Which brokers are entitled to commission?

Which brokers are entitled to commission?

I've just sold my house after going through several estate agents and two brokers are asking me for commission for their work. One actually introduced me to the buyer, while the other claims to have spent two whole months trying to sell my property without any of his clients making me an offer. What advice would you give me to avoid paying twice?

F. Vaud

Brokerage is a specific type of mandate governed by articles 412 to 418 of the Code of Obligations (CO), whereby the broker is commissioned, in return for a fee, either to indicate to the other party the opportunity to enter into an agreement (known as indication brokerage), or to act as intermediary in the negotiation of a contract (known as negotiation brokerage).

The role of the introducing broker is to present a partner with whom the person who has hired him - i.e. the principal - can conclude a contract; the role of the negotiating broker is to conduct negotiations with the third party on behalf of the principal.

The broker is entitled to his salary as soon as the indication he has given or the negotiation he has conducted leads to the conclusion of the contract. The broker's salary is therefore of an uncertain nature. Unless the brokerage contract provides otherwise, the broker is only entitled to remuneration if the deal he has been asked to negotiate or indicate is actually concluded. No account is therefore taken of the efforts made or time spent, but only of the success of the broker's intervention. In other words, the conclusion of the main contract (in this case the sale of a property) must be a direct consequence of the broker's activity. It follows that it is up to the broker to prove that he or she had an influence on the process and that his or her intervention was successful.

If the success of the case is the result of the efforts of several brokers, each of them is entitled, according to the case law of the Swiss Federal Supreme Court, to demand payment from the principal of a share of the commission, in proportion to his contribution to the success of the case.

In your case, you should therefore only pay the commission to the broker who introduced you to the buyer of your property. Since, according to your explanations, the second broker did not contribute to the conclusion of the contract for the sale of your house, he is not entitled to remuneration solely on the basis of the time he spent trying to do as well as his colleague.