Plaintiff: Bypassing the intermediary to buy a house,
The plaintiff who should pay the intermediary remuneration said that in May last year, the defendant and his wife came to consult, and the company appointed the intermediary Huan Wang to receive them. Wang Huan showed two plaintiffs around the house and answered many questions about real estate tax and commission. Among the many houses provided by the company, the plaintiff and his wife finally took a fancy to the house involved. The two sides initially discussed the agency fee, and the defendant claimed that the agency fee was too high. At the end of July, the two plaintiffs found another real estate agent, through which they signed a house purchase contract with the landlord Li Xia. According to the provisions of Article 965 of the General Principles of Civil Law of People's Republic of China (PRC), if the client directly concludes a contract by taking advantage of the trading opportunities or media services provided by the broker after accepting the services of the broker, he shall pay remuneration to the broker.
Defendant: Maybe we have already seen it.
Do I have to buy it in their store? During the trial, the defendant and his wife made an analogy and refuted the plaintiff's claim: "Do we have to buy this car in a 4S shop because we tried?" The two defendants said that in order to buy a house, they compared the housing information of several intermediary companies. The information of the houses involved was seen by them through the network platform. The plaintiff and another intermediary took them to see the house. After they finally selected a house, they signed a house purchase contract with the landlord Li Xia in another intermediary company by comparing the intermediary fees and other factors. Their behavior is normal "shopping around", so the plaintiff's claim cannot be established.
The court ruled that the defendant did not have to pay the intermediary remuneration.
The court held that the plaintiff's claim that the court ordered the defendant to pay the agency fee should not be supported for the following reasons:
(a) the plaintiff failed to facilitate the establishment of the contract
Article 964 of the Civil Code of People's Republic of China (PRC) stipulates that if the broker fails to facilitate the establishment of the contract, he shall not demand payment; However, customers may be required to pay the necessary fees for intermediary activities as agreed. Combined with this case, although the plaintiff recommended the information of the real estate involved to the defendant and provided the introduction of taxes and commissions, the defendant finally paid the agency fee to the third party without choosing to make a deal with the plaintiff, and signed a house sales contract with the landlord in the third party. The plaintiff failed to facilitate the establishment of the house sales contract between the defendant and the landlord Li Xia, and claimed that the defendant paid the agency fee, which was not supported according to law.
(2) No intermediary contract was signed between the original defendants.
According to the actual situation, in order to sell the house as soon as possible, the landlord will register the real estate information in different real estate agents. Real estate information registration is free. According to the usual practice, it is also free for real estate agents to show people around the house without special agreement. Buyers will go to various real estate agents to learn about real estate information, and even inquire about the same real estate in different real estate agents, and learn about taxation, agency fees, transfer and other aspects in different real estate agents. In order to retain customers, real estate agents also know nothing. In this case, the original defendant did not sign a contract binding on both parties at the first contact. The two sides did not agree that the defendant must pay the agency fee when purchasing the house recommended by the plaintiff. The plaintiff did not provide evidence to prove that the two parties agreed that the defendant must pay the agency fee after accepting the house inspection and information introduction service, and the defendant had paid the agency fee to the third party in this case. According to the trading practice and Article 964 of the General Principles of Civil Law of People's Republic of China (PRC), he asked the plaintiff to pay the agency fee.
Interpretation: Is this situation a "jump order"?
After accepting the trading opportunity or media service provided by the intermediary, the customer uses the above information to bypass the intermediary to conclude a contract, commonly known as "jumping orders". Article 965 of the Civil Code makes a special provision for this kind of behavior, that is, "if a contract is concluded directly without an intermediary, the remuneration shall be paid to the intermediary, which is also the basis for the plaintiff to claim rights in this case.
In this case, the defendant and his wife accepted the "house inspection" service provided by the plaintiff's intermediary, but bypassed the plaintiff and signed a house purchase contract with the original owner through a third party. Does it constitute a "jump order"? The verdict in this case gives a clear negative answer. The reasons are as follows: firstly, the defendant did not "take advantage of the trading opportunities or media services provided by intermediaries". In this case, although the defendant consulted the housing information provided by the plaintiff's company, the housing information was published in several intermediary companies through the network platform, and even another intermediary company published it earlier than the company, indicating that the information could be obtained through other open and proper channels, and the defendant did not sign a contract through the information provided by the plaintiff. Second, the intermediary contract between the original defendant was not established. In this case, although the defendant looked at the house and made inquiries under the guidance of the plaintiff's intermediary, neither the original defendant nor the defendant entered into a written contract during the whole process. In view of the fact that "jumping orders" is a breach of contract, there is no contract constraint between the original defendants in this case, so there is no "jumping orders" breach of contract.