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Case Details

Case Details
National ID link
Member State Belgium
Common Name Immostad b.v.b.a. / Van Ammel G.
Decision type Other
Decision date 08/10/2003
Court Hof van Beroep (NL)/Cour d'appel (FR) (Appellate court, Gent)
Subject
Plaintiff
Defendant
Keywords

Unfair Contract Terms Directive, Article 1, 1. Unfair Contract Terms Directive, ANNEX I, 1.

1. A contractual clause which states that a consumer is under the obligation to pay the real estate agent’s commission fee when he does not respect the agent’s exclusive mandate to find a buyer, is not an infringement of Article 32, No 15 of the TPA, which forbids unilateral sanctions for the consumer in the event he does not respect his side of the contract, without foreseeing a similar sanction for the seller. The potential damage for the consumer in the event the seller fails to perform cannot be determined in advance. It therefore suffices that the consumer has the possibility in those circumstances to claim damages in accordance with general contract law. Furthermore, the fact that the seller does not receive a commission fee when he does not find a purchaser can be considered as an equivalent, albeit implicit, sanction for the seller who does not perform his side of the contract.
2. The contractual clause which states that a consumer is under the obligation to pay the real estate agent’s commission fee when he does not respect the agent’s exclusive assignment to find a buyer, is not in conformity with article 32, No 21 TPA, which forbids the imposition of sanctions which are clearly disproportionate to the seller’s, in this case, the real estate agent’s, disadvantage resulting from the consumer’s improper performance of the contract.
G. Van Ammel signed a contract with the real estate agent Immostad, providing the agent with the exclusive assignment to sell his house. The contract states that the commission fee for the real estate agent is 4% of the selling price. If the consumer breaches the contract by making another person responsible for selling the house or by terminating the contract prematurely, the consumer is required to pay 4% of the proposed selling price, which amounts in the present case to EUR 10.907,32.
The consumer breached the contract by making another person responsible for selling the house during the real estate agent’s exclusive assignment.
According to Article 32 No 15 TPA, a contract clause which imposes a sanction on the consumer who does not perform his side of the contract, must also contain a similar sanction for the seller who does not respect the contract.
In the case of an exclusive assignment to a real estate agent to sell the house, the determination of the potential damage to the consumer in case the real estate agent fails to perform the contract is impossible. The fact that the consumer in this case is enabled to claim damages in accordance with general contract law is in conformity with the law. Furthermore, the fact that the seller does not receive a commission fee either when he does not find a seller within the time frame set out in the contract, is to be considered as an equivalent, albeit implicit, sanction for the seller who does not perform his side of the contract.
The amount of damages, agreed upon in the contract, which the consumer has to pay when he does not perform his side of the contract, may not be unreasonably disproportionate to the possible disadvantage of the seller. Since the highest possible disadvantage for the seller is 4% of the proposed selling price, damages equal to the highest possible commission fee are not disproportionate. Consequently the contractual clause specifying this amount of damages does not infringe Article 32 No 21 TPA.
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