The Landgericht München I (Munich I Regional Court) dismissed a claim for commission of approximately EUR 15,000 because no brokerage agreement complying with the statutory formal requirements had been proven (LG München I, judgment of 13 May 2026 – 3 O 13657/25). In the court’s view, the WhatsApp messages submitted did not contain a sufficiently definite agreement concerning the broker’s commission. Nor were there any claims based on unjust enrichment or management of affairs without mandate.
Dispute over the Brokerage of a Condominium
The claimant broker asserted that he had met with the owner of an apartment. During that meeting, the owner had allegedly instructed him, in return for payment of a commission, to find a buyer for an apartment located in Bayreuth.
Brother Allegedly Represented the Owner
According to the broker’s submissions, the remaining contractual terms were subsequently agreed with the owner’s brother. The brother was a friend of the claimant and also worked as a real estate broker. He had allegedly represented the owner in legal transactions and agreed via WhatsApp on details of the engagement and the amount of the commission, among other matters.
After the apartment was sold, the owner refused to pay. He disputed the broker’s account and stated that he had neither met nor spoken to him by telephone. He also asserted that he had not granted his brother a power of attorney and that the sale had taken place without the claimant’s involvement.
No Proven Authority to Represent
The Landgericht München I was not satisfied that the owner had authorised his brother to make legally binding declarations. It had therefore not been proven that the brother was able to act validly on the owner’s behalf.
Irrespective of the lack of authority to represent, the court considered the statutory formal requirements applicable to brokerage agreements concerning apartments and single-family homes.
Text Form Required by § 656a BGB Not Satisfied
Under § 656a BGB (German Civil Code), a brokerage agreement concerning evidence of an opportunity to enter into a contract for the purchase of an apartment or a single-family home, or the brokerage of such a contract, must be concluded in text form. The text-form requirement had not been satisfied because the WhatsApp messages did not indicate that the claimant was to be entitled to a commission in the amount claimed for brokering or providing evidence of a purchase agreement or buyer in respect of the property at issue. For this purpose, § 126b BGB requires a legible declaration that identifies the person making it and is made on a durable medium.
WhatsApp Communications Contained No Sufficient Commission Agreement
The decisive factor was not merely the use of a messaging service. Rather, according to the grounds for the decision, the WhatsApp messages submitted did not demonstrate a sufficient agreement concerning the commission. Messages sent via a messaging service do not satisfy the statutory text-form requirement, at least where they do not set out the essential contractual terms.
Consequently, even if the brother had been validly authorised, there would have been no formally valid brokerage agreement. The court held that the agreement would have been void for failure to comply with the formal requirement pursuant to § 125 BGB.
No Circumvention Through Non-Contractual Claims
The broker was also unable to base the remuneration sought on any other cause of action. The Landgericht rejected claims based on:
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unjust enrichment, and
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management of affairs without mandate.
Statutory Formal Requirement Remains Decisive
With regard to a claim based on unjust enrichment, the court held that the claimant had already failed to discharge his burden of proof. In addition, such a claim was precluded by the legislative purpose underlying § 656a BGB.
The purpose of the formal requirement is to prevent disputes concerning the formation and content of such brokerage agreements. According to the court’s reasoning, the law of unjust enrichment is not intended to retroactively create the legal consequences of an agreement that is invalid due to non-compliance with formal requirements. Otherwise, the statutory text-form requirement could be circumvented. The court held that the same preclusive effect applied to claims based on management of affairs without mandate.
Decision Final Following Dismissal of Appeal
The Oberlandesgericht München (Munich Higher Regional Court) dismissed the broker’s appeal (OLG München, order of 22 October 2026 – 8 U 1651/26). The Landgericht’s decision is therefore final and binding.
The Bundesgerichtshof (BGH, Federal Court of Justice) has also considered §§ 656b et seq. BGB, which were introduced in 2020, on several occasions. In each case, the proceedings were decided against the brokers involved.
Significance of Formal Requirements in Contract Law
The decision illustrates that brokerage activities alone are not sufficient to establish a claim for commission. A valid agreement, compliance with the statutory formal requirements and—in the case of an agreement concluded by a representative—provable authority to represent are required. If the essential contractual terms cannot be established from the communications, this may preclude the claim for remuneration.
For legal questions concerning formal requirements, authority to represent and the validity of contractual agreements, MTR Legal offers individual legal advice on contract law.
