Broker commission for pre-emption rights

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The content of the contract does not change through the exercise of a right of first refusal.

By exercising a right of first refusal (see my post of yesterday for tenant right of first refusal), an independent purchase contract is newly established between the party entitled to pre-emption and the obligated party (seller) under the same conditions as it was concluded between the obligated party and the third party (first buyer). According to this, the person entitled to preemption not only has to pay the purchase price, but also to provide all those services that would have been incumbent on the first buyer according to the purchase contract (BGH V ZR 62/59 and VIII ZR 236/61).

This suggests that in cases in which the exercise of a right of first refusal is possible and in which a broker is involved, a real broker clause should be included in the notarial purchase contract, according to which the buyer makes an independent promise to pay the broker in the amount of his commission. If the preemptor enters into this agreement, he is bound by it.

Broker clause as a foreign body?

However, there are exceptions to the above principle. After § 464 para. 2 BGB only "the purchase" comes about between the entitled person and the obligated person, so that the person entitled to pre-emption is not bound by such provisions of the first contract that do not inherently belong to the purchase contract and are identified therein as foreign body represent (BGH III ZR 34/95). Such agreements are not transferred, only agreements that are an essential part of the purchase.

This raises the question of what a foreign body is in this sense.

Brokerage costs in the usual framework are not a foreign body.

According to the BGH, provisions in the purchase contract for the distribution of the Brokerage costs that are within the usual range, usually not a "foreign body", but instead are actually part of the purchase contract. The question of which of the contracting parties ultimately has to bear what proportion of such brokerage costs incurred for the conclusion of the purchase contract is generally just as closely related to the regulation of the amount of the purchase price as the question of who has to pay for those contract costs internally which the contracting parties are jointly liable to the outside world (e.g. certification costs). In both cases, for economic (e.g. tax) considerations, the complete or predominant assignment to one or the other side of the contract within the framework of the overall regulation can be offered without the total effort that the buyer has to make for the purchase changing significantly; the higher the share that the buyer takes on, the lower the actual purchase price is generally calculated and vice versa.

Whether the ideas about the distribution of brokerage costs from such points of view have already been reflected in the brokerage contract between the owner and the broker and accordingly also in the subsequent brokerage contract between the broker and the prospective buyer (and thus have been adopted in the purchase contract) or whether the final " The fact that the contract package” is laid down for the first time in the notarial purchase contract cannot regularly make any difference in the assessment that the buyer’s obligation to pay brokerage costs in the form of a “brokerage clause” is inherently part of the purchase contract. In principle, it is also not decisive whether the buyer in the purchase contract accepts a commission originally only promised by the seller to the broker or whether in the purchase contract document with regard to the buyer's commission only an obligation previously entered into by the buyer towards the broker is taken up and supported by a special, binding arrangement for those entitled to pre-emption has also been confirmed. Also with a view to the interest of the person entitled to pre-emption, which is worthy of protection, to receive the object of purchase under the same conditions that the seller has negotiated with any third party when exercising the right of pre-emption, i.e. not to be in a worse position than the first buyer, there is no reason for the BGH for a differentiation (BGH III ZR 34/95).

Brokerage costs that are higher than the usual framework are a foreign body.

These principles find their limit where the usual framework is left. in his decision BGH I ZR 5/15 the BGH explained that an unusually high commission is not to be paid at a reduced rate by the person entitled to pre-emption, but not at all. A reduction of the excessive broker commission to a usual amount in accordance with the Civil Code § 655 is not considered. According to this provision, the brokerage fee agreed to prove the opportunity to conclude or to broker a service contract, which proves to be disproportionately high in individual cases, can be reduced to the appropriate amount by judgment at the request of the debtor. This regulation was deliberately limited by the legislature to the area of ​​application "brokerage contract for the brokerage of service contracts", so it does not apply to the brokerage of real estate.

A reduction of the agreed broker's commission to a normal amount according to the principles that apply in the event of a violation of a price prohibition law is also ruled out. According to the case law of the Federal Court of Justice, a breach of price regulations has Civil Code § 134 the nullity of the fee regulation in general only to the extent that the permissible price is exceeded; otherwise the permissible price remains due. This is justified with the exemption in § 134 half-sentence 2 BGB, according to which the legal transaction is only (entirely) void if the law does not state otherwise. The price regulations are only intended to protect against the agreement of excessive remuneration. You should not turn the protection into its opposite by voiding the entire contract. The present case is not comparable with this, because an unusually high brokerage commission is not part of the purchase contract, a reduction to a normal amount is not required to protect the person entitled to pre-emption and the entire nullity of the transaction is not in question.

What is "usual"?

This is sometimes disputed in court. There are cases where the agreed commission is clearly outside the range where commissions are normally paid. But there are also cases where this is disputed, for example in the case of a commission agreement of 7,14% for a 20 million property. Isn't it more common here that the commission rate is lower? This may vary over time and may also differ locally. Therefore, court - in the payment process of the broker against the person entitled to pre-emption - about this possibly. to obtain an expert opinion. One can also argue about the question of who is suitable as an expert for this purpose.

In order for it to get that far, one has to be durable agreement in the notarial purchase contract be provided. Otherwise there is no commission agreement and no promise to pay that can be passed on to the previous buyer.