Brokerage fee: indicative price rather than minimum price, causation of the broker despite later sale below the contract price

Facts

The appellant (client) owned an apartment building in [V.] . On 26 January 2012, she engaged [B. AG] (broker, respondent) to sell the property. The brokerage agreement contained, under the heading 'Richtpreis' (indicative price), the statement 'Die Parteien vereinbaren einen Verkaufspreis von CHF 8'100'000.--'. Pursuant to No. 3, the client was liable for commission if a sale to a prospective buyer with whom the broker had negotiated was concluded within two years after termination. Pursuant to No. 4, a commission of CHF 100'000 was owed, due upon notarisation.

The broker presented the prospective buyer [C.] . Negotiations were interrupted after the client's husband informed on 14 December 2012 that they were considering an offer from acquaintances. [C.] repeatedly contacted the broker, and the broker's inquiries to the client remained unsuccessful. On 25 February 2015, the client stated that she was now also formally ending the 'brokerage mandate that had de facto long since expired'. In 2016, she sold the property for CHF 7'100'000.-- to [D. AG] , which is controlled by [C.] .

On 10 February 2017, the broker sued before the District Court of Zurich for payment of CHF 108'000.-- plus interest at 5% from 25 May 2016, and for removal of the objection to the payment order. The District Court upheld the action on 3 June 2019. The Zurich Higher Court dismissed the appeal on 10 October 2019. The client filed a civil law appeal with the Federal Supreme Court, requesting annulment and dismissal of the action.

The disputed issues were: (1) whether a minimum price of CHF 8'100'000.-- or an indicative price had been agreed; (2) whether the brokerage agreement had terminated before the sale; (3) whether the broker's activity was causal for the purchase agreement with [C.] or [D. AG] .

Considerations

The Federal Supreme Court applies the law ex officio (Art. 106 para. 1 FSCA), but only examines adequately substantiated complaints (Art. 42 paras. 1 and 2 FSCA). A mere reference to cantonal submissions is insufficient. The lower court's findings of fact are binding unless they are manifestly incorrect (arbitrary) or based on a violation of law (Art. 105 para. 2 and Art. 97 para. 1 FSCA). Where the appellant wishes to supplement the facts, she must provide references to the record for facts properly introduced in the proceedings.

Pursuant to Art. 412 para. 1 CO, the broker undertakes, for remuneration, to furnish evidence of an opportunity to conclude a contract (Nachweismäklerei) or to arrange it (Vermittlungsmäklerei). A causal connection between the broker's activity and the conclusion of the contract is required; a psychological connection suffices. The broker bears the burden of proof for the requirements of its claim, including causation. Contract interpretation follows the principle that the actual common intention is decisive in the first instance; only where this remains unproven does the principle of trust apply (normative interpretation). Objective interpretation is a question of law, but is bound by the findings of fact regarding the surrounding circumstances.

On the minimum or indicative price: the lower court weighed the wording, typography (line spacing, bold type only for 'Richtpreis' and the price section), the absence of a property valuation, and the fixed remuneration as indications of an indicative price. The client bore the burden of proof for a minimum price and did not discharge it. Her assertion that the broker had understood the agreement as a minimum price was not raised in the double exchange of written submissions before the first instance, but only in the statement on the evidentiary result, after the novelty bar had fallen. The Federal Supreme Court is bound by this binding procedural facts; the material exhaustion of the instance is lacking (Art. 75 para. 1 FSCA). Moreover, the criticism was largely appellatory; the client did not dispute that 'Richtpreis' is to be understood as a heading. Since interpretation under the principle of trust yielded a clear result, there is no room for the rule of doubt against the drafter (in dubio contra stipulatorem); no violation of the right to be heard exists.

On termination of the brokerage agreement: the brokerage agreement may be revoked or terminated at any time pursuant to Art. 412 para. 2 in conjunction with Art. 404 CO; termination is a unilateral formative right requiring receipt. The client terminated on 25 February 2015, so…