§ 1 Prohibition of disclosure
All information, including the agent's/broker's property records, are expressly intended for the customer. The customer is expressly prohibited from passing on the property certificates and property information to third parties without the express consent of the agent/broker, which must be given in writing in advance. If a customer violates this obligation and the third party or other persons to whom the third party has in turn passed on the information conclude the main contract, the customer shall be obliged to pay the agent/broker the commission agreed with him plus value added tax.
§ 2 Double activity
The agent/broker may act for both the seller and the buyer.
§ 3 Owner information
The broker points out that the property information passed on by him originates from the seller or from a third party commissioned by the seller and has not been checked for accuracy by him, the agent/broker. It is the client's responsibility to check this information for accuracy. The broker, who merely passes on this information, accepts no liability whatsoever for its accuracy.
§ 4 Duty to inform
Prior to the conclusion of the intended purchase contract, the client (owner) shall be obliged to enquire with the agent/broker, stating the name and address of the intended contractual partner, whether the introduction of the intended contractual partner was brought about by the agent's activity. The principal hereby grants the agent/broker power of attorney to inspect the land register, official files, in particular building files, as well as all information and inspection rights vis-à-vis the WEG administrator, as they are due to the principal as condominium owner.
§ 5 Substitute and follow-up transactions
The client is also obliged to pay a fee in accordance with our agreed commission rates in the event of a replacement transaction. Such a substitute transaction exists, for example, if the principal, in connection with the activity carried out by the broker, learns of another opportunity to conclude the main contract from his potential main contract partner who has been proven by the agent/broker, or concludes the main contract with the legal successor of the potential main contract partner via the proven opportunity, or acquires the proven property by purchase instead of renting it, leasing it or vice versa. In order to trigger the obligation to pay commission in the case of substitute transactions, it is not necessary for the transaction subject to commission to be economically equivalent to the originally intended transaction within the meaning of the requirements developed by case law on the concept of economic identity.
§ 6 Reimbursement of expenses
The customer is obliged to reimburse the agent/broker for expenses incurred in the fulfilment of the contract (e.g. advertisements, internet presence, telephone costs, postage costs, property inspections and travel expenses), if a contract is not concluded.
§ 7 Limitation of liability
The broker's liability shall be limited to grossly negligent or wilful conduct, insofar as the customer does not suffer any damage from injury to life, body or health as a result of the broker's/agent's conduct. In the event of slight negligence, the agent/broker shall otherwise only be liable in the event of a breach of his essential contractual obligations, the fulfilment of which makes the proper execution of the contract possible in the first place and on the observance of which the customer may regularly rely (so-called cardinal obligations).
§ 8 Limitation
The limitation period for all claims for damages by the customer against the agent/broker is 3 years. It begins with the time at which the act triggering the obligation to pay damages was committed. Should the statutory limitation regulations lead to a shorter limitation period for the agent/broker in individual cases, these shall apply.
§ 9 Jurisdiction and place of fulfilment
(1) If the agent/broker and the customer are registered traders within the meaning of the German Commercial Code, the place of performance for all obligations and claims arising from the contractual relationship and the place of jurisdiction shall be the broker's registered office.
(2) Consumer arbitration
The European Commission provides a platform for online dispute resolution (OS), which can be found here: http://ec.europa.eu/consumers/odr. The broker/agent is neither willing nor obliged to participate in dispute resolution proceedings before a consumer arbitration board.
§ 10 Severability clause
Should one or more of the above provisions be invalid, this shall not affect the validity of the remaining provisions. This shall also apply if one part of a provision is invalid but another part is valid. The respective invalid provision shall be replaced between the parties by a provision which comes closest to the economic interests of the contracting parties and does not otherwise run counter to the contractual agreements.
3. guidelines for drawing up individual agreements Freely negotiated contracts, so-called individual contracts, always take precedence over general terms and conditions. Since brokerage contract law is permeated by the principle of freedom of contract, individual contracts effectively allow all agreements to be made up to the limits of immorality, illegality and abuse. However, individual agreements are very difficult to draw up. The individual contract must be freely negotiated in order to determine, discuss and clarify the different interests, ideas and views of the parties and to formulate and sign them by mutual agreement.
Individual agreements are very difficult to draw up. The individual agreement must be freely negotiated in order to identify, discuss, clarify and formulate and sign by mutual agreement the different interests, ideas, perceptions of the parties. This is the golden compromise to be negotiated. In doing so, the broker must disclose to his client everything that would normally not entitle him to the commission, but which he would like to successfully claim by agreement with his client. This is because the agent/broker is obliged to present and prove an individually negotiated clause. He has to prove that a real negotiation of the clause has taken place, and for this he is best served by a witness at the negotiations. Such a case may be illustrated by the example of the negotiation of a qualified agent's/broker's subcontract: The intermediary/broker presents his customer with a simplified form contract, a so-called simple intermediary/broker contract in the form of general terms and conditions and talks through the individual clauses with him, explaining them to him. The simple agent's/broker's commission only prohibits the client from engaging other agents/brokers during the term of the contract. Then the broker explains to the client the qualified form of the agent's/broker's subcontract, namely that he would like to be called in if the client finds interested parties himself, that the potential buyers are to be referred to him so that he can successfully conclude the transaction and that he will receive the full commission accruing in the event of success in the event of a breach of this agreement. This individual agreement should be handed over to the client in a special document, together with a reflection period of perhaps 2 days at the longest. If the client countersigns this agreement, the individual agreement should stand up to scrutiny by the courts with some certainty.
Individual agreements, rather than general terms and conditions, are essentially to be entered into in the following cases:
a. When agreeing on a so-called qualified brokerage agreement The so-called qualified brokerage/brokerage agreement restricts the freedom of the brokerage/brokerage client in so far and to the extent that the client is not allowed to engage other brokers/brokers for the duration of such an agreement, nor is he allowed to sell the property himself. The prohibition of self-dealing means that during the term of the qualified brokerage agreement only the agent/broker who has concluded the agreement with the customer is entitled to prove and broker the property and the customer must refer all interested parties he finds himself or who approach him because of the purchase of the property to his appointed agent/broker, to involve the agent/broker so that the latter successfully brings about the transaction between seller and buyer. This case is usually combined with the further agreement that in the event of a breach of the agreed involvement and referral clause, the principal will pay the full commission.
b. In the case of acquisition of the property in a compulsory auction To secure the broker's commission in the case of acquisition of the customer's property by way of a compulsory auction, an individual agreement must be made. This is necessary because the law on intermediary/brokerage contracts grants the intermediary/broker a claim to commission for the proof or brokerage of a contract (§ 652 I p. 1 BGB), but not for the acquisition of the property within the framework of an act of sovereignty, i.e. the knockdown in the compulsory auction. This is not changed by the fact that the economic result is equally achieved in the acquisition of the property.
c. In so-called interlocking cases If the customer promises the agent/broker a commission in the knowledge of circumstances which in themselves prevent the agent/broker from charging a commission, then the customer must pay the commission. As a rule, interlocking cases require the successful conclusion of the transaction, the legally effective notarial contract. However, they find their defect in the causal connection. This is because they are usually agreements concerning remuneration which, according to the will of the parties, should be independent of a causal activity of the intermediary/broker in the sense of § 652 I S. 1 ("as a result of"). In the case of such a promise of commission, the customer is aware of the obligations of the intermediary/broker and the fact that the intermediary/broker cannot receive a commission in these cases.
d. In the case of performance-independent commission promises The payment of a performance-independent commission contradicts the guiding principle of the law on intermediary/broker contracts. This is because the agent/broker contract presupposes an agent/broker client who is free in his decisions and who only has to pay the commission in the event of success, i.e. with the legally effective conclusion of the notarial contract. Consequently, a success-independent fee/commission can never be ensured by pre-formulated general terms and conditions, but always only by individual agreements. In this respect, there is a brand new decision of the Federal Supreme Court of 12.10.2006, file number III ZR 331/04, in which the Federal Supreme Court clarified that the statement of a client that a fee/commission will be paid to the agent/broker in any case of a sale of the house can constitute such an independent success-independent fee/commission promise, even if the contract is ultimately concluded without the agent/broker. The prerequisite is that the agent/broker has done something at all, such as preparing an exposé. Only if there is no consideration whatsoever on the part of the agent/broker can there be a promise to make a gift, which would be invalid without notarisation.
