Commission in horse sales
November 27, 2010 | 25,00 EUR | answered by RA Kristian Hüttemann
Hello and thank you for taking the time to talk to me. Here's the situation: I have referred a customer to a private seller, and now the horse is actually being sold. I am the owner of a riding facility and work professionally with horses. Prior to the sale, there were several emails exchanged between the seller and myself, in which we agreed on a commission fee. The seller agreed to a commission of 5% of the sale price.
Now she is refusing to pay me the agreed amount. Do I have a legal recourse? Are emails considered as "evidence" in this case?
Dear inquirer,
Thank you for your inquiry, to which I would like to respond as follows based on the information provided and taking into account the proposed fee.
I.
In principle, the seller is obliged to pay 5% of the purchase price amount under the commission agreement concluded with you. If the seller disputes the existence of this commission claim, you, as the claimant, are required to prove the conclusion of the agreement and, if necessary, provide evidence.
II.
In principle, an email can also have probative value. An email is an electronic document whose probative value is recognized by the Civil Procedure Code, as expressly regulated by § 371 paragraph 1 sentence 2 of the ZPO:
If an electronic document is the subject of evidence, the evidence is submitted by presenting or transmitting the file.
III.
Limitations to the probative value apply nonetheless, as according to case law, the mere presence of an email does not prove that the email actually originates from the designated person. Due to the possibility of circumventing technical security measures, an email can also originate from another person who has gained access to the account.
IV.
Due to these uncertainties, anyone relying on an email must prove that the email was actually sent by the person named as the sender. This proof can be provided if the email has a digital signature that specifically identifies the sender. Without specific information about the circumstances, it cannot be conclusively determined whether your email correspondence with the seller meets the requirements of case law.
V.
However, the provision of § 138 paragraph 3 ZPO could intervene in your favor if the seller does not dispute the authenticity of the email. According to this provision, it is not sufficient to simply deny a detailed account of the facts. Rather, the opposing party must refute the presentation with corresponding factual allegations. Therefore, if you state that the commission agreement was concluded in reference to the emails, the seller must also provide a specific response. A mere denial or contradiction would not be sufficient and would be considered an admission. The lower probative value of the email outlined under III. and IV. will only be relevant if one of the parties explicitly disputes the authenticity of the email. If this is not the case, the explanations under V. apply.
VI.
Such a dispute by the seller regarding the authenticity of the emails would have consequences. Denying authenticity would be considered a violation of the truth obligation prevailing in civil proceedings, and there could potentially be liability for process fraud under § 263 of the Criminal Code.
In conclusion, the prospects of successfully asserting the commission claim in court are most favorable if:
- the emails are digitally signed by the seller
- the authenticity of the emails is not disputed by the seller.
I hope I have provided you with a sufficient overview of the legal situation. Please feel free to exercise your right to further clarification if you have any uncertainties.
Best regards,
Kristian Hüttemann
Lawyer
