Judgment of the Court of Appeal in Kraków,
1st Civil Division,
of July 26, 2022,
file ref. act I AGa 88/21

Only the correct wording of the brokerage agreement ensures the exclusive remuneration of the agent, and failure to perform it by the seller of the real estate and the correctly made assignment entitles to claim contractual penalties. The seller of the property could effectively avoid the error as to the effects of concluding the brokerage agreement and its interpretation imposed by the agent.

• defective editing of the real estate brokerage agreement by the agent;
• no breach of exclusivity in the real estate sale brokerage agreement;
• no basis for charging a contractual penalty;
• assignment agreement;
• binding the court with the demand of the lawsuit;
• effective evasion of the error as to the effects of concluding the brokerage agreement;

It is impossible to determine when an agent may demand payment of a contractual penalty. If the agency is entitled to remuneration when it mediates sales (commission 3%) and when it does not mediate (commission 4%), then there can be no situation in which it should be said that the agency has been „omitted”, which would entitle it to charging a contractual penalty in accordance with the contract.

The provision of the contract prepared in this way by the agency is in fact impossible to apply (wrongly edited), since the agency is entitled to remuneration, both when it mediates in the sale (commission 3%) and when it does not mediate, which is due regardless of the share of other intermediaries in the sale) – (commission 4%).

Agreements previously concluded by the property owner did not conflict with the agency agreement – since the owner of the property at the time of concluding the agency agreement was bound by agreements with other agents, which, however, were not „exclusive” agreements, and the agreement with the agency did not contain any provisions regarding the owner’s obligation to terminate or termination of contracts concluded earlier with other intermediaries, and later the real estate owner did not conclude such contracts and was not obliged to terminate contracts with other intermediaries, but undertook only that during the period of exclusivity he would not commission (in the future) the performance of intermediation activities to another intermediary, then he cannot be effectively accused of infringing the principle of exclusivity by selling the property through another intermediary with whom he had previously concluded a brokerage agreement.

The claimant acquired a claim for a contractual penalty by way of an assignment agreement and pursued a lawsuit. Even if it was recognized that the intermediary / assignor is entitled to commission remuneration, the Court could not award it in this case, because the plaintiff did not make such a request, since the assignment agreement concerned only the contractual penalty and interest on this penalty and did not concern remuneration. The court is bound by the demand of the claim and may not adjudicate another claim (Article 321 of the Code of Civil Procedure).

The claim for a contractual penalty is not justified for two reasons:
▪firstly, the broker is entitled to a
commission fee under the contract for the sale of the property by the client himself, as provided for in the contract;
▪secondly – a contractual penalty in accordance with Art. 483 § 1 of the Civil Code is a substitute for compensation for damage resulting from non-performance or improper performance of an obligation, and the owner of the property was not prohibited from selling the property on his own or with the help of another intermediary, if he did not conclude an exclusive contract with him, but anyway should have paid a commission, and the claimant sought payment of contractual penalties, not a commission.

There are grounds to assume that the owner of the property effectively evaded
his declaration of intent when he realized that the real estate agent had tried to impose his interpretation of the contract on him. If the real estate owner provided the agent with a list of agents, the conditions of cooperation with the agent were corrected, and the agent agreed for the agency to cooperate with other agents, there are grounds to assume that the seller was misled by the agent as to the effects of concluding the agency agreement. He could have easily spotted the error, since the seller corrected the contract with another broker, both in terms of the offer price and the agency’s commission.