Commission plus flat-rate care fee?" In BOOTE 12/10 we already addressed the issue of a yacht broker asking customers acquired by telephone to pay on the basis of a subsequent written brokerage order despite the lack of a successful sale.
Another reader recently described a new case to us. Here too, the caller claimed to be an employee of a well-known yacht brokerage firm and to have an interested party for the boat advertised in our magazine. The owner should think about how much he wanted for his boat. His company would then try to sell the boat at a premium. There was initially no mention of costs if the sale was not successful.
After the phone call, the caller sent the called party a brokerage contract which contained the surprising reference to a flat-rate expense allowance in the event of cancellation by the client. The person concerned felt this was cheeky. He did not sign and did not move again. When the agent contacted him again by telephone, he was informed that no co-operation would be established in this way.
The caller confidently commented on the reproach that he should have played with open cards from the outset with regard to the expense allowance with the words: "You can't say everything in the first conversation, it takes far too long." Further calls were made at short intervals in a persistent attempt to change the supposed customer's mind. The estate agent only gave up when he was told that they had deliberately advertised the boat in BOOTE because they wanted to choose the buyer themselves and not let anyone else make money from the sale.
Many private boat sellers seem to have had experiences like this. Those affected are contacted after the telephone call. Anyone who signs the brokerage contract owes the yacht broker the payment of the flat-rate expense allowance in the event of cancellation, at least according to the wording of the contract. Anyone who objects to the invoice and does not pay will receive a letter from a debt collection agency.
There are those affected who have stubbornly resisted all requests for payment and have not paid anything to date. So far, we are not aware of any case in which the yacht broker has taken legal action against a recalcitrant non-payer. However, one person has come forward who ended the dispute by agreeing a lower amount with the yacht broker.
According to a recent reader message we received, the yacht brokerage firm is now using an amended form contract, according to the wording of which not only the flat-rate compensation for expenses in the event of cancellation of the contract by the client, but also the commission is due for payment if the client sells the boat to be brokered himself and makes the mistake of not informing the broker of this immediately and not sending him a copy of the purchase contract within ten days of the sale.
Just like the question of the legality of the billing of the flat-rate expense allowance, the question of whether those affected in the manner described can successfully defend themselves against the yacht brokerage firm's actions by asserting a claim for injunctive relief has apparently not yet been answered in court.
The same applies to the question of whether the yacht broker's actions violate the ban on unfair competition. In any case, however, the question of whether the yacht broker is not so much interested in the success of his sales endeavours as in the lump-sum compensation independent of success will remain unanswered.
