Article 961
An intermediary contract is a contract in which the intermediary reports to the client the opportunity to conclude a contract or provides intermediary services for the conclusion of a contract, and the client pays remuneration.
I. Purpose of this Article
This article deals with the concept of intermediary contracts.
II. Evolution of the Provisions
Chapter 23 of the original Contract Law provided for "intermediary contract", and in order to facilitate understanding, the Civil Code changed the name of "intermediary contract" to "intermediary contract" and "intermediary" to "intermediary". This article is an evolution of Article 424 of the original Contract Law, which stipulates that: "An intermediary contract is a contract in which the intermediary reports to the client the opportunity to conclude a contract or provides intermediary services for the conclusion of a contract, and the principal pays remuneration. Comparing the two provisions, the specific content has not been modified, but only the name of the "intermediary contract" and "intermediary person" has been modified.
3. Interpretation of Provisions
This article regulates the concept of intermediary contracts.
An intermediary contract refers to a contract in which the intermediary reports to the client the opportunity to conclude the contract or provides intermediary services for the conclusion of the contract, and the client pays remuneration. An intermediary who reports on contracting opportunities is called a reporting intermediary, and an intermediary who engages in a media contract is called a mediator. In an intermediary contract, the party that provides the opportunity to report on the contract or provides the medium of exchange is the intermediary, and the party who pays the remuneration is the principal.
Intermediaries, also known as intermediaries, are an ancient commercial phenomenon that has existed in ancient Greece. Medieval intermediaries were of a public nature, and they were not allowed to engage in intermediary activities unless they were members of an intermediary group. Subsequent intermediary activities are all of a government-run nature, and it is forbidden to engage in intermediary activities without permission. In ancient times, the mainland called the intermediary "Hulang", which refers to the intermediary who promotes the transaction between the two parties and takes remuneration from it.
The characteristics of the intermediary contract are: (1) the intermediary contract is a well-known contract, and the legislation recognizes the independent status of the intermediary contract and does not prohibit it. (2) An intermediary contract is a contract under which one party reports contracting opportunities for the other party or provides intermediary services for the contracting process. (3) The intermediary contract is a paid, promised and non-formal contract. (4) There is uncertainty in the performance of the payment obligation of the principal of the intermediary contract, and it is also uncertain whether to pay the remuneration to the intermediary. (5) The subject of the intermediary contract is special and must be a legal person or natural person who has been approved to engage in intermediary business.
4. Cases
Ningbo Shunde Real Estate Brokerage Co., Ltd. and Xu Moumou intermediary contract dispute case
Facts: Through the plaintiff's intermediary, the plaintiff and the defendant signed the "Stock Housing Sale and Purchase Intermediary Contract" with Luo Moumou and Chai Moumou, who were not involved in the case, stipulating that Luo Moumou and Chai Moumou sold their real estate located in Room ×××××, Building ××, Huiyue Bay Flower Garden, Qiuai Town, Yinzhou District, Ningbo City, to the defendant, and agreed on an intermediary service fee of several yuan. The current defendant has not paid so far, giving rise to a lawsuit. The court held that the intermediary contract is remunerative, it is a promise or no contract, and the intermediary and the principal have the same expression, and the intermediary contract can be established without actual delivery. The plaintiff has procured the defendant and the seller to sign the "Stock Housing Sale and Purchase Intermediary Contract", and the intermediary service is completed, and the defendant should pay the service fee according to the contract. The plaintiff's claim is based on the law, and this court supports it.
5. Analysis
The intermediary contract is also an intermediary contract, and its most important feature is that it does not intervene in the contractual relationship between the two parties, but only provides intermediary services for both parties to the contract, and the main services include providing contracting opportunities and providing trading media. In this case, the plaintiff, as a real estate brokerage company, had the obligation to provide the corresponding housing information, the information of the buyer and seller, and facilitate the conclusion of the housing sales contract. According to Article 961 of the Civil Code, an intermediary contract is a contract in which the intermediary reports to the client the opportunity to conclude the contract or provides intermediary services for the conclusion of the contract, and the client pays remuneration, and the intermediary has the right to require the client to pay the corresponding remuneration based on its intermediary services.