You have bought a property in Austria. Two agents each send a commission claim and both refer to their contribution to the conclusion. Which invoice arrived first does not determine the allocation. Before you pay or sign a new settlement, the same transaction needs to be examined jointly. This article deals with Austrian brokerage law for purchases, not German rules and not commission calculation for a residential rental.
The central rule does not protect against every arbitrary invoice
§ 6 Absatz 5 MaklerG governs the case where, for a mediated transaction, the commission requirements are met by several intermediaries: the principal nevertheless owes the commission only once. It is therefore first decisive whether it really concerns the same transaction and indeed justified claims. [MEHRFACH]
Our editorial recommendation: Mark on each claim the alleged mandate, the specific purchase object and the conclusion to which it refers. A separately agreed service is not automatically decided merely by the word “commission”. Conversely, two invoice numbers are not proof of two independent real estate purchases.
Who actually made which contribution?
According to § 6 Absatz 1, what matters is the contractually proper meritorious activity by which the transaction with a third party came about. The precise assessment can be legally demanding. In particular, paragraph 2 contains a reservation for deviating trade practice for mere naming (Namhaftmachung); the blanket internet rule “An address never counts” would therefore be wrong. [MEHRFACH]
Arrange the actual steps chronologically: first concrete offer, documents received, discussed conditions, viewings and decisive brokerage steps. Use existing messages and agreements. The first contact in time does not automatically represent the greatest brokerage contribution. Nor does the length of a subsequently compiled activity list replace an examination of its actual connection with the purchase.
A joint claim is not resolved by two full transfers
The law assigns the commission to the intermediary whose meritoriousness clearly predominates. If such predominance cannot be established, it is to be divided according to the respective contribution, in doubt equally. This does not imply a free choice to allocate the entire sum to whomever you prefer. [MEHRFACH]
Ask both claimants for a comprehensible explanation of their respective basis and point out the other claim to the same transaction in a factual manner. Send the relevant information if necessary; personal data of other parties should not be scattered indiscriminately in a wide message round. If the allocation remains disputed, the examination requires the complete contracts and the actual brokerage process.
An invented purchase with two different contributions
In the fictitious case Elena learns about an apartment via Office A. Later Office B organises another appointment and conducts negotiations about a previously open contractual element. After the purchase both demand the full commission they each claim. Elena should not conclude from this that Office A is automatically solely entitled because of the first advertisement, nor that Office B must receive everything because of the last conversation.
She compiles the existing agreements and evidence of activities and has the allocation of claims clarified jointly. The result can concern the entitlement of a participant, a division or already the absence of alleged prerequisites. Which variant applies to Elena cannot be decided from this invented short description.
Already paid? Examine the statutory conditions closely
§ 6 Absatz 5 also contains a discharge rule in case of an overpayment to one of several participants made without gross negligence. The discharge vis-à-vis the others concerns the overpaid amount; disadvantaged intermediaries can claim compensation among themselves. These conditions do not make the first payment a universal protection against every further claim. [MEHRFACH]
§ 7 Absatz 1 ties the emergence of the commission claim to the legal effectiveness of the mediated transaction and excludes a claim for an advance. [ZEIT] This article does not replace an examination of the concrete due date, contractual conditions or limitation periods. In case of an already made payment, secure the proof of payment and the state of knowledge at that time and obtain appropriate advice before making further binding declarations. This ensures that an actual multiple claim is examined purposefully, rather than exacerbated by two unchecked full payments.