Brokerage agreements in the digital environment: Federal Court of Justice specifies obligations for explicit commission confirmation

In its ruling of October 9, 2025, the Federal Court of Justice clarified the requirements for brokerage agreements with consumers that are concluded in electronic commerce and clarified that the so-called "button solution" can also be applied to brokerage agreements.

The decision has far-reaching consequences for real estate brokerage practice and the validity of brokerage agreements concluded in electronic commerce.

Facts

In the underlying case, the plaintiff, a real estate broker, offered a single-family home for sale via a web portal and used a standardized online tool via brokerage software to conclude the contract. The defendant contacted the plaintiff by telephone and requested further information about the object. He then received an automated email with a link to the object description and other documents. The link redirected the defendant to the plaintiff's website, where he confirmed the conclusion of the contract by clicking on the "Send" button, after which he gained access to the object description.

The defendant then viewed the property and signed a brokerage and referral confirmation from the plaintiff. After the notarized purchase agreement was concluded, the broker invoiced the defendant for the commission; the defendant refused to pay.

The Stuttgart Regional Court dismissed the broker's claim for payment. The Court of Appeal ruled against the defendant on appeal. The defendant's appeal was successful: the Federal Court of Justice overturned the appeal ruling and referred the case back to the Court of Appeal.

Decision

In its ruling of 9. October 2025 (BGH, judgment of 09.10.2025 – I ZR 159/24), the Federal Court of Justice first clarified that a brokerage agreement can oblige the consumer to pay within the meaning of Section 312j (3) sentence 1 of the German Civil Code (BGB), even if the commission is only payable upon conclusion of the main contract. This results in high transparency and confirmation requirements for brokers in their business dealings with consumers.

If, in the case of a brokerage agreement concluded in electronic business transactions, the broker does not design the consumer's declaration of acceptance as an express confirmation of the commission obligation ("order with obligation to pay") contrary to Section 312j (3) BGB, the brokerage agreement is not only provisionally but definitively invalid (Section 312j (4) BGB). The activation of standardized buttons such as "Send", "Continue", or comparable neutral labels is not sufficient for validity.

The Federal Court of Justice also clarifies that a contract that was initially concluded invalidly cannot be subsequently remedied by mere conclusive behavior – e. g., the consumer's request to organize a viewing appointment. A subsequent confirmation within the meaning of Section 141 (1) BGB can only re-establish the brokerage contract if it complies with the requirements of Section 312j (3) BGB. This requires an express confirmation of the commission obligation by the consumer, which is regularly lacking in the case of implied conduct.

In the opinion of the Federal Court of Justice, the standardized and automated email correspondence used in the specific case also does not fulfill the exception under Section 312j (5) BGB because there is no individually written communication between the parties.

Conclusion 

With its ruling, the Federal Court of Justice strengthens the rights of consumers in electronic commerce.

Brokers should carefully review their websites and the software used to conclude contracts. The external design must ensure that the consumer expressly and transparently confirms the commission obligation, for example by clicking on a button labeled "Place order subject to payment." If the principles established by the Federal Court of Justice are violated, the brokerage contract is invalid; the commission claim therefore does not arise.