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.

If the exposé has been sent by e-mail and the buyer has agreed to the visit by telephone, the brokerage agreement has been concluded with the exclusive use of telecommunication means. In accordance with section 312d (1) sentence 1 BGB (German Civil Code), a right of withdrawal in accordance with the provisions of the Fernabsatzgesetz (Distance Selling Act) existed if the contract was concluded within the framework of a sales and service system organized for remote sales.

A real estate broker uses a sales and service system organized for remote sales when he advertises real estate which he manages on an online market place (here: “ImmobilienScout24”), establishes contact with his customers electronically or by telephone and the contract is concluded in this way.

The right of withdrawal in the case of brokerage fees concluded before 13 June 2014 by means of distance selling shall expire on the expiry of 27 June 2015, if the broker has not informed the consumer of the right of revocation.

The court decided that if the broker has not informed the consumer of the fact that if he chooses to exercise his right of revocation he then needs to compensate the broker for services already provided, the broker does not have a claim for a such compensation pursuant to § 312e para. 2 BGB (German Civil Code).

Art. 2 Directive 97/7/EC
Directive 2011/83/EU

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