Sole contract
A single order , even sole agency or brokerage services contract under German law governing brokers an agreement providing for an exclusive contractual relationship between brokers and clients. What is meant by this is that, for example, a real estate agent , and only this one and no one else, is given the assignment to broker a property. In the case of an extended or qualified sole order , the conclusion of a contract on the initiative of the seller without involving the broker is also excluded.
Differences to the brokerage contract and other forms of contract
In contrast to the brokerage contract, the sole agent must act “in an appropriate manner” for the client. If he does not do this, he can according to § 280 Paragraph 2, Paragraph 3 in conjunction V. m. §§ 281 ff. BGB make it liable for damages . The scope of the activity is determined by the contract and the interests of the contracting parties, which are to be measured against the standards of good faith . The broker remains independent of instructions, so he is not an employee or sales representative . However, if the client links precisely described activities, including time information, with certain amounts in the order, he is given a say in shaping the activities. A unilateral termination of the contractual relationship by revocation is excluded (so-called firm hand specification or firm order ).
Remuneration of the broker
A sole order can also receive an expense reimbursement clause in addition to the commission claim. A commission safeguard clause in the brokerage contract guarantees the broker a monetary claim in every case of the property sale during the term of the contract, whereby it must be determined through interpretation whether it is an extended commission promise, a flat-rate claim for damages or the promise of a contractual penalty. If there is no provision security clause, the broker is still entitled to compensation in the event of the client breaching contractual obligations, which may, however, be less than the commission.
Contract duration
The restrictive commitment to a broker is compensated for by an appropriate time limit on the duration of the contract. For a normal real estate brokerage contract, six to eight months are still appropriate, for houses the duration can be up to twelve months. After this period the contract ends automatically without having to be terminated. However, longer terms are possible with so-called trusted brokers. The right to termination without notice due to inaction by the broker or other breach of duty is not invalidated by a notice period of several months entered in the contract.
Legal practice
The differences to the brokerage contract, which are advantageous for the broker, mean that many brokers tend to only carry out their activities in the context of sole orders through corresponding general terms and conditions. Although the terms and conditions are subject to judicial control, this can lead to a disadvantage for the client.
Legal treatment
The design of the sole order originates from the customary general terms and conditions and is not subject to any statutory regulations of its own. The general brokerage law is applied in modified form so that the provisions of service , agency and work contract law apply. Claims for reimbursement of expenses arise from order law . Since 1999, single orders no longer require the written form . Special features can result from the Housing Agency Act.
Individual evidence
- ↑ Federal Court of Justice , judgment of February 2, 1994 - Az. IV ZR 24/93; NJW -RR 1994, 559.
- ^ Higher Regional Court of Munich , NJW 1969, 1630
- ↑ Watch out as hell, DER SPIEGEL 8/1996
Herbert Roth , in: Munich Commentary on the Civil Code. 5th edition. CH Beck, Munich 2009, § 652
