Facts
The case concerns a real estate brokerage contract between broker A. and the seller C. for the sale of a villa at a minimum price of 2,200,000 Swiss francs. In the fall of 2010, the buyer B. contacted the broker and offered 1,800,000 Swiss francs for the villa. A. informed C. about this offer, but did not mention that B. was willing to increase the price to 1,825,000 Swiss francs. Thereupon, C. accepted a price reduction to 1,755,000 Swiss francs net, with A. securing the difference amount as additional commission.
On October 21, 2010, A. additionally concluded a second brokerage contract with B., under which B. was to pay 1,800,000 Swiss francs plus a commission of 30,000 Swiss francs (including 5,000 Swiss francs "success commission") for the villa. On October 26, 2010, C. finally sold the villa to B. for 1,800,000 Swiss francs.
Considerations
The Federal Supreme Court holds that in the real estate sector, the mere conclusion of a brokerage contract by the broker with the seller (or buyer) inevitably leads to a conflict of interest if the broker additionally concludes a second brokerage contract with the buyer (or seller). In such a case, the broker violates his duty of loyalty to one of his clients or acts in his own interest, which, according to Art. 415 of the Swiss Code of Obligations, leads to the loss of his…