Brokerage agreement

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The brokerage contract (Switzerland: brokerage contract ) is a private law contract by which the client undertakes to pay the broker a brokerage fee for the brokerage of a contract or for proof of the opportunity to conclude a contract .

Legal situation in Germany

In the German Civil Code (BGB), this type of contract (still under the outdated designation broker contract ) is regulated incompletely and rudimentary in the provisions of §§ 652 ff. BGB. Four general paragraphs ( Sections 652 to 655 BGB) follow the provisions on the loan brokerage contract between an entrepreneur and a consumer , in which there are special protective provisions in favor of the consumer (Sections 655a to 655e BGB) as well as on the legal relationships in marriage mediation ( Section 656 BGB). Due to the rudimentary codification , brokerage law is a domain of judge law .

According to this legal model, the brokerage contract is a separate type of contract: The broker is not obliged to take action, so he owes neither the proof nor the mediation of a contract, not even the effort to do so. The wage entitlement, however, requires proof of the opportunity to conclude a contract or to broker it, as well as 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."

The brokerage contract is not a mutual agreement according to prevailing opinion, as no one another Synallagma standing main duties consist. Since this legal model does not usually correspond to the wishes of those involved, it is often waived.

In principle, the brokerage contract does not require any special form. It can therefore come about in writing , orally or through conclusive behavior (implied action), however, deviating from the general rules regarding the conclusion of the contract, a special rule of ambiguity applies , according to which it is up to the broker to eliminate any ambiguities on the part of the interested party what i. d. As a rule, this can only be done sufficiently clearly through an express request for commission. Deviating from the general rule, the contract for the mediation or proof of the opportunity to conclude rental contracts for living spaces in accordance with 2 Para. 1 S. 2 WoVermRG in text form , in the case of a loan brokerage contract with a consumer, according to § 655b Abs. 1 S. 1 BGB in writing required. When arranging real estate transactions, depending on the structure of the brokerage contract and the resulting impairment of the client's freedom of will, the analogous application of the formal requirement from § 311b BGB to the brokerage contract may already be considered.

If no brokerage fee has been agreed, the fiction of § 653 BGB applies . According to this, a broker's fee is deemed to be tacitly agreed if, under the circumstances, the service transferred to the broker could only be expected against remuneration. If the amount of the remuneration is not determined by the contracting parties, the tax-based wage is to be regarded as agreed if there is a tax rate, and in the absence of a tax rate the usual wage. In practice, this rule is restricted by the ambiguity rule in case law.

Often the broker works for both contracting parties, which is permitted by Section 654 of the German Civil Code (BGB), provided that it does not run counter to the content of the brokerage contract. Otherwise the wage entitlement is "forfeited". This forfeiture rule has been expanded by case law and literature beyond its original scope and also in numerous other cases of unfaithful brokerage the claim expires. Such a criminal provision is a specialty in the system of the BGB.

In commercial broker that particular goods and securities convey find §§ 93-104 of the Commercial Code (HGB) apply to intermediaries in retail traffic ( Chandler brokers ) only in weakened form, § 104 HGB.

Brokers who broker or provide evidence of land , leasehold rights, commercial spaces, living spaces, loans and certain shares, require a special permit according to § 34c GewO ( trade regulations ). A special professional qualification or training is not a requirement; All that is required are a lack of previous convictions and an orderly financial situation. In addition, the broker and property developer regulation regulates certain aspects of the professional practice of the broker.

Loan agency agreement

Loan brokerage agreements between a company and a consumer are regulated in Sections 655a to 655e BGB . Among other things, the following is regulated here:

  • the contract must be in writing ,
  • the fee is only due after the loan has been paid out (and the withdrawal period has expired ),
  • pre-contractual information obligations according to Art. 247 § 13 EGBGB are to be observed.

Real Estate Agent Agreement (Purchase)

A distinction is made between three types of brokerage agreements

In the case of a simple brokerage contract, there is no obligation for the broker to act in accordance with the statutory provisions. However, the broker is only entitled to commission in the event of success. In the event of a dispute, brokers can provide the necessary proof with a written proof of real estate .

In the case of a sole contract, the broker's client waives commissioning another broker. In return, the broker undertakes to take action. The owner still has the right to act himself and to sell his property without the broker being entitled to commission. However, if the client sells his property through another broker, he must pay the commission agreed with the broker. The sole contract is agreed for a fixed term.

A qualified sole order is an individual agreement (i.e. not in general terms and conditions ). Here it can be agreed that the client should not be entitled to sell the property to his own interested parties without the involvement of the broker (historical note: until December 31, 1998, the written form was required at least for the qualified sole contract).

In practice, the contract is often concluded when the broker provides a synopsis or proof of the property, stating his commission. The interested party accepts the brokerage contract by signing proof of the property, or by implied behavior if he has the property verified. In order for the contract to be effective and proper, the real estate agent must also fulfill certain information requirements. The broker must explicitly explain the brokerage fees and who has to pay them, the cancellation policy, the contents of the brokerage contract and his identity as an entrepreneur.

The brokerage contract often runs for a certain period of time, which can be agreed in the contract. Thereafter, the customer can give notice of termination at any time, often with a period of one month. For buyers or tenants previously recruited by the real estate agent , a commission claim remains even after the termination if a purchase or rental is then made. The period of the commission claim can be regulated in the brokerage contract. In addition, a so-called "bond" can exist after the brokerage contract has expired. This is the case if a prospective buyer mediated by the broker only concludes a purchase contract with the seller after the brokerage contract has ended. This bond is usually 6 months and usually expires after 12 months.

Real estate brokerage agreement (rental apartments)

In addition to the regulations of the BGB, the Housing Agency Act must be observed in the case of contracts for the mediation of rental apartments (and houses) .

Essential regulations are

  • the contract must be in text form,
  • There is no claim to commission from the apartment hunter (tenant) if the broker is also the owner, manager, tenant or landlord or (if the landlord is a legal person) is legally or economically involved (§ 2 No. 2 and 3 WoVermRG),
  • the broker's commission for those looking for accommodation (tenants) is limited to two months' rent (plus sales tax ) (Section 3 (2) WoVermRG).

Insurance brokerage contract

The brokerage contract exclusively regulates the internal relationship between the policyholder and the insurance broker . Therefore, the brokerage contracts are not to be accepted by the insurer . The external relationship between policyholder, insurer and insurance broker can be regulated by a power of attorney .

termination

The brokerage contract can be terminated at any time without giving reasons in accordance with Section 627 of the German Civil Code (BGB) on the basis of the special relationship of trust that the policyholder has with the insurance broker .

Points catalog

In order to avoid grievances in the field of insurance brokerage, the General Association of the German Insurance Industry (GDV) and the Association of German Insurance Brokers (VDVM) - today the Federal Association of German Insurance Brokers (BDVM) negotiated a "points catalog to avoid improper brokerage contracts" in 1980, which was published in 1981 entered into force. The provisions of the points catalog are designed in such a way that they meet the legal supervision of the Federal Financial Supervisory Authority (BAFin) . The point catalog should take the interests of the policyholders into account (consumer protection) and ensure fair competition among brokers.

Although the points catalog has been registered with the supervisory authorities ( BAFin and Federal Cartel Office ) in accordance with Section 102 of the Act against Restraints of Competition (GWB) , it is not binding law.

content

  • The contract can be described as a brokerage contract.
  • The broker must specify the full company name with the additional designation insurance or insurance broker in the contract.
  • The purpose of the insurance brokerage must be clearly stated. An obligation solely to administer and support insurance contracts is not permitted.
  • The settlement of claims may only be carried out for insurance contracts that the broker brokered or transferred to his portfolio.
  • The broker should not ask his clients to act as an exclusive agent.
  • The broker may not carry out his activity for free. He receives remuneration i. d. Usually from the insurer to whom he has successfully referred his customer, the potential policyholder. This distinguishes him from the insurance advisor, who is not allowed to receive his remuneration from an insurer (cf. § 34e paragraph 3 sentence 1 GewO) and is still not allowed to be economically dependent on insurers (see § 59 paragraph 4 VVG).
  • If agency powers are agreed to conclude new or terminate existing insurance contracts, these must be expressly designated as such.

Legal situation in Austria

The brokerage contract is regulated in Austria in the Broker Act. The subject of a brokerage contract is that the broker mediates business with a third party for a client.

Establishment / termination

As in Germany, no written form is required. For reasons of evidence, however, brokerage agreements are often made in writing.

If no specific contract duration has been agreed, the brokerage contract can be terminated by either contract partner at any time without observing a notice period (Section 13 Broker Act).

Special features of the brokerage contract

  • Prohibition of dual activity for buyer and seller (without the express consent of the client, § 5 Broker Act)
  • In contrast to German law, if several brokers are involved, the client only owes the wage once. The broker "whose merit has clearly outweighed the brokerage" is entitled to commission (§ 6 Broker Act).
  • An exclusive brokerage order (Section 14 Broker Act) can be agreed in the contract.

Subforms of the brokerage agreement

  • Real estate brokerage contract (Sections 16-18 Broker Act)
  • Commercial brokerage agreement (Sections 19-25 Broker Act)
  • Merchant brokerage agreement (§ 25 Broker Act)
  • Insurance brokerage contract (§§ 26–32 Broker Act)
  • Personal loan brokerage agreement (Sections 33-40 Broker Act)

Legal situation in Switzerland

The brokerage contract is regulated in Switzerland in the Code of Obligations .

Through the brokerage contract, the broker receives the order to provide evidence of the opportunity to conclude a contract in return for payment or to mediate the conclusion of a contract (Art. 412 Paragraph 1 OR). The brokerage contract is generally subject to the provisions on simple orders (Art. 412 Paragraph 2 OR). The broker's remuneration is earned as soon as the contract is concluded as a result of the evidence or as a result of the broker's mediation (Art. 413 Paragraph 1 OR).

The cantons make detailed regulations on the brokerage contracts of "stockbrokers", "sensals" and "job brokers".

See also

Individual evidence

  1. ↑ a b c d Detlev Fischer: The economic approach in real estate brokerage law: Contours for §§ 652 to 654 BGB by the case law of the BGH . In: NZM 2016, pp. 117–122.
  2. ↑ BGH, January 18, 1996 - III ZR 71/95 , MDR 1996, 786 ff., Cf. BGH, February 6, 2014 - III ZR 131/13 .
  3. ↑ Michael Drasdo: The implied conclusion of a brokerage contract , NJW Special 12/2012, 353.
  4. ↑ Arnd Arnold - Staudinger , BGB §§ 652 and 653, revision 2016, Rn. 4ff, 10ff.
  5. ↑ Dirk Looschelders : law of obligations special part . 8th edition. Vahlen, Munich 2013, ISBN 978-3-8006-4543-5 , Rn. 769 .
  6. ↑ dismissal: Free or simple brokerage. Retrieved June 24, 2019 .

literature

  • Detlev Fischer: The development of brokerage law of brokerage law in the second half of 2016 , in: NJW 2017, 1219 (preliminary article “… since 2015” in NJW 2016, 3281).
  • Hendrik Ph. Fröber: The emergence of the provisions of the BGB on brokerage agreements (§§ 652–654 BGB) and the case law of the Reichsgericht on the new brokerage law . 1997, ISBN 3-631-31045-5 .
  • Hans-Eberhard Langemaack: Brokerage contract law as reflected in current supreme court case law - On the way to becoming an “expert in the real estate industry” , in: NZM 2008, pp. 18–23.
  • Falk Schulz: WoVermG - Comment . 1st edition 2010, ISBN 978-3-8028-0574-5 .
  • Falk Schulz: The case law on brokerage law in 2000, Zeitschrift für Miet- und Raumrecht (ZMR) 2002, 11 ff. And 102 ff.
  • Engel, mistakes and misunderstandings in brokerage law , monthly for German law (MDR) 19/2009, p. 1090.
  • Schwerdtner, Peter / Hamm, Christoph: Maklerrecht , 7th edition, CH Beck, Munich 2016, ISBN 9783406672682 .

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