A few weeks ago, we published an article on the duty to provide information when buying a property used (https://jasper-law.com/blog/aufklaerungspflichten-beim-kauf-gebrauchter-immobilien). Today, we would also like to look at the question of whether the seller is also liable if the estate agent commissioned by him provides the buyer with incorrect information or no information at all about the property, although this was necessary and known to the estate agent.
Properties used are usually sold with a waiver of any warranty rights. Honest sellers name the issues for which they must provide clarification. The sellers usually discuss this with the estate agent they have appointed. The agent often carries out viewings of the property without the seller being present. Some estate agents do not take the clarification of facts very seriously, even though the seller has pointed this out to them. An important fact is either concealed from the buyer or misrepresented. The buyer now wants to take action against the seller for breach of a duty of disclosure and argues - and can prove - that the estate agent did not provide proper information. The seller argues that he was not present at the sales talks. He is not liable for the statements made by the estate agent. This is because the seller demonstrably informed the estate agent in full about all matters relevant to the contract.
The seller only has to accept responsibility for declarations made by the estate agent commissioned by him as his own within the meaning of Section 123 (1) BGB (Section 278 BGB) if certain conditions are met (according to OLG Schleswig, judgement of 14 February 2008, 7 U 24/06): According to established case law of the Federal Court of Justice (BGH NJW 1995, p. 2550 ff; NJW 1996, p. 452; NJW 2001, p. 358 f.), a estate agent is regarded as a vicarious agent within the meaning of Section 278 BGB (with the consequence of attribution of a declaration) if the estate agent has
- the estate agent has been entrusted with the essential contractual negotiations by one of the parties, or
- the estate agent has assumed tasks with the knowledge and will of a party that are typically the responsibility of that party, or
- the estate agent has been entrusted with the entire contract negotiations in a quasi-representative capacity.
According to the Higher Regional Court of Schleswig, the decisive factor is not the granting of power of representation, but whether the behaviour of the estate agent can be attributed to the principal when assessing the actual circumstances (BGH NJW 1995, p. 2551 with further references). The estate agent must have taken on tasks - attributable to the contracting party - which are attributable to the duties of this party (BGH NJW 1996, p. 452). The circumstances of the individual case are decisive here: the question arises as to whether an intermediary has assumed, with the knowledge and intent of one of the subsequent contracting parties, tasks that are typically incumbent upon it (for example, increased duties of disclosure) and has thus become active in its sphere of duties and at the same time is to be regarded as its auxiliary person (BGH NJW 2001, p. 358).
In practice, this means that an estate agent who only fulfils his mandate to broker the property does not automatically trigger liability on the part of the seller with his statements. Only if the estate agent has a quasi "free hand" in the negotiations with the buyer will the estate agent qualify as a vicarious agent (§ 278 BGB) of the seller. The estate agent's statements will then be attributed to the seller. The seller may therefore find himself in a situation in which the estate agent's omitted or false declarations on matters requiring clarification are rightly held against the seller as fraudulent misrepresentation. The buyer can then contest his declarations on the conclusion of the purchase contract (§ 123 Para. 1 BGB) and demand compensation from the seller (§§ 311, 249 ff. BGB).
Sellers are therefore well advised to precisely define their legal relationship with the estate agent to avoid any surprises in the legal relationship with the buyer.
Düsseldorf, 03 July 2024
Dieter Jasper
Lawyer