BGH has decided: The reservation fee in brokerage contracts is invalid! Broker must pay back reservation fee!
BGH, Judgment of April 20, 2023, Ref.: I ZR 113/22
The first senate of the Federal Court of Justice (BGH), which is responsible for brokerage law, has ruled that the obligation of a prospective buyer to pay a reservation fee in the event that the purchase does not take place, as stipulated in general terms and conditions, is invalid. This also applies if such a reservation was agreed later following the brokerage contract. Such reservation clauses disadvantage broker customers in the sense of § 307 Abs.1 sentence 1, Abs. 2 No. 1 BGB unreasonably and are therefore ineffective, if the reservation contract - as in the past usual - excludes a repayment of the reservation fee, grants no genuine advantages to the broker customer and the broker does not furnish thereby a monetary consideration. Thus, a reservation fee contradicts the legal guiding principle of the brokerage contract, according to which a commission is only owed if the brokerage activity leads to success.
To the press release of the Federal Court of Justice
It will be interesting to see how many broker customers will now claim repayment from their broker - before these claims become time-barred.
Jochen Mittenzwey
Attorney at law and specialist attorney for construction and architectural law / Partner
MO45LEGAL - Bschorr | Warneke | Sukowski GbR
Lawyers and Notaries
mittenzwey@mo45.de
