Is the broker a messenger or also a trustee?

If the broker makes a false offer and the other party agrees, does a purchase agreement come into existence? The answer to that question is not black and white. It depends on whether the broker had power of representation. This has been the subject of much litigation. Quite simply, it depends on whether the broker was merely a messenger, or was also acting as an agent. These questions came up in a case in which the Arnhem-Leeuwarden Court of Appeal ruled on September 3, 2024 (ECLI:NL:GHARL:2024:5631). Myrthe de Vries is lawyer specializing in real estate. She regularly handles disputes arising in the purchase and sale of homes and apartment rights. Myrthe discusses the ruling in that case. In doing so, she addresses the question of whether, despite the lack of the buyer's wish to enter into the agreement, a purchase agreement had been concluded.

Buyer: ‘proposal still stands’. Seller agrees

Cattenburg Vastgoed B.V. is a professional property owner and is selling an apartment right. The potential buyer (and defendant) is a natural person who owns several properties himself. Both parties are represented by brokers. Cattenburg by broker DMT, the buyer by broker Breeveld Vastgoed. At some point Breeveld made an offer for the apartment, after which Cattenburg (through its broker) made a counter-offer. Breeveld then informs Cattenburg that his client does not agree to the counter-offer, whereupon Cattenburg's broker asks:

“And for my image: first proposal still stands?”

Breeveld then confirmed that the buyer's proposal indeed still stands:

“I would like to answer the following question, the first proposal from our client is still pending.”

Offer made by broker accepted: purchase agreement or not?

Cattenburg then accepts that first offer with the words: “On behalf of the vendor, we may approve the following proposal from your colleague”. The potential buyer then informs Breeveld that the first offer no longer stood at all and he no longer wants to buy the apartment right at that price either. Breeveld in turn lets DMT know that. But, according to Cattenburg, a purchase agreement had already been reached. Indeed, Breeveld allegedly had authority to represent the potential buyer, actually did so, and made an offer based on that power of representation. Because that bid was accepted, there would have been a purchase agreement have come about.

Because the buyer failed to honor that purchase agreement, according to Cattenburg, the seller has the put the buyer in default. Subsequently, Cattenburg has the purchase agreement rescinded.

Was the broker an usher or representative?

The question of whether a purchase agreement was formed is assessed in this case by looking at whether Breeveld had power of attorney to make a proposal on behalf of the buyer, or whether she was merely acting as a messenger. Indeed, that makes a big difference legally. According to Cattenburg, Breeveld had power of attorney for the buyer. After the purchase agreement was dissolved, she sold the apartment right to a third party. This was at a lower purchase price, the judgment suggests. The seller claims damages of the buyer.

Did the broker represent the buyer as an agent? And therefore made an offer to which the buyer was then bound? Or is it more nuanced?

Broker not authorized to represent

The Court addresses the standard to be applied. It referred to the Supreme Court rulings of August 9, 2002 (ECLI:NL:HR:2002:AE2380) and June 26, 2009 (ECLI:NL:HR:2009:BH9284). A broker's task of mediation is basically limited to negotiating the creation of an agreement. That, in principle, is not a power of attorney to conclude a purchase agreement. Nor does that assignment to the broker create an appearance of power of attorney.

Representative authority requires more

To assume the broker's power of representation, more is needed. The other party (Cattenburg) must make that plausible. He must state and prove which circumstances make that the broker did act as agent in this case. Or circumstances that make Cattenburg trust that this was the case. The fact that Breeveld made an offer as an agent is insufficient for this. Even the buyer's instruction to his own broker that that broker may make an offer is not enough. The starting point then is and remains that the broker is only a messenger (messenger) and not an agent.

No protection against improper conduct as messenger

Cattenburg argued that a purchase agreement had still been reached. Indeed, she needed to be protected from the misrepresentations Breeveld had made on behalf of his clients. Cattenburg invoked the statutory provisions on the messenger in support of its position. In Article 3:37 paragraph 4 BW namely, states what to do if a messenger has incorrectly conveyed a statement:

“When a person or means designated by the sender for that purpose has improperly conveyed a statement addressed to another, what has come to the knowledge of the recipient shall be deemed to be the sender's statement, unless the method of conveyance followed was determined by the recipient.”

The recipient of the incorrect message is then thus protected, because the incorrect statement may then be regarded as correct. In other words: Breeveld's incorrect confirmation that the offer still stood then counts as a statement by the potential buyer. Even if he had not wanted to make this statement.

However, that flyer does not hold true in this case either. This is because Broker Breeveld did not convey a statement from the buyer. She made the statement without consultation. Therefore, Article 3:37 paragraph 4 of the Civil Code does not apply. This only applies if the statement was made at the request of the buyer, but was incorrect in terms of its content. In that case, therefore, a sales contract could possibly have been concluded. Incidentally, in that case the broker liable could be against the buyer.

Real estate lawyer in dispute over purchase agreement

Myrthe de Vries is a lawyer in real estate law at Lexys Advocaten in Rotterdam. As a lawyer, she assists real estate developers, contractors, real estate brokers and owners' associations, among others. She also represents private individuals. Myrthe de Vries and her firm specialize in settling disputes regarding the purchase and sale of houses, apartments and commercial property. Visit contact at for more information, we would be happy to look with you to see what we can do for you.