the netherlands

324 the enforceabilit y of promises

italy

Claude is liable to the agency for its expenses if it has not found a buyer. Claude is liable instead for 5 per cent of the sales price if Homes has found a buyer although no sales contract has been signed.

If Homes has not yet found a buyer, it nevertheless has the right to recover its expenses15 according to art. 1756 of the Civil Code.16

The contract says that Homes would receive the 5 per cent commission ‘if it found a buyer’. Therefore, Claude is bound by his promise to pay the commission even if he decides not to sell the house as long as Homes found a buyer, and so this condition has been met.

Absent such a provision, the case would probably be decided differently. According to art. 1755 of the Civil Code,17 the agent is entitled to a commission only if the deal is concluded as a result of his intervention. Doctrinally, the right to receive the commission arises as soon as the economic interest of the parties is safeguarded.18

As in all contractual relationships, the parties must behave in accordance with the general principle of good faith (arts. 1175 and 1375 of the Civil Code). Claude has no duty to sell his house if he changes his mind, even if he listed it with Homes, but he is certainly obligated to disclose his intentions as soon as possible so as to avoid useless efforts of the real estate agent.19

Real estate agencies in Italy generally insist that they have the exclusive right to list a house.

austria

Claude can cancel the contract without having to pay any money to Homes. The contract with a real estate agent is regulated by the ‘Makler-

15See G. Giordano, D. Iannelli, and Santoro, ‘Il contratto di agenzia. La mediazione’, Giur. sist. civ. e comm. I (1974), 133; G. Di Chio, ‘La mediazione’, in G. Cottino, Contratti commerciali, Trattato di diritto commerciale e di diritto pubblico dell’economia diretto da Galgano

16 (1991), 619 ff.

16Article 1756 of the Civil Code: ‘Expenses: Subject to agreement or usage to the contrary, the broker is entitled to reimbursement of his expenses from the person on whose behalf they were incurred, even if the transaction is not concluded.’

17Article 1755 of the Civil Code: ‘Commission: The broker is entitled to a commission from each of the parties if the transaction is concluded as a result of his intervention. In the absence of agreement, fee schedule, or usage, the amount of such commission and the proportion in which it is chargeable to each of the parties are determined by the court on an equitable basis.’

18See Di Chio, ‘La mediazione’, 624; C. Varelli, La mediazione (1953), 78; U. Azzolina, ‘La mediazione’, in Vassalli, Tratt. di dir. civ. 8:2 (1943), 133; M. Stolfi, ‘La mediazione’, in

Commentario a cura di Scialoja e Branca (1976), 27 ff.

19See Giordano, Iannelli, and Santoro, ‘Il contratto di agenzia’, 510.

Gesetz’ (Act on Brokers, BGBl 1996/262). According to § 6 of this Act, the real estate agent is entitled to claim his brokerage fee only if a contract for the sale of the land is concluded. The seller, who has the contract with the agent, is under no obligation to conclude the contract with the persons found by the agent who are interested in buying the house.20 This rule is obligatory and cannot be changed by the parties in their contract.21 If no contract is concluded, the agent cannot claim compensation for his expenses.22 If the contract with the agent is not made for a certain period of time, both parties can cancel it at any time.

If Claude promised to list the house only with Homes, the contract would constitute an Alleinvermittlungsauftrag. In such a case it is possible23 for the parties to agree that the customer must pay the agent’s fee if he cancels the contract and does not have an important reason for the cancellation, provided the contract with the agent was concluded for a certain period of time.

germany

Section 652(1)(1) of the Civil Code provides that an agency like Homes can claim the agreed percentage of the sales price only if someone really agrees to buy the house, and this agreement was brought about by the actions of the agency. It is not enough if the agency finds somebody who is willing to buy. That is so even if the contract is exclusive or the agency has incurred expenses. There is no obligation on Claude to sell his house. He is absolutely free to make that decision without regard for Homes’ interests. The only limitation on Claude’s freedom to decide is, as usual, that he must act in good faith.24

The result would be different only if the contract included an express provision that money would be due if Homes finds a buyer. But when the sum due is 5 per cent of the sales price, and it is due without the completion of the sale, the promise to sell real estate would require compliance with the formalities of § 313 of the Civil Code. The reason is that it creates an economic pressure to sell real estate. That was the conclusion of the highest German court (Bundesgerichtshof) when a client of a real

22This is justified by the fact that the real estate agent – unless otherwise agreed – is under no obligation to try to find a buyer for the house (see § 4 I MaklerG). It is, however,

possible for the parties to make an agreement according to which expenses which exceed the costs for the normal business activity of the broker have to be reimbursed by the customer (see § 9 MaklerG). 23 See § 15 II N 1 MaklerG.

24 BGH NJW 1975, 647 (648).