If the broker demands commission from his customer for a property which he has proven and which has been purchased by his customer, it is not uncommon for the objection to be raised that the broker did not deserve his commission because the customer was already previously aware of the opportunity to purchase the property. A recent decision of the OLG Frankfurt (judgment of 06.07.2022 - 13 U 84/21) considers the objection of prior knowledge irrelevant if this was not communicated to the broker in time.
The (proof) broker has earned the commission only if the purchase agreement has come into being as a result of his proof (§ 652 BGB). This is not the case if the broker client was already aware of the opportunity to conclude the purchase contract beforehand. With regard to the amount of the broker's commission, customers have a considerable incentive to avoid paying the commission. Therefore, it is not uncommon to hear the objection that the customer was already aware of the property in question. So also in the case decided by the OLG Frankfurt, in which the customer let send itself then however a Exposé and also around a inspection date after-asked, which it rejected then however.
According to the decision (and an earlier decision of the OLG Koblenz NJW-RR 1989, 1210 m.w.N.) the broker customer cannot refer to the previous knowledge, if he did not communicate it to the broker in time. Thus, he should have informed the broker that he was already aware of the property at the latest at the moment he had knowledge of the property and before he made use of further brokerage services, such as requesting an exposé or arranging a viewing appointment.
It is recommended that brokers refer to this decision in their cover letters with which they inform the customer of the property data. The inclusion of a corresponding prior knowledge clause in the general terms and conditions (e.g.: If you are already aware of this offer, we request that you notify us in writing, naming the offerer, within five days of receipt of the offer. If we do not receive any response, our proof is accepted as initial proof by the recipient.) is namely inadmissible according to a decision of the Regional Court of Berlin (judgment of 02.05.2019 - 52 O3 104/18), as this puts the broker customer at an inadmissible disadvantage. Indeed, contrary to the Higher Regional Court of Frankfurt, which unfortunately did not deal with this decision, the Regional Court of Berlin took the view that the client was not obliged to disclose his prior knowledge to the broker according to the statutory guiding principle of brokerage law.
For questions on this topic, please contact Dr. Probandt.
