Case 15: promises of commissions

320 the enforceabilit y of promises

upon in writing or it is entitled to nothing. The commission is paid for achieving the desired result and not for the time and expenses incurred by the agent.

Nevertheless, the case law does not seem to accept this conclusion. It has admitted that the seller ‘may have perfectly legitimate reasons for not selling despite the agency given’,2 and that ‘not completing the principal act may be due to purely personal reasons of convenience’.3 As a result, the agent would not be able to earn anything. Moreover, the real estate agent only has an obligation to use his best endeavours (obligation de moyen) since this type of agency is only one of ‘involvement consisting in looking for clients and negotiating just one of these transactions’.4 Remuneration would be due only if Homes could prove that the sale has been effectively concluded.5

Nevertheless, it would still be possible for him to bring an action in tort for the loss caused by withdrawing the agency on the grounds that by doing so, Claude has committed a fault under art. 1382 of the Civil Code. As a general rule, damages are awarded in full to place the plaintiff where he would have been if no harm had been suffered.

Finally, we will consider whether it matters whether the contract was one for an exclusive agency to sell the house. If it is an exclusive agency, then, according to art. 6, final paragraph of the law and art. 78 of the decree, the agent’s right to remuneration is considerably reinforced. He has the right to be paid even if he achieves the result in question with the help of a third party, which is not the case here. Moreover, he is allowed to include a penalty clause which provides that the owner is liable to pay a specified amount of damages if a sale has not been concluded although the real estate agent has found a buyer who satisfies his principal’s requirements. Thus, if the contract was for an exclusive agency, Homes could have included such a clause, and if it had, Claude could be liable for the amount specified. In a sole agency a penalty clause may even take effect when a contract has been concluded without the real estate agent’s involvement, which is not the case here.6

Litigation over real estate agents’ remuneration is frequent. On average,

2 Report of the Cour de cassation for 1987.

3 Civ. 1, 15 Dec. 1987, Bull. civ. I, no. 271, p. 203.

4 Civ. 1, 8 July 1986, Rev. dr. immobilier 1986, 481. 5 Civ. 1, 7 June 1988, Bull. civ. I, no. 170, p. 119.

6If the agency is not exclusive, nevertheless, a provision may be included allowing the agent to earn a commission if the sale is effected without his intervention but with the buyer whom he found. This, again, is not the case here.

seven decisions per year are handed down by the First Civil Chamber of the Cour de cassation. Scholarly writing is also voluminous,7 and the case law is complex.

What is surprising is the rule that the remuneration is not linked to the agent’s services but solely to the result achieved. It is sometimes criticized because it derogates from general rules of law (droit commun) which require that a service actually rendered should be duly paid for. It is justified, however, by the need to protect clients from abuses that agents might otherwise commit. There is another way as well in which the rules that govern agency contracts seem to derogate from general principles. It is one of the rare instances in which French judges have asserted the power to reduce the remuneration stipulated for if they consider that it is excessive in relation to the services rendered. Traditionally, a contract of agency was deemed by French law to be a gratuitous contract, and so it is subject to strict control whenever it is entered into for compensation.

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The agreement in this case is a brokerage contract (contrat de courtage). It is not a contract of agency (mandat) because the role of Homes is limited to mediating between the parties. It does not represent the seller. The contract belongs to the category of louage d’ouvrage, literally, the hiring of labour.8 Here, as in Case 14, art. 1794 of the Civil Code allows Claude to terminate the contract unilaterally provided it is a contract with no set term (contrat à durée indéterminée).9 If he does, Homes is entitled to compensation,10 although, because its mission was unsuccessful, the 5 per cent commission on the price of the house need not be paid. Nevertheless, if the failure of the mission were attributable to Claude, the broker could seek the rescission of the contract (action en résolution du contrat) with damages for the failure of the principal to perform his contractual obligations (art.

7See, e.g., D. Tomasin, ‘La rémunération des agents immobiliers’, Rev. dr. immobilier, 1989, 125 f.; J.-L. Bergel, ‘Observations sur le droit à rémunération de l’agent immobilier’, JCP 1989, 73 f.; F. Dagot, ‘La commission de l’agent immobilier’, JCP 1986,

255 f.; S. Sanz, ‘Le droit à commission de l’agent immobilier’, RTDCiv. 1981, 507.

8 See P. A. Foriers, ‘Le droit commun des intermédiaires commerciaux’, in L. Simont, P. Foriers, I. Verougstraete, and B. Glansdorff, Les intermédiaires commerciaux (1990), nos. 95 f. 9 See, on this point, ibid., no. 117.

10See Répertoire pratique du droit belge, ‘Courtier’, no. 124 (expenses incurred must have been necessary or useful).