# Withdrawal instruction for brokerage contracts

> **Not legal advice.** This text is no substitute for legal counsel. For individual contracts and disputes, always consult a lawyer or your competent IHK.

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## What is this about?

When a brokerage contract with a **consumer** is concluded away from business premises or via means of distance communication (email, phone, WhatsApp, web form), the consumer has a statutory **right of withdrawal** under Section 312g of the German Civil Code (BGB). The agent must properly instruct the consumer about this right before the contract is concluded. If the instruction is missing, the consequences for the fee claim are severe.

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## Legal basis

- **Section 312g BGB:** right of withdrawal for consumer contracts concluded off-premises and at a distance
- **Section 355 BGB:** general rules of the right of withdrawal
- **Section 356 para. 4 BGB:** expiry of the right of withdrawal once the service is fully performed
- **Art. 246a EGBGB:** mandatory information, including the official model withdrawal instruction (Annex 1)

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## When does the right of withdrawal apply?

The right of withdrawal applies when **all three** conditions are met:

1. **The contract partner is a consumer:** a natural person who concludes the contract mostly outside their trade or self-employed activity. A private person selling their owner-occupied apartment is a consumer.
2. **A brokerage contract exists:** as a search, introduction or brokerage mandate. Even an implied agreement (for example a first contact including a commission notice) can be enough.
3. **The contract is concluded off-premises or via distance communication:** for example by email, phone, online form, or during a viewing inside the property.

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## When does it not apply?

- **B2B contracts:** deals with commercial buyers, property developers, housing companies.
- **Contracts signed in person at your business premises:** when the client enters your office and signs the contract there.
- **Residential rental contracts (for the tenant):** these are excluded from the right of withdrawal under Section 312 para. 4 BGB. The brokerage contract about them, however, is not. Be careful with the distinction.

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## Withdrawal period

The withdrawal period is **14 days from the conclusion of the contract**. Within this period the consumer must send you an unambiguous declaration of withdrawal: no specific form is required (email, letter, fax). The content must make clear that the contract is being withdrawn. A particular format (such as the official model text) is not necessary.

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## Missing or faulty instruction: the most important consequence

If you do **not properly instruct** the consumer, the withdrawal period extends to **12 months and 14 days** from the conclusion of the contract (Section 356 para. 3 sentence 2 BGB, the "long right of withdrawal").

The practical consequence: the client can still withdraw a year after the contract was concluded, even if the main contract (purchase or rental agreement) has long been signed and the commission has been paid out. In that case the full commission can be reclaimed.

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## Fees in case of withdrawal

The fee claim depends on whether the consumer expressly consented to the **early start** of the brokerage work:

| Constellation | Fee claim |
|---|---|
| Withdrawal before the service began | No claim |
| Withdrawal during the service, without prior express consent to the early start | No claim |
| Withdrawal during the service, with express consent to the early start (Section 356 para. 4 BGB) | Proportional claim for services already rendered |
| Withdrawal after the service was fully performed with consent | Full claim (right of withdrawal expired) |

The **express consent to the early start** is therefore decisive in practice. It should exist in writing or text form, and ideally be initiated by the consumer.

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## Model text (abridged)

```
Widerrufsbelehrung

Sie haben das Recht, binnen vierzehn Tagen ohne Angabe von Gründen
diesen Vertrag zu widerrufen. Die Widerrufsfrist beträgt vierzehn
Tage ab dem Tag des Vertragsabschlusses.

Um Ihr Widerrufsrecht auszuüben, müssen Sie uns
   [Name, Anschrift, ggf. Telefonnummer, Email-Adresse]
mittels einer eindeutigen Erklärung (z.B. ein per Post versandter
Brief oder Email) über Ihren Entschluss, diesen Vertrag zu
widerrufen, informieren. Zur Wahrung der Widerrufsfrist reicht es
aus, dass Sie die Mitteilung über die Ausübung des Widerrufsrechts
vor Ablauf der Widerrufsfrist absenden.

Folgen des Widerrufs: [Hinweis auf §357 BGB]
```

The official model text is found in **Annex 1 to Art. 246a Section 1 EGBGB** and must be used unchanged to preserve the statutory presumption of correctness. Your own wording is possible but risky: in a dispute its validity is then examined case by case. Note that the instruction itself must be issued in German for German consumer contracts; the block above is shown in the original for that reason.

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## How the platform supports you

In an upcoming expansion stage (Phase 2) a tool for the **automatic generation of the withdrawal instruction** with pre-filled contract data will become available. Until then we recommend the official model text as an annex to the written brokerage contract, visually highlighted and with a separately signed confirmation of receipt.

Such instructions can be stored as a template in the **credentials vault** module and shared with the whole team, so the entire office works with the same current version.

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## Further sources

- **Art. 246a EGBGB with Annex 1:** full text and official model at `gesetze-im-internet.de`
- **IVD guide on the right of withdrawal:** `ivd.net`, professional law section
- **Federal Court of Justice case law:** in particular BGH VIII ZR 89/05 on the consequences of instruction errors