estate agents

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Differentiation of the commercial agent from commercial agent and commission agent

The term of the broker (formerly broker from Low German maken today make , and today find fault in Low German brokering in the original meaning do business ) called in Germany the broker an opportunity to enter into contracts. The legal model of this profession is expressed in German civil law in the provisions on the brokerage contract§ 652 ff. BGB ) and on the commercial broker§ 93 ff. HGB ). According to the prevailing opinion, the brokerage contract is not a mutual contract , because there are no main obligations to each other in the Synallagma . Above all, the brokering of land or tenancies, as well as of securities and acquaintances with the intention of getting married is known. In principle, not every broker needs a special permit according to § 34c GewO , but only those who work commercially in the fields of activity specified in this standard. The legal basis for carrying out the profession is regulated in the Broker and Property Developer Ordinance (MaBV).

Basic rights and obligations

The main obligation of the brokerage contract is the duty of the client to pay the brokerage fee in the event of success. There is no obligation of the broker to act or of the client to take advantage of the proven opportunity to conclude. Since the legal rules on the brokerage contract can be changed within the scope of the contractual freedom of the parties and there are numerous special regulations in special laws, a large number of special cases have emerged in legal practice. However, the broker must protect the interests of both parties and is liable for damage caused by his fault (duty of care § 98 HGB). Immediately after the conclusion of the transaction, he must provide each party with a contract note drawn up by him , which contains the essential parts of the contract (certification § 94 , § 100 HGB). If only one game is named in the final note, it may have to U. enter into the contract yourself (self-entry § 95 HGB).

Commercial broker

A commercial broker is someone who takes on the brokerage of contracts for commercial transactions for others without being entrusted by them ( Section 93 HGB). They act on foreign names and foreign (its) account . According to Sections 93-104 of the German Commercial Code (HGB), they deal with the brokering of contracts for the purchase or sale of objects that play a role in trade and thus in the markets (goods, securities , insurance , freight transport, ship rental). The subject of a brokerage contract can also be immovable items, but the provisions of the HGB do not apply (e.g. no contract execution, no brokerage rules according to HGB).

The insurance broker is a special case . In contrast to the independent intermediary, the insurance broker is not between the parties, but exclusively on the side of his customer. As a rule - but not necessarily - the insurer alone owes the broker's fee. This has developed into customary law because, due to the official control of the insurers' legal transactions, the traffic assumed very early on that this brokerage was a contract copy for the insurer alone, which excluded brokerage at the expense of the policyholder. The Federal Court of Justice (BGH) also considers it permissible that insurance brokers instead impose on the policyholder the obligation to pay the broker's fee in a so-called brokerage fee agreement in the case of a so-called net policy.

Civil agent

The provisions of §§ 652 to 656 BGB apply to civil agents. This deals with contracts, the respective regulation of which is located in the BGB ( rental contracts , purchase contracts for land, loan contracts ). In contrast to commercial brokers, civil brokers can already acquire a commission claim if, as a result of their evidence of an opportunity to conclude a contract, a contract is concluded. To do this, there must be a causal link between the brokerage activity and the conclusion of the contract. The conclusion of the contract must "present itself as the realization of an opportunity which, in an evaluative view and taking into account the public opinion, is to be regarded as identical to the opportunity to conclude a contract proven by the broker."

Course broker

§ § 29 ff. BörsG regulate the interests of the broker. They are officially appointed and sworn trading brokers who participate in the official determination of stock exchange prices. They have to accept orders from every trader authorized to participate in stock exchange trading and they have to participate in the official price determination . Brokers are subject to severe restrictions on proprietary trading. They are appointed by the exchange supervisory authority at the suggestion of the exchange board.

Differentiation of brokerage activity according to type of degree

Reference broker

The evidence broker provides evidence of the opportunity to conclude a contract. He is not responsible for the quality of a service, but only for the possibility of concluding a contract about it. The client instructs the broker to name an interested party, but forbids him to contact him.

A mere evidence broker does not require any special expertise. The evidence broker must always name a specific contract option. For example, if the broker sends the client a list of 500 interested parties, there is no entitlement to commission, since the mere transmission of a list of interested parties with the ability to identify the interested parties does not constitute evidence. The reference to a possible contractual object alone is therefore not sufficient.

Placement agent

In contrast to the evidence broker, the broker has to enable the interested party to enter into concrete contractual negotiations with the third party without further ado and to influence the will of the contractual partner to conclude the contract. He must therefore lead a prospect who has not yet been ready for a deal.

The broker lawfully acting for both parties is legally obliged to be neutral and has to carry out his activity taking into account the interests of both contracting parties. The broker can be prosecuted if, for example, he withholds known defects. The broker negotiates with both parties to close the deal. As is customary in the trade, the broker is viewed as a seller with special obligations. Examples are real estate agents , corporate agents , and marriage brokers .


The fee of the broker is commission called or brokerage. The amount of the commission is freely agreed and is limited differently for sale and rental.

  • In the case of sales, the commission can amount to between 3 and 6 percent of the purchase price plus sales tax (then 3.57 or 7.14 percent), depending on the local amount.
  • In the case of renting, the commission is limited by the law governing housing brokerage ( WoVermRG ) to two monthly rent plus statutory sales tax ( Section 3 (2) sentence 1 WoVermRG).

Unless a party agreement or a certain commercial custom stipulates otherwise, both parties to the brokered contract are debtors of the brokered contract, each half of the broker's commission , according to § 99 HGB. When a seller offers a property through a broker, a seller often demands a customer commission - with which he contractually transfers the brokerage costs incurred to the customer.

The broker's commission is due when a sales or rental agreement is concluded (success fee), so that every advance payment by a broker is at his own risk. A distinction is made between exclusive contracts and open contracts in which the interested party or provider himself or other brokers are allowed to act.

If an interested party or owner has not used a broker for his real estate offer, he can offset his advertising and time costs indirectly through the purchase price or rent to the buyer or tenant. Conversely, interested parties can try to compensate for their search costs, for example over rent-free months or free ancillary services.

See also

Web links

Wiktionary: Broker  - explanations of meanings, word origins, synonyms, translations

Individual evidence

  1. ^ Friedrich Kluge: Etymological dictionary of the German language . 24th edition. Walter de Gruyter, Berlin / New York 2002, ISBN 978-3110174731 .
  2. Archived copy ( Memento from January 28, 2015 in the Internet Archive )
  4. ^ BGH, judgment of III. Civil Senate of June 14, 2007, Az. III ZR 269/06 full text
  5. BGH, January 18, 1996 - III ZR 71/95 , MDR 1996, 786ff., Cf. BGH, February 6, 2014 - III ZR 131/13 .
  6. BGH, judgment of 17 December 2015 - I ZR 172/14 paragraph. 20th
  7. Claus Peter Müller-Thurau: Sales expertise for real estate agents . Haufe Group, Freiburg / Munich 2013, p. 150 ff. ( Google Books )