Real estate brokerage agreements are increasingly being concluded via digital channels. Contact forms, automated quote processes, and standardized online procedures have long been established in real estate practice. In its ruling of October 9, 2025, the Federal Court of Justice clarified key requirements for such online brokerage agreements, once again emphasizing the importance of the so-called “button solution.”
The decision affects not only real estate agents in the strict sense, but all market participants who offer brokerage services to consumers via the Internet. It necessitates a critical review of existing contract workflows and sets clear standards for the valid conclusion of contracts in electronic commerce.
Legal Background: Consumer Protection in Electronic Commerce
The legal basis for the decision is Section 312j of the German Civil Code (BGB). This provision is part of special consumer protection law and applies to contracts between businesses and consumers that are concluded via electronic means of communication and are aimed at a service provided for a fee.
The aim of the law is to protect consumers from unclear or hidden cost traps on the internet. Particularly in the digital environment, there is a risk that payment obligations are not perceived with sufficient transparency because contracts are often concluded with just a few clicks.
The so-called “button solution” of § 312j BGB
The core of Section 312j of the German Civil Code (BGB) is the so-called “button solution.” It requires businesses to design the final step of the contract conclusion process to be particularly clear.
Immediately before the consumer submits the contractual declaration, all essential information—in particular the price or the method of payment—must be displayed clearly and comprehensibly. Furthermore, the law requires an unambiguous confirmation of the payment obligation by the consumer.
This confirmation must be made via a button labeled accordingly. Only wording that unambiguously indicates that clicking triggers a payment obligation is permissible.
Legal Consequences of Violating the Button Solution
The legal consequences of a violation are particularly severe. According to Section 312j(4) of the German Civil Code (BGB), a contract is only concluded if the requirements of paragraph 3 are met.
If the button is not properly labeled, the contract is void from the outset. This is not a mere formal error, but an obstacle to validity with definitive effect.
The facts of the case decided by the Federal Court of Justice
The ruling was based on a classic case from real estate practice. A prospective buyer was guided through a digital process to conclude a brokerage contract. At the end of this process chain, he confirmed his declaration by clicking a button labeled simply “Send.”
After the subsequent purchase of the property, the real estate agent demanded a substantial commission. The customer refused to pay, arguing that no valid brokerage agreement had been concluded.
Divergent Decisions by the Lower Courts
The lower courts reached different conclusions. While the trial court denied that a valid contract had been concluded, the appellate court found that the requirements for a commission claim had been met.
The Federal Court of Justice overturned the decision of the second instance and clarified that, when assessing the validity of an online brokerage contract, the requirements of § 312j BGB must be strictly observed.
Application of the “button solution” to brokerage contracts
The central issue in the decision is whether brokerage contracts fall under the “button solution” at all. The Federal Court of Justice expressly affirms this.
What is decisive is not when the commission becomes due, but that the consumer creates the legal basis for a payment obligation as soon as the brokerage contract is concluded. This moment must be transparent and unambiguous.
No special treatment due to the commission’s performance-based nature
In the court’s view, the fact that the brokerage commission is typically only due in the event of a successful transaction does not lead to a different assessment. Even a payment obligation subject to a condition precedent or arising in the future falls within the scope of protection of Section 312j of the German Civil Code (BGB).
The consumer must be able to recognize at the time of contract conclusion that their declaration may have economic consequences.
Insufficient button labeling as an obstacle to validity
A neutral label such as “Send,” “Continue,” or “Submit Request” does not meet these requirements. Such terms do not make it clear that the consumer is making a declaration that entails a cost.
In the opinion of the Federal Court of Justice, the sole determining factor is whether the final click can objectively be understood as consent to a payment obligation. If this is not the case, the contract is not concluded.
No salvation through explanatory text
The Senate clarifies that explanatory notes in the body text or in the General Terms and Conditions cannot compensate for an insufficient button label.
The decisive factor is solely the moment of immediate conclusion. It is precisely at that point that the consumer must be unambiguously informed of the payment obligation.
No exception for standardized online communication
The statutory exception for exclusively individual communication also does not apply in such cases. This exception requires that the consumer freely formulate their declaration.
If, on the other hand, they are guided through a predefined online form or standardized contract process, this does not constitute individual communication within the meaning of the law.
Final invalidity of the brokerage contract
The Federal Court of Justice emphasizes that a violation of Section 312j of the German Civil Code (BGB) leads to the contract’s definitive invalidity. A provisional invalidity or mere voidability is ruled out.
This strict legal consequence aligns with the legislative goal of effectively protecting consumers from cost traps.
Subsequent confirmation only under strict conditions
Although an originally invalid contract can generally be confirmed retrospectively, such confirmation must itself meet the requirements of § 312j BGB.
The subsequent confirmation must also serve a clear function of providing cost information and must not circumvent the protective provisions.
No implied new contract through continued conduct
Mere continued conduct on the part of the consumer is not sufficient for this purpose. Neither the scheduling of viewing appointments nor the use of further brokerage services automatically leads to a valid new contract.
The legislature requires an explicit statement that clearly indicates the obligation to pay.
Impact on claims under the law of unjust enrichment
The distinction from the law of unjust enrichment is particularly relevant in practice. If no valid brokerage contract is concluded, the broker generally cannot claim his commission through compensation for loss of value or unjust enrichment.
Otherwise, the protective purpose of the “button solution” would be undermined, as the business would be placed in the same economic position as if the contract had been validly concluded.
Consequences for the Design of Online Checkout Processes
The decision compels brokers and platform operators to carefully review their digital contract processes. Even minor ambiguities in the final step can have significant economic consequences.
Particularly affected are automated contact forms, lead generation processes, and digital reservation processes that effectively amount to the conclusion of a brokerage contract.
Increased requirements for transparency and clarity
The Federal Court of Justice makes it clear that transparency in electronic commerce is non-negotiable. The consumer must be able to recognize the economic substance of their declaration at the decisive moment.
Technical elegance or user-friendliness must not come at the expense of legal clarity.
Strengthening consumer protection
From the consumer’s perspective, the decision strengthens legal certainty. Payment obligations on the internet must be clearly recognizable and must not be hidden behind neutral clickable areas.
The Federal Court of Justice thus continues its consistent enforcement of formal requirements designed to protect consumers.
Context and Outlook
The ruling sets a precedent for digital contract formation in real estate brokerage law. It makes it clear that traditional consumer protection instruments apply without restriction even in the modern online context.
Companies would be well advised to regularly review their digital business models not only from a technical perspective but also from a legal one.
Conclusion
Online brokerage contracts are fully subject to the requirements of Section 312j of the German Civil Code (BGB). If there is no clear confirmation of the payment obligation in the final step of the contract conclusion, no valid contract is formed.
The Federal Court of Justice thus makes it unmistakably clear: The final click is decisive. Anyone who is legally imprecise here risks the complete loss of their commission claim.
The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.