Entrusting a property for sale to a real estate agent, exclusively, means refraining from looking for a seller yourself, in particular by publishing a classified ad.
The mere fact, for the owner, to offer himself this property for sale amounts to violating the contract signed with the real estate agent and justifies that he be compensated, observed the Court of Cassation.
A landlord and a real estate agent had entered into a contract which gave the agent exclusive rights to sell an apartment. A penalty clause provided that in the event of a breach of the contract by one of the parties, the other would receive a certain sum as compensation. The amount thus provided was equal to the amount of the agency’s remuneration in the event of a sale.
But the owner himself having published a classified ad four months later on a website, the real estate agent considered that the contract had been violated since his exclusivity was not respected.
Posting an ad is not selling the property, observed the owner. He ensured that the real estate agent would be paid when the property was sold. But, rectified the Court of Cassation, the question is not related to this remuneration in the event of sale. It is only a question of the conditions of the search for a buyer, noted the judges, and there is a violation of the exclusivity contract even if the property has not found a buyer.
The exclusivity clause having been violated, even without consequence, the compensation provided for in such a case was due by the seller.
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(Cass. Civ 3, 16.11.2022, H 21-22.400).
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