The Third Panel of the Superior Court of Justice (STJ) upheld a decision of the Court of Justice of São Paulo (TJSP) that exempted a couple from paying commission to the brokers responsible for intermediating the sale of a house, because they had withheld important information from the buyers during the negotiation.
The buyers paid R$ 400 thousand as a deposit and signed a private instrument of purchase and sale, but requested the rescission upon subsequently learning of the existence of several judicial claims against companies of which the sellers were partners – which could result in the loss of the property. The amount of the deposit was returned.
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Commission to the brokers
The brokers filed a collection action against the sellers to receive the brokerage commission, claiming that the fee is due even in the case of a change of mind by the parties, as provided for in article 725 of the Civil Code.
The court of first instance dismissed the claim, since it understood that the commission is not due if the deal was not concluded. The decision was upheld by the court of second instance, which emphasized that the motivation for unwinding the deal justified the non-payment of the commission.
Against that decision, the brokers appealed to the STJ, arguing that, since the purchase and sale agreement had been signed and the deposit paid, the useful result of the deal had occurred, giving rise to the right to the brokerage fee.
Diligence and prudence
In her vote, the rapporteur of the case at the STJ, Justice Nancy Andrighi, pointed out that, according to the most recent case law on the subject, “the brokerage commission for real estate intermediation is due if the work of bringing the parties together carried out by the broker effectively results in the consensus of the parties as to the essential elements of the deal”.
However, the Justice emphasized that article 723 of the Civil Code requires the brokerage professional to act with diligence and prudence when mediating a deal, providing future buyers with all the information necessary for the secure conclusion of the contract – which allegedly did not occur in this case.
The Justice understood that the brokers did not act with diligence or prudence, since it was incumbent upon them to verify beforehand the existence of any pending judicial actions against the sellers, or against the legal entities of which they were partners.
“Even though there was concrete bringing together of the parties, with the signing of the promise of purchase and sale, and even the payment of the deposit, the subsequent change of mind on the part of the promissory buyers occurred due to a fact attributable to the brokers themselves, who could have avoided the subsequent dealings and formalizations between the contracting parties had they sought negative certificates in the name of the legal entities of which the sellers are partners. The payment of the brokerage commission therefore proves to be undue”, the Justice concluded.
Source: STJ
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