Source: www.immonet.de
"Agents are liable for incorrect information - even for their clients
(free by: BGH, Judgement of 22.9.2005 - III ZR 295 / 04 - and
BGH, Judgement of 14.12.2000 - III ZR 3 / 00 -)
Furthermore, if the titular metaphor continued validity, like the two recent top court cases decided from the brokerage and real estate sales contract law provide information
.
A real estate agent, whose work to conclude a sales contract has done, is usually already a happy man but he should be particularly happy if the notarial land purchase contract contains a clause which assures him a direct claim against the buyer. Such a clause making the purchase contract for a contract for the benefit of third parties. The broker earned a right to receive cash without having the buyer ever signed a contract and thus gains added a debtor, for his client, the seller is, of course, it also, then jointly and severally liable with the buyer's obligation to pay. This law with so many advantages for the broker blessed situation may also arise even in the opposite operate.
what happened in this case. The defendant had received the order from a couple to find a buyer for its Art Nouveau villa. The broker did this successfully and was then present at the notarization of his famous treaty. The contract contained a warranty and the assurance that the seller was the existence of secret defects such as sponge or wood tick unknown. Both sellers and brokers knew, however, that the house had been suffering for several years, a substantial house borer infestation. was also a clause was buying part of the contract, which follows. "The contract is evidence of the defendant to come about, the buyer holds the seller from the obligation to pay the broker's fee-free and therefore undertakes to pay the agent a commission of 5.5% of the purchase price plus 15% VAT. "Subsequently, the plaintiff paid the defendant a sum of 101 200 DM. After the applicants were aware of the strong house borer infestation, they took not only the seller to refund the purchase price of train to train against restitution of the land claim, but requested by the defendant also repay the broker salary. The court referred to the plaintiff, and was
claims conditions in this case, the common law: Although the following legal grounds Solidified the legal institution of culpa in contrahendo (now: § 311 para 2 BGB). This generally requires the existence of a pre-contractual trust. The problem in this case is that between the plaintiff and defendant never a contract has been made, but both parties had entered into a contractual relationship only to the seller. The broker as a third party beneficiary of the purchase contract gives, according to settled Supreme Court jurisprudence merely a right to claim the eliminated. But when a pre-contractual trust eist possible, but will not ever planned a contract between the parties to that relationship? For the privilege, which the broker emanating from the Treaty for the benefit of third parties, the Court considers that it should result also corresponding duties of care, which are sufficient for a relationship of trust within the meaning of culpa in contrahendo. The question is only whether the information fell outside the buyer about hidden defects in these duties of care. Other hand, suggest that that this was a typical debtor duty, which, for example, send a double agent who was in a contractual relationship with the parties on all sides of the contract. Such a double agent status arises not by the clause in the contract, which the brokerage fee payable by the seller on the buyer's passing. For over the buyer, the broker is not liable, but only creditors.
was
Despite these doctrinal concerns can be justified to burden an estate agent, who conceals his deceit known defects, and in this way essential to the emergence of his right to commission contributes to a repayment obligation.
The practice is the real estate agents to recommend that in cases in which shifted the seller's obligation to pay the broker a contract clause in favor of third parties to the buyer, the purchase contract carefully to check on possibly contained therein fraud schemes and, when relevant to the buyer of the substantive shortcomings of the treaty.
Another supreme court established a commission refund obligation of a broker, however, is not unambiguously good judge:
Thus, the Supreme Court decided in a rather more recent ruling, the invalidity of the main contract due to a change (Author's note: The legal institution of rescission since 2002 no longer exists, its replacement by the resignation took effect) of the contract let by the buyer, at least then the broker's commission is expunged afterwards, if the buyer the contract by a challenge for fraudulent misrepresentation acc. § 123 paragraph 1 BGB could take them down.
In the case in question the plaintiff a house property at a price of DM 185,000 had purchased and paid for to the defendant a commission of DM 6382.50. With the claim that the purchased house for leaving many, the seller fraudulently concealed defects, they raised in May 1996 against this Wandelungsklage. The district court granted the application of law and stated the grounds that the structural condition of buildings was so insufficient that there is danger of collapse. This deficiency, the defendant's concealment of fraudulent seller. The broker was unaware of the defective Condition of the building.
then took the buyer, the defendant both for reimbursement of the broker's commission as well as damages in a total amount of DM 186,820.60 last to complete. District Court and Court of Appeal dismissed the action. The Federal Court found, however, the buyers are entitled to the reimbursement of the agency fee in the amount of DM 6382.50.
led In support of the court, the plaintiffs could according to a claim.
invoke § 812 para 1 sentence 1 BGB of unjust enrichment. This behavior is so because the liability of the buyer was subsequently eliminated.
§ 652 para 1 BGB, the emergence of a right to commission the agent makes depends only on the validity of the final contract, but not its execution. Circumstances that preclude an effective conclusion of the main contract or as it did from the beginning appear ineffective, such as; form invalidity, illegality, immorality, avoidance for mistake or fraud precluded a commission requirement. Circumstances that eliminate the contract without a final-lay imperfection, only the performance of its contractual obligations for the future (as subsequent frustration, resignation, retirement or termination of the contract by mutual agreement) let the commission is unanimous Court regularly affected (for many BGH, Judgement of 11 November 1992 - IV ZR 218/91 -). Any such subsequent ex nunc elimination of performance requirements are also in the Institute of rescission.
If the understandable reasoning of the court. A contract that is being challenged and therefore is regarded as void ab initio may not trigger a brokerage fee of the broker, because a contract is precisely necessary condition for the emergence of such a claim. Different is to have revealed, however, if a Party is dissolved in retrospect, effective for the future of your contractual obligations. This is likely to healthy sense of justice not be borne by the broker.
The court here, however, disagrees. In situations, where due to the buyer at the same time a right of challenge on grounds of fraud, be it for the broker a purely random event, whether the buyer to exercise this right of rescission or of its conversion right. Because of this contingency should the broker does not benefit from the choice of consumers. The only requirement is that the one-year warranty period of § 124 BGB was in progress. This view of the Court but leaves out of account that the buyer has in his choice just the way the Loss of the commission refund claim on a plea of rescission or cancellation in accordance with current law of the einzukalkulieren. The court states, namely, the buyer's choice depends largely on him in a particular case cheapest legal implications. It draws not the right conclusions, but allows that the buyer get the benefits of rescission with respect to a rescission of the contract after enrichment law to challenge the benefit, but without having to simultaneously deprive him of it in relationship to the broker resulting disadvantages . Moreover, the result of the Supreme Court is dogmatic difficult justified, and it arises rather a mere balancing of interests, unfortunately at the expense of the broker.
Honesty has the longest-this beautiful maxim holds good, not in this case, unfortunately. After all, whether the broker had knowledge of the defects or not, his right to commission it would have been deprived in both cases.
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