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The term of the broker (in former times ) designates the mediator of an opportunity in Germany to the conclusion of contracts. The legal example of this occupation comes in the German civil law in the regulations over the brokerage contract ("§"§ 652 FF. BGB) and/or over the commercial broker ("§"§ 93 FF. HGB) to the expression. With the brokerage contract it concerns according to dominant opinion no mutual contract, because none are to each other to be stated standing third-party liabilities in the Synallagma. Admits is above all to faults of properties or renting conditions, as well as of securities and Bekannschaften with marriage intention. In principle each broker requires a special permission after "§ 34 C GewO (trade and industrial regulations) the legal bases to execution the occupation is regulated in the MaBV. (Broker and builder regulation).
The third-party liability of the brokerage contract is the obligation of the client for the payment of the broker wages in case of success. An obligation of the broker for or the order giver for the perception of the proven conclusion possibility does not exist. Since the legal rules can be amended over the brokerage contract in the context of the freedom of contract of the parties and numerous special regulations in special laws to exist, has itself in the law practice a large number of special cases developed. However the Handelsvetreter must protect the interests of both parties and is responsible for damage resulted from its being to blame for (duty to exercise diligence "§ 98 HGB). It must immediately set after conclusion of the business of each party one of him provided contract note, which contains the substantial parts of contract (recording "§ 94, 100 HGB). Only if one portion is mentioned in the contract note, then it possibly must occur the contract (self entrance "§ 95 HGB).
Commercial brokers are mediators. They act in the strange name and on strange calculation. After "§"§ the 93-104 HGB they concern with the switching of contracts over the acquisition or sale of articles, those in the context of the trade and with it the markets a role play themselves (goods, securities, insurance, carriage of goods, ship rent). The subject of a commercial broker contract also immovable things can be, only the regulations of the HGB do not apply (e.g. no contract execution, no broker wage rules after HGB).
A special case is an insurance broker. Contrary to the independent mediator the insurance broker exclusively stands not between the parties but on sides of the customer, whom he represents. Alone the insurer owes the broker wages. This developed as customary law, because traffic assumed due to official control of the legal transactions of the insurers already very early it acted with this broker activity around a contract execution alone for the insurer, who excluded broker wages debited to the insurant.
The regulations "§"§ of the 652-656 BGB (civil law book) concern the civil broker. This is concerned with contracts, their regulations is settled in the BGB (leases, sales contracts over properties, loan agreements). Civil brokers can acquire - contrary to the commercial broker - already a requirement for commission if due to your proof of an opportunity to a conclusion of a contract a contract comes.
Foredecks after "§"§ 29 the FF. regulate the interests of the stockbrokers. They are officially ordered and swore in commercial brokers, who participate in the official statement of stock exchange courses. They must receive certified dealer of orders, in whose official course statement they have to participate of each to the participation in stock exchange traffic. Stockbrokers are subject to a strong restriction in the reference to self-business. They are ordered by the supervision by the stock exchange committee authority on suggestion of the stock exchange executive committee.
The Nachweismakler carries the proof out of the opportunity for the conclusion of a contract. It is not responsible for the quality of an achievement, but only for the possibility of locking over these a contract. The client assigns the broker the designation of a prospective customer, forbids to him however to associate with this.
A bare Nachweismakler requires regularly no special special customer. The Nachweismakler must designate in principle a concrete contract possibility. If the broker sends for example a list with 500 prospective customers to the client, then no requirement for commission develops, since the bare transmission of a prospective customer list with the determination possibility of the prospective customers does not represent a proof. The reference to a possible contract object alone is not thus sufficient for itself.
Contrary to the Nachweismakler the switching broker has to make it for the prospective customer possible to enter easily concrete treaty negotiations with third and influence on the will of the contracting party to the contract conclusion. It must lead thus so far a not conclusion-ready prospective customer conclusion ready.
Rightfully for both parties, and must its activity with consideration of the interests of both Contracting Parties is legally to the neutrality obligated active brokers exercise. The broker can be sued thereby if he conceals for example well-known lack. Likewise it has to examine the soil quality of the prospective customer for example contrary to the salesman. The broker negotiates with both Contracting Parties around the business to lock. Traffic-usually the switching broker is regarded as a salesman with special obligations. Examples are real estate agents, enterprise brokers and marriage brokers.
The fee of the broker is called commission or also brokerage fee. Them amount to with real estate sales frequently 5 6% of the purchase price plus value added tax undist with letting legally on 2 monthly cold rents limited.
The broker's commission becomes due at the time of conclusion of sale or a lease (contingent fee), so that each payment in advance of a broker takes place on own risk. Depending on whether an exclusive contract or an open contract is agreed upon, with which the prospective customer and/or offerer may become active without the broker also, rises and falls the interest of the broker to engage itself.
A prospective customer or an owner can require the costs of a real estate offer also directly of the partner, if he uses no broker and indirectly over the price or the rent computes his advertisement ion and time costs the buyer and/or the tenant. Prospective customers, who want to make their costs valid, implement here e.g. rent free months or free additional service for itself.
The height of the broker commission depends on the market situation. The salesman is interested in as high a selling price as possible, the buyer at as low a Kaufpreis.Die as possible difference is the costs of the switching.
If the expenditure for the switching is small because of a high offer and a high demand, no broker is taken up.
If the expenditure for the salesman is high because of a small demand, the salesman will take a broker up. If the expenditure for the buyer is high because of a small offer, the buyer will take a broker up.
Not after the market situation the allocation of the commission between buyers and salesmen arranges itself, because this allocation is purely arbitrary.
If a salesman offers a real estate over a broker, then this requires frequently a customer commission, which is felt of many customers as unfair. This paradox that a salesman buyer commission requires, proceeds from the conception that the customer could save the broker commission, if the broker were not involved in the business.
This is however wrong. The salesman would have to carry the switching costs (completely equal whether it searches independently buyer or with the help of a broker) it the purchase price accordingly more highly would set.
A buyer commission is of advantage actual even slight for the buyer, because thus the switching costs from the purchase price remain out and not with further costs are considered, which refer to the purchase price, for instance the notary costs or the tax on real estate transactions.
Also with the letting a tenant commission can quite bring advantages to a tenant, because only this commission does not fall under the legal restriction of 2 monthly rent-pays the tenant the commission directly, must the landlord the switching costs on the rent strike.
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