Mr. Wang is a staff member of a housing agency company in Yantai, Shandong. At the end of 2020, he received a client. He found a house according to the client's requirements, and the client expressed satisfaction. Seeing that the transaction was about to be concluded, suddenly It ran aground, and a lawsuit followed.
After providing real estate agency services, the transaction has changed
Mr. Wang said that the two parties signed the "Purchase Entrustment Agreement", and then, according to the requirements of Ms. Zhang, he searched for suitable houses nearby.
Ms. Zhang took a fancy to a house he recommended. Regardless of the type of house, lighting, location, etc., Ms. Zhang was very satisfied, and she was just about to pay for the transaction.
Real estate agent Mr. Wang: She showed dissatisfaction in the follow-up and said she would not buy this set.
However, when Mr Wang later introduced the house to other clients, he suddenly discovered that the house had been sold.
Real estate agent Mr. Wang: The owner told us that the house had been sold, and I suspected that the customer might skip the order, so we contacted the client, Ms. Zhang. At first, Ms. Zhang refused to admit it, but she admitted it later. This house was bought by her and it is under the name of her son.
Mr. Wang explained that what he meant by "jumping the order" was "jumping the intermediary", that is to say, he provided Ms. Zhang with intermediary services, but after Ms. Zhang accepted the service, she bypassed him and reached a transaction with the seller.
Mr. Wang believed that he provided intermediary services, and the house was finally sold. Ms. Zhang should pay him the intermediary fee according to the purchase agreement. However, Ms. Zhang did not agree with this matter.
Therefore, Mr. Wang filed a complaint against Ms. Zhang to the People's Court of Penglai District, Yantai City.
Require the client to pay commission and liquidated damages The judge investigates the case
In the complaint, Mr. Wang proposed to ask Ms. Zhang to pay a commission of 15,000 yuan for the intermediary service for house purchases, and to bear the liquidated damages.
So how will the court decide?
Mr. Wang showed the court the "House Purchase Entrustment Agreement" signed by him and Ms. Zhang, which stated: After Party B provides the house, after the house inspection, Party A and Party A's relatives and friends buy the house, and Party A must pay for Party B's services. Commission.
Mr. Wang, a real estate agent: We have provided some evidence materials, including the signing of the entrustment agreement, the records, and the videos, including a series of evidence of our service communication, including its transaction records, we have provided .
So, does Ms. Zhang approve of this?
The court questioned Ms. Zhang in this regard.
Wang Lina, Judge of the People's Court of Penglai District, Yantai City, Shandong Province: We called Ms. Zhang, and Ms. Zhang was definitely reluctant to take this share of money.
Subsequently, Mr. Wang showed the court a transcript of his phone call with Ms. Zhang. He believed that this conversation could prove that Ms. Zhang admitted to buying the house.
At the same time, the judge also contacted the seller of the house. The seller told the judge that the house was indeed sold to Ms. Zhang, and Ms. Zhang participated in the whole process of payment and transfer.
After these investigations, the judge basically confirmed the facts of the case.
Wang Lina, Judge of the People's Court of Penglai District, Yantai City, Shandong Province: We comprehensively used the provisions of the Civil Code on skipping orders to analyze the case and clearly inform Ms. Zhang that the house purchase entrustment agreement signed with the intermediary company is true and valid. The true intention of both parties is that it does not violate the provisions of laws and regulations, is legal and valid, and both parties should perform their respective rights and obligations in accordance with the agreement.
After questioning, both parties expressed their willingness to accept mediation, but Ms. Zhang had objections to the amount proposed by Mr. Wang.
Li Ning, Assistant Judge of the People's Court of Penglai District, Yantai City, Shandong Province: The final transaction amount between the house buyer and the seller is 1.5 million. According to the purchase agreement they signed before, the buyer should pay 1%, which is 15,000 yuan. brokerage fee.
Wang Lina, Judge of the People's Court of Penglai District, Yantai City, Shandong Province: Ms. Zhang could not accept it. She believed that the intermediary company did not participate in the operation of some specific transactions in the future, and did not want to pay so much intermediary fees, and then she offered to give 10,000 yuan.
After communication, the two parties finally reached a mediation agreement. Ms. Zhang paid the intermediary Mr. Wang a remuneration of 10,000 yuan in court, and the two parties had no other disputes.
What are the elements for determining the breach of contract by "jump order"?
In this case, Ms. Zhang finally needed to pay the intermediary remuneration, but she did not pay the full amount. If such a case did not reach a settlement, how would the court decide?
Will the judgment be made to pay the brokerage fee in full or in part?
In addition, in such intermediary house purchase disputes, how to determine the buyer or seller "jumped the order"?
The Civil Code raised the prohibition of "jumping orders" to the legal level for the first time
According to experts, the behavior of "jumping orders" is a particularly common type of dispute in the field of intermediary contract disputes. Our country's laws have not clearly stipulated this before. The "Civil Code" officially implemented on January 1, 2021 is based on the response to practical needs. Special provisions have been added.
Article 965 of the "Civil Code" clearly stipulates that: after accepting the services of the intermediary, the principal uses the trading opportunities or intermediary services provided by the intermediary to directly conclude a contract without the intermediary, and shall report to the intermediary. Pay the remuneration.
According to experts, according to this provision, the client bypasses the intermediary and directly signs a contract with a third party, which needs to meet three conditions at the same time, and the intermediary has the right to require the client to pay remuneration.
The first condition here is that the intermediary contract has come into effect, and the intermediary has provided services to the principal as agreed.
It is not possible to judge whether there is a contractual relationship based on the contract name alone
According to experts, in judicial practice, the names of the contracts signed by the principal and the intermediary are different, including intermediary contracts, intermediary contracts, housing sales service contracts, and housing inspection confirmations or inspection agreements. If the content of the contract is essentially that the intermediary provides the client with the opportunity to conclude a contract and media services, it should be determined that there is an intermediary contract between the two parties.
Moreover, after the contract takes effect, the intermediary needs to actually perform the obligations of reporting contract opportunities and providing intermediary services to the client as agreed: such as providing housing information to the client, introducing the client to meet the owner of the house, showing the house, assisting The two parties negotiate, etc., and the client accepts the services provided by the intermediary, which is the source of the intermediary's right to obtain remuneration.
According to experts, after the two parties signed an intermediary contract, the intermediary did not actually provide intermediary services, and the client skipped the intermediary and directly traded with a third party, and the intermediary had no right to ask the client to pay remuneration.
However, if the two parties have not signed a contract, but the intermediary provides intermediary services, can the intermediary claim its rights?
Shi Jiayou, executive director of the Civil and Commercial Legal Science Research Center, a professor at the Law School of Renmin University of China: The oral form is very troublesome.
If the intermediary can prove the establishment of such an oral contract, the court can also support his reasonable request, such as the presence of third-party witnesses.
For example, if the client and the intermediary contact through WeChat, these evidences can prove that such an intermediary contract has been established, and both parties have a clear intention that the client entrusts the intermediary to find the client.
For such a situation where the agreement is not clear, how should the remuneration be determined?
The second paragraph of Article 511 of the Civil Code stipulates that if the price or remuneration is not clear, it shall be performed according to the market price at the place where the contract is performed at the time of conclusion of the contract; if the government-fixed price or the government-guided price should be implemented according to law, it shall be performed in accordance with the regulations.
Article 963 stipulates that if there is no agreement on the remuneration of the intermediary or the agreement is not clear, and it cannot be determined according to the provisions of Article 510 of this Law, it shall be reasonably determined according to the labor services of the intermediary.
Shi Jiayou, executive director of the Civil and Commercial Legal Science Research Center, a professor at the Law School of Renmin University of China: We say that it can be determined based on trading habits and market conditions, and he can also claim this.
Expert Interpretation: How to Understand Trading Opportunities and Intermediary Services
According to experts, an important condition for intermediaries to have the right to demand remuneration from clients is to provide trading opportunities and intermediary services.
So how is this transaction opportunity and media service identified?
Experts explained that whether the client finally signs a contract with a third party and whether there is a causal relationship with the intermediary services provided by the intermediary is the key to determining that the client constitutes a "jump order" and should pay compensation to the intermediary.
In judicial practice, whether there is a causal relationship requires careful judgment in some special circumstances.
Scenario 1: "Skip order clause" for "guaranteing income under drought and flood"
Li Ning, Assistant Judge of the People's Court of Penglai District, Yantai City, Shandong Province: The skipping clause may also be obviously unfair. For example, some intermediary companies will stipulate in this entrustment agreement, that is, after our intermediary leads the buyer to see the house , If you buy this house privately or through other intermediaries, then you should also pay the corresponding intermediary fee.
According to the judge, this agreement seems to be nothing, but it is actually unreasonable.
Li Ning, Assistant Judge of the People's Court of Penglai District, Yantai City, Shandong Province: As long as you are here to see the house, I will guarantee the income, and you cannot buy it through others. In fact, he restricts consumption with his limited contribution. the right of choice.
Then we believe that this clause is unfair in this case, and the entrusting party, that is to say, the buyer can choose to revoke or change this clause.
Scenario 2: Duplication of Information Sources
If the principal himself inquires about the relevant housing information through various channels, the information provided by the intermediary and the information already inquired by the principal are duplicates.
So, how to deal with this situation?
Li Ning, Assistant Judge of the People's Court of Penglai District, Yantai City, Shandong Province: The law affirms your labor.
But on the other hand, in fact, it does not only protect the intermediary, it also protects the buyer, and it also protects the client's right. It does not mean that you simply think that you are not buying from this intermediary, but buying from another intermediary constitutes a Jump order.
According to the judge, in this case, it cannot be directly determined that there is a causal relationship between the service of the intermediary and the signing of the final contract. Of course, the client needs to provide evidence to prove that he has indeed inquired about the relevant information through other channels in advance.
Scenario 3: With multiple intermediaries, who should be paid?
If the same house listing information is listed for sale in multiple intermediaries, the client can learn about the house listing information through multiple intermediaries, and can also entrust multiple intermediaries at the same time.
At this time, it is necessary to judge which intermediary provided the service of the client to finally sign the contract, and if multiple intermediaries provide services, the client finally chooses one of them based on factors such as service satisfaction and intermediary remuneration. Although other intermediaries are bypassed, this is the freedom and right of the principal as a consumer.
Li Ning, Assistant Judge of the People's Court of Penglai District, Yantai City, Shandong Province: If you think that the service of the first intermediary is not in place, then you have the right to choose the second intermediary, and in this case, you can also urge the intermediary to improve the service quality. while regulating their behavior.
The intermediary industry may be mixed, and some people's service level and his professional level cannot meet your requirements, then you can choose other intermediaries by shopping around. In protecting your transaction and consumption options.
According to the judge, at this time, the client needs to provide evidence to prove that it finally concluded the contract and mainly used the services provided by which intermediary.
For example, if the principal can prove that the final purchase of the house is mainly based on the services provided by the company B, there is no need to pay the company A compensation.
However, if Company A can prove that the principal first obtained the listing information from Company A, and then told Company B the information, so as to “jump” to Company A and enter into a contract through Company B, Company A has the right to submit to Company B. The principal demands remuneration.
Regarding the amount of remuneration, it needs to be determined in consideration of the degree of performance of Company A's contractual obligations.
How to determine the intermediary remuneration referee method is more detailed
According to experts, the client bypasses the intermediary and directly concludes the contract, and the intermediary has the right to require the client to pay remuneration.
However, the amount of remuneration depends on different circumstances.
In judicial practice, there are more detailed adjudication methods.
Shi Jiayou, executive director of the Civil and Commercial Legal Science Research Center, a professor at the School of Law of Renmin University of China: One is based on transaction practices, and the other is based on such paradigm contracts formulated by relevant authorities.
For example, the housing construction department has also formulated some contracts for the sale of houses. In fact, we have some reasonable expectations in the industry for the providers of intermediary services in this paradigm contract.
When it comes to buying a house, what services do the intermediary need to provide to get the full amount of the intermediary fee?
According to the judge, at present, the judgment of the court will mainly refer to the relevant content on page 2726 of the "Contract Comprehension and Application of the Civil Code [4]", that is, the intermediary should provide useful housing information, show the buyer, and assist both parties. Negotiate prices, assist in loan processing, assist in property transfer, etc.
The intermediary has only fulfilled part of the contractual obligations, and if the client is required to pay all the agreed remuneration, it violates the principle of consistency of rights and obligations.
There are precedents in many courts in which "jumping orders" is not desirable
It is not advisable to "jump the order". The legal provisions in this regard are very clear. In judicial practice, there are also many such cases.
In January 2020, after learning about the housing situation and the owner Xie Mou through the real estate agency, Yi Mou in Chongqing bypassed the real estate agent and directly signed a house sale agreement with Xie Mou.
Among them, the buyer Yi Mou, the seller Xie Mou and the intermediary company jointly signed an intermediary contract, stipulating that the buyer and the seller should pay a service fee of 1.5% to the intermediary party after reaching a transaction.
However, Yi Mou privately reached a deal with Xie Mou and transferred the account.
The intermediary brought both the buyer and the seller to court at the same time.
After mediation, Yi and Xie paid 12,900 yuan and 10,000 yuan to the intermediary company respectively.
In July 2020, Liu in Guangzhou wanted to buy a house and found an intermediary company. After the intermediary company recommended a house worth 2.45 million yuan, Liu signed a "Letter of Intent to Buy a House" and agreed to pay 1.5% of the house transaction price. % as the intermediary fee, and proposed that if the intermediary company can negotiate the price of the house to 2.35 million yuan, it is willing to provide an additional 5,000 yuan as a benefit fee on the basis of the intermediary fee, and pay it first.
The intermediary company negotiated a lower price according to Liu's request, but Liu suddenly proposed not to buy it and asked the intermediary company to refund 5,000 yuan, and then Liu and the owner completed the transaction privately.
The intermediary company took Liu to court, and the court finally ruled that Liu should pay the entire 1.5% service fee of the intermediary company as agreed, totaling 35,250 yuan.
Shi Jiayou, Executive Director of the Civil and Commercial Legal Science Research Center, a professor at Renmin University of China Law School: From the subjective point of view of the parties, it is necessary to save costs as much as possible. The value of the house is relatively large, and the intermediary fee is tied to the house price, which is multiplied by percentage points on the basis of the house price. , in this case, the absolute amount of the calculated intermediary fee is also relatively high, so this is one of the main reasons for "jumping orders".
Experts believe that for most people, due to the complexity of housing transactions, there may be some transaction risks to bypass the intermediary directly.
Shi Jiayou, executive director of the Civil and Commercial Legal Science Research Center, a professor at Renmin University of China Law School: Housing sales are complicated to a certain extent. For example, the seller provides a fake property title certificate and a fake house book, and the seller is charging the down payment or even the full payment. Later, if he suddenly disappears or he refuses to cooperate with the transfer, then as an ordinary party at this time, if you do not have a certain ability to identify, it is very likely that you will be deceived.
At this time, it is a great threat to the interests of the buyer.
Experts suggest that if you think the intermediary fee is too high, you can fully negotiate in advance.
Shi Jiayou, executive director of the Civil and Commercial Legal Science Research Center, a professor at the School of Law, Renmin University of China: If you think that the intermediary fee is too high, you should fully negotiate at the stage of contract signing, and you cannot break the contract after the contract is signed. The behavior of breaking the contract is No, if there are different opinions on the terms of the contract, it should be fully negotiated at the contracting stage.
The transaction method continues to expand, and the self-service house selling transaction mode is launched
In fact, with the advancement of technology, new transaction methods are constantly expanding, and buyers and sellers have more choices. They can trade safely without choosing an intermediary.
A few days ago, the Shenzhen real estate information platform opened a second-hand housing self-service transaction service, and cited the "unilateral agency" model for the first time in China.
Through "I want to sell a house by myself", individual sellers complete property rights verification, contract terms, generation of contract model texts, buyer's house purchase qualification inspection, seller's electronic signature, contract filing, etc., and then complete the real estate transaction.
In addition to Shenzhen, many other cities have launched a self-service house sales transaction model.
Experts suggest that no matter what transaction method is adopted, integrity and compliance with the law are the basic rules of conduct for every citizen.