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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