Facts:
Through the intermediation of a commercial real estate agent, the defendants ("potential buyers") inspected a property for sale. The plaintiff's managing director explained to the defendants that a brokerage contract was necessary, that the withdrawal period was 14 days and that a commission of 3% would be due in case of success.
No agreement was reached between the prospective buyers and the seller. The estate agent then concentrated on finding new prospective buyers and was slow in providing the prospective buyers with the information they had requested about the flat.
For this reason, the prospective buyers wrote to the real estate agent that they were terminating any further cooperation and no longer required any kind of information from the real agent.
Subsequently, another visit to the flat took place without the involvement of the real estate agent and a few weeks later the flat was purchased.
When the real estate agent became aware of the conclusion of the contract, she demanded payment of the commission of EUR 33,300.00 from the buyers. The withdrawal from the contract had been in abuse of rights. The buyers declared (after this letter of demand) that they were withdrawing from the contract in accordance with the Distance and Foreign Transactions Act (FAGG), because the real estate agent had failed to inform them of their right to withdraw from the contract in accordance with the FAGG.
Legal provisions:
Pursuant to section 4(1) FAGG, the entrepreneur is subject to a whole bundle of information obligations towards the consumer. For example, according to section 4(1)(8) FAGG, the trader must inform the consumer about the existence of a right of withdrawal and the procedure and deadline for exercising this right, as well as provide a mandatory withdrawal form.
In the case of contracts concluded outside the business premises of the seller, the information under section 4(1) FAGG must be provided to the consumer on paper or, with the consumer's consent, on another durable medium (e.g. by e-mail) (section 5(1) FAGG).
The consumer may withdraw from a contract concluded outside business premises within 14 days without reason (section 11(1) FAGG).
If the trader does not comply with his duty to inform according to section 4(1)(8) FAGG (information on the right of withdrawal), the withdrawal period is extended by 12 months(section 12(1) FAGG).
Comments of the Supreme Court:
A verbal contract concluded outside the estate agent's business premises was concluded between the estate agent and the prospective buyer as consumer. The FAGG is therefore applicable.
Since the real estate agent did not comply with her duty to provide information under section 4(1)(8) FAGG (the model withdrawal form was not provided), the withdrawal period under section 12 FAGG was extended.
Contrary to the legal opinion of the first and second court, the Supreme Court did not consider the buyer's withdrawal from the contract to be abusive. According to the Supreme Court, it cannot be assumed that the defendants' aim from the beginning was to purchase the flat without paying a broker's commission.
As a result, the buyers did not have to pay the real estate agent a commission and the service received from the real estate agent was therefore free of charge.
Remark:
In the appeal proceedings, the buyers raised the question whether the cancellation provided for in the FAGG can (at all) be an abuse of rights. Since the Supreme Court denied the existence of an abuse of rights in the specific case, it did not have to clarify this question.