Brokerage contract
per click
ineffective.
Brokerage contract
per click
ineffective.
from
Can a brokerage contract be completely invalid despite an exposé, viewing, purchase offer and notarization? And why does an inconspicuous button play the main role?
Online broker contract
The case looks like an everyday transaction: a real estate agent offers a detached house online, a prospective buyer contacts her by telephone, receives an exposé and documents from a CRM system, clicks on the links provided, confirms receipt of the documents by ticking a box and then arranges a viewing. After a few bids, a notarized purchase contract is finally signed. Everything seems routine and efficient – digital, in fact. At the end, the estate agent charges her commission, almost 30,000 euros. But the buyer refuses to pay. His argument: the brokerage contract was never validly concluded.
What initially appears to be a tactical attempt to circumvent the commission claim leads to a clear – and for many surprising – decision: The Federal Court of Justice states that the digitally concluded brokerage contract was invalid from the outset because the confirmation button was only labeled “Send”.
Why the button is so important
Since the introduction of the European Consumer Rights Directive and its transposition into German law, digital ordering situations must be clearly designed. The legislator wanted to prevent consumers from inadvertently entering into fee-based contracts. The solution was a clear, almost banal-sounding requirement: if a contract requires payment, the button with which the consumer concludes the contract must clearly indicate this. Terms such as “order with obligation to pay” or similarly clear formulations are mandatory.
Essentially, it is about transparency and fairness in online trading. Consumers should understand at first glance whether they are committing to a payment. This idea applies not only to the purchase of washing machines or streaming subscriptions, but also wherever a chargeable service is ordered – including brokerage contracts.
Federal Court of Justice: plain language for digital practice
In his Judgment of 09.10.2025 – Ref. I ZR 159/24 the Federal Court of Justice therefore ruled that a brokerage contract is also a contract through which the consumer “undertakes to make a payment” within the meaning of the button solution. This sounds unspectacular, but has enormous consequences.
The estate agent in the case used an online-based CRM system. This allowed the prospective buyer to call up an exposé and click to confirm that they had taken note of various documents. The decisive point: The button with which the acceptance of the brokerage contract was triggered was labeled “Send”. This was not enough for the Federal Court of Justice. In the court’s view, the payment obligation must be emphasized so clearly that misunderstandings are ruled out. This was precisely not the case here.
The contract was therefore – and the Federal Court of Justice expressly emphasizes this – definitively invalid. Unlike some higher courts before it, the Federal Court of Justice does not believe that a subsequent action by the consumer – such as a request for a viewing, a purchase offer or the use of further services – can “cure” the incorrect conclusion of the contract. The requirements of the button solution leave no room for subsequent “overlooking”.
It is interesting that the Federal Court of Justice leaves open a theoretical possibility of confirmation: A subsequent, deliberate new conclusion of the contract by the consumer would be conceivable. However, this new contract would also have to meet the strict formal requirements. A casual e-mail or a signed standard form is not sufficient. In practice, this means that an effective subsequent confirmation of digital brokerage contracts is only possible if it is structured similarly to the original order process – with a clear emphasis on the payment obligation. Realistically, this is rare.
Consequences for brokers, portals and digital service providers
The ruling has implications that extend far beyond the real estate market. In principle, it affects every entrepreneur who offers services on the internet for which a payment obligation may arise. The key message is that anyone using digital business models must also take legal aspects into account when designing their UX. “Pretty buttons” are not enough – they have to be legally compliant.
Digital processes that run via CRM systems, real estate portals or third-party providers must be checked carefully. Even if software manufacturers specify certain standard texts, the responsibility for the correct design lies with the entrepreneur. The Federal Court of Justice has ruled that an estate agent who relies on a neutral “send” is not entitled to commission – neither contractually nor through the law of unjust enrichment. So anyone who relies on a poorly labeled UI element risks going away completely empty-handed.
The decision is therefore a mandate to review your own processes. The button solution applies wherever a contract with a payment obligation arises, even if the payment is only due later or depends on the occurrence of a successful outcome. This affects brokerage, verification, comparison and matching services as well as marketplaces.
Conclusion
The case shows how quickly digital processes can lead to legal problems. A single button – labeled too imprecisely – was enough to cause an extensive broker process to come to nothing. The Federal Court of Justice is thus following a line that consistently implements digital consumer protection and clearly places the responsibility for clear, comprehensible processes with the companies.
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