On 23.12.2020, new standards for broker contracts or contents of a commission agreement entered into force. With these, the legislator introduces compulsory forms for the first time and for certain types of broker transactions predefined boundaries on commission agreements.
§ 656a BGB - Legal form
The new § 656a BGB determines that broker contracts, which have the proof of the opportunity to conclude a purchase agreement on an apartment or a detached house or the mediation of such a contract, have been subject to at least the text form (§ 126b BGB) since 23.12.2020. Contract terminations by fax or e-mail are also effective. In contrast, oral agreements are well formed, which is why the broker could not demand the fulfillment of the customer's obligation to pay even after performance.
New statutory content restrictions:
Furthermore, the legislators in §§ 656c - 656D BGB restrict the design freedom of the parties of the broker contract. Section 656C BGB has a double activity of the broker for both parties to the regulatory object, while § 656d BGB regulates the cases of non-contractual cost recovery on the buyer. In both cases, the legislators anchored the ordering principle if the buyer is a consumer according to § 13 BGB.
§ 656c BGB - Commission payment obligation of the involved
According to the new provision, a broker can only receive contractually effective remuneration for dual activity if both parties commit to the same amount. If a broker agrees to work free of charge with one of the parties to the sales contract, he cannot have the other party promise him a brokerage fee. A decree also works in favor of the other contractual partner of the broker.
The law causes a half division of the commission at the following constellation:
- The commitment of the broker refers to a detached house or apartment,
- The broker has signed a broker agreement with the seller or is in another way for him (eg in the form of a free order) to prove or convey a buyer for his object and
- The broker must have justified a broker contract with the buyer to prove or convey this seller for the affected object and the buyer is a consumer.
Under these conditions, a division of the commission is mandatory. A deviating and thus inadmissible regulation to the division of broker costs (eg 25%: 75%) can not be recycled to the half-division principle as part of a purposeful reduction. Legislative consequence of this deviation is the nullity of both broker contracts and the elimination of the remuneration claim against both broker customers.
§ 656d BGB - non-contractual agreements between broker and buyer
If only one party of the purchase contract has also completed a broker agreement, an agreement which obliges the other party to pay or reimburse brokerage salary only effective if the party of the brokerage contract is obliged to pay the brokerage wage at least at the same amount. The claim against the other party (which has not completed the brokerage agreement) is due only if the party of the brokerage contract has fulfilled its obligation to pay the brokerage salary and she provides proof of fulfillment itself or the broker.
According to the will of the legislator, the parties to the purchase contract can make agreements on the proportional assumption of the brokerage costs by the buyer (consumer) if the broker's contractual partner remains obliged to pay a commission of at least the same amount. This applies both to agreements between the parties to the sales contract from which a direct or indirect claim by the broker results (contract in favor of third parties, acceptance of performance, indemnification, etc.), as well as agreements between the broker and the party who is not his contractual partner ( e.g. assumption of debt).
Even a simple debt of the party not involved in the brokerage agreement separates in the future, taking into account the new § 656d BGB. Consequence of a reduction in debt is the emergence of a joint debtor of sellers and buyers with the consequence that the broker by the buyer could demand the full fulfillment of the payment obligation with the performance of the seller. This could demand the broker of another party as his contractor, the purchaser, the broker commissions full of height. But this should prevent § 656d BGB.
In addition, the acquirer of the property is protected by the maturity control of § 656d para. 1 sentence 2 BGB. This standard prevents the priority use of the buyer, the broker must first pursue its claim to the actual client and consolidate the fulfillment of the obligation to pay by the client to the buyer against (real due maturity). This leads to the regrettable dilemma that the broker can not demand and lose the claim against the buyer in the case of bankruptcy of his client and thus in the event of permanently lacking payment. The legislator consciously accepted that.