Validity of a brokerage contract concluded with an unauthorized broker

Facts

Kurt M. acquired several properties from company O. SA. Subsequently, he resold a portion of them. Real estate company [H. AG], domiciled in the canton of St. Gallen, is claiming a brokerage commission of CHF 290,400, corresponding to 3% of the transaction amount, of which it has already acknowledged receiving CHF 15,000. The District Court of Pfäffikon dismissed the claim of company [H. AG], but the Cantonal Court of Zurich awarded it CHF 162,000 plus interest. The defendant's appeal against this judgment was dismissed by the Federal Tribunal.

Considerations

The Federal Tribunal considered that the nullity of a brokerage contract concluded with a broker not authorized in the canton is only provided for if the cantonal law expressly stipulates it or if it follows from its meaning and purpose. In the present case, the Cantonal Court considered that the brokerage contract was not null despite the broker's lack of authorization in the canton of Bern. The Federal Tribunal cannot review the application of cantonal law by the previous instances.

Regarding…