtshof) ruled that if the real estate broker submits an exposé to a prospective buyer, which contains a clear commission requirement, this is an offer to conclude a brokerage contract. This offer is already accepted by the buyer when he asks the broker to arrange a visit. In such a case, the contract will not be concluded automatically when the purchaser agrees the appointment with the broker. In the present case a brokerage contract has come to an existence on the basis of implied conduct by the parties.

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