174/2007 Official Gazette of the DOD (476801)
(1ST LAW PUBLICATION)
Brokerage contract. Under what conditions is a brokerage fee due?
Incidents of return by the broker of a fee received due to its non-payment
intended lease agreement. Affidavits. Non-existent evidence
instrument if it was taken after the issuance of a decision by the court of first instance and h
summons was served on the attorney who was subpoenaed.
Decision number 174/2007
DODEKANIS COURT OF APPEALS
Composed by Judges: Evripides Lagoudianaki, President of Appellants,
Emmanuel Vasilakis (Rapporteur) and Haridimos Pratikakis, Appellants and the
Secretary Kiriaki Kyriakou.
He met publicly in his audience at Rhodes on February 9
2007, to try the following case, between:
Of the appellant: M. V., a resident of Rhodes, who represented himself
attorney of attorney of Georgios Mavrommatis.
The appellant: M. co. S. K., a resident of Rhodes, who appeared
through the attorney-in-fact of Ioannis Karamihalis.
The respondent and S.K., a non-party in this case, brought an action against
appellant and the non-party in the present trial, T. T., before him
Single-member Court of First Instance of Rhodes, dated 2-26-2002 and with no.
130/26-3-2002 action of. That Court with no. 166/2004
his final judgment, rendered in the absence of the defendants, was granted in part
the action against the already defendant-plaintiff. Against this decision o
first defendant applied to the Court that issued it, addressed to
present, the suit from 23-3- 2005 and with no. 82/24-3-2005, appeal
of, a copy of which he deposited in the registry of this Court with
no. ext. cat. 112/29-3-2005, for the discussion of the one that was legally written
on the board, a hearing was set for 4-7-2006 and with a postponement of the mentioned
at the beginning of this decision.
During the hearing in which the case was legally heard
in turn from the relevant board, their attorneys
parties also developed their claims orally and referred to
written proposals submitted by them.
Study the Pleadings
It was thought according to the law
According to article 528 of the Civil Code, as it applies after its replacement by
article 16 par. 4 of Law 2915/01, if an appeal is filed by a party who was tried
as if it were present, the called decision disappears within the limits, which
determined by the appeal and the additional grounds. The appellant is entitled
to put forward all the allegations that he could propose at first instance.
According to article 524 par. 2 of the same Code, as replaced by
article 16 par. 3 of Law 2915/2001, the oral debate according to the provisions of
of article 270 is mandatory only in the case of article 528, in which
all the provisions of article 270 apply. Of the above provisions
it follows that the appeal still operates as a substitute for it
of canceled unjustified default judgment and brings, without investigation
of its reasons, the disappearance of the appealed decision within the limits, which
determined by the appeal and the additional grounds, whether or not
it is a regular or a special procedure, since in both cases its adjudication
of the case ends in a discussion and the implied confession from the
default judgment is unknown, and the retrial of the case by the Court of Appeal, the
which is transformed in this case into a court of first instance (see
Advisory Report of Law 2915/2001 KNoB 2001 p. 1329, AP 1015/2005 HellDni
46. 1100, Law No. 5224/2003, Law No. 45,555, Law No. 6387/2004 Law No. 46,869, Law No.
5224/2003, HellDni 45.555, S. Samuel, the Appeal ed. E para. 228 d and 228 e).
In the present case, the plaintiff and already the defendant and S.K., not
party in this case, they brought an action against the already appellant and the non-art
in this case, party T. T., before the Single-Member Court of First Instance of Rhodes, on
ext. no. No. 130/2002 lawsuit, with which they ask to oblige the
defendants to pay each, to the 1st of the plaintiffs (respondent), the amount
of 2,9345.70 euros, which is twice the amount given to each as
engagement of an amount, due to the culpable default on their part
invoked contract, otherwise as positive damage, due to the invoked
of their tortious act, and at least in the alternative, due to unjustified reasons
enrichment, legitimate interest from their extrajudicial harassment, otherwise from the performance
of the lawsuit. During the discussion of the above lawsuit, on 14-10-2004, before the
Court of first instance, the appellant and the co-defendant of T. T. no
were not represented nor represented by an attorney and the case
was investigated, pursuant to articles 270 par. 1 sec. last and 271 par. 1
KPolD, as if they were also present. That Court with 166/2004
his decision, rejected the lawsuit according to its bases, the attempted ones
be based on the provisions on engagement and unjust enrichment, as
illegitimate, deemed legal the basis of the lawsuit, the one based on
tort provisions and subsequently dismissed the action as to
plaintiff S. K. and partially accepted her as the defendant-
plaintiff and obliged the appellant and his co-defendant T.T. to
pay, jointly and severally, the amount of 2,934.70 euros, while he ordered
and the personal detention of the defendants. Against this decision
complains the appellant-respondent, with his pending appeal and,
citing misapplication of law and misapprehension of evidence,
requests, according to her petitioner, that the appellant, v
the part in which the action was accepted, as to him and to be rejected in its entirety
of the lawsuit, as far as he is concerned. Based on the above content, the legal appeal,
which has been exercised legally and within the deadline, must be formally accepted
(articles 495 par. 1, 511, 513, 516 par. 1, 517 and 518 par. 1 of the Civil Code), to
disappear the defendant, in the place where the action was accepted in respect of him
appellant, that the case be then retained by this Court and
to make a retrial of the case, in the part that concerns the basis of the action
about the tort of the appellant-defendant.
With the No. ext. 130/2002 of her lawsuit, and in the part that
transferred to this Court and investigated here, the plaintiff sets forth that
the defendant falsely represented to her that he is able to intercede for her
lease to that of the mentioned leased shop, for its lease
which he has an order from his owner and that he assured her that the
lessee of said lease (second defendant) intends to her
transfer the rental equipment against the listed price,
when the lease contract is drawn up. That as a result of the above statements
and assurances paid the defendant (already appellant) the amount of
500,000 drachmas, i.e. 1,467.35 euros, and the same amount in the second
defendant, i.e. a total of 2,9345.70 euros, but the performances were
false, since there was no lease order from the owner of the lease and
neither the lease agreement nor the shop equipment was drawn up
was transferred, with the consequence of being damaged by the above amount. He doesn't ask to
oblige the defendant to pay her the above amount, as compensation and to
order his personal detention, as a means of executing the decision that will
issued. The lawsuit with the above content, to the extent transferred
before this Court, is legal and based on the provisions
of articles 297, 298, 346, 914 AK, 951 and 1047 of the Civil Code and must
further investigated in substance.
From the testimony of the witness, examined under oath before him
audience of the Court of First Instance, which is included in
at the same time as the requested minutes of the meeting, all in general and without
excluding the documents that are legally invoked and presented by the parties,
except for the affidavit numbered 12950/8-2-2007 before the
notary public of Rhodes S.P., which was drawn up after its issuance
of the appealed decision, without the presence of the respondent and is
non-existent evidence, because the summons to appear the respondent
when receiving the affidavit, it was not served on her, but on him
lawyer Ioannis Karamihalis, whose appointment as
counterclaim, according to article 96 of the Civil Code and, on the other hand, his authority as a judge
power of attorney and counter-summons ended with the defendant's extradition
final decision, which is the final one deliverable to him
procedural act, in accordance with the provision of article 143 paragraph 1 of the same
Code, in which the lawyer who appeared at the trial as
attorney of a party, becomes his party's counterperson only for the
performance in that trial, including its service
of a final decision, nor does it become a proxy and therefore irrevocable
party, to whom performance may be validly made, the signatory only
as attorney-at-law for a party to a suit and therefore the above counsel did not
was responsible for receiving documents relating to subsequent performances which
go back to the appeal trial (AP 1454/2002 HellDni 45.729, AP 197/2002 D.
2002.1201, AP 1490/2001 HellDni 44.961, AP 1076/2000 HellDni 42.394, AP
700/1999 HellDni 41.367, AP 678/1999 HellDni 41.366, AP 360/2003, AP 197/2002
published in the Law, Ef.Pir. 84/1994 HellDni 1994/1703, V. Vathrakoili
Civil Code, under article 143 no. 34), are proven, at his discretion
Court, the following: In October 2000 the plaintiff assigned to
defendant, who maintains a real estate office in the city of Rhodes,
command to intercede or indicate opportunity for it to become
possible to rent a store suitable to operate a business
restaurant in the city of Rhodes. The defendant accepted the offer and
thus a mediation contract was concluded between them, governed by the provisions of
of articles 703 et seq. AK and PD 248/1993. In the context of the above agreement,
the defendant pointed out to the plaintiff the restaurant "Z.", in the area of Kritika-
Burning, but without the conclusion of the lease. Then the
the defendant instructed the plaintiff to lease a store text at
"hundred shops" area of the city of Rhodes, at 61 S. B. street, with space
ground floor 30 sq.m., basement 30 sq.m. and with a 15 sq.m. loft, owned by X. I..
He claimed to the plaintiff that he had the order from his owner
store to lease it. But the truth is that Mr
of the shop had not given such an order to the defendant, who
was discussing the lease of the shop with the plaintiff without her knowledge
the master of it. The gentleman's son clearly testified to this fact
of the store D. X., who is familiar with the case. In energy
she proceeded the defendant, because he knew that the hired shop was
leased to the second defendant, non-party in this case T. T., who
however, he had given him a written order from 2-3-2000 to mediate for her
sale of store equipment. Thus, even before the wage is paid
to the lessor and before the intended lease agreement is entered into with
plaintiff, the defendant demanded and received from her the sum of 500,000
drachmas and already 1,467.35 euros, as "brokerage fee", as stated in
from 23-1-2001 receipt issued by himself. The plaintiff also paid to
representative of the second defendant K. O., the amount of 500,000 drachmas and already
1,467.35 euros, as a down payment for the purchase of the store's equipment,
which was agreed to be purchased by her for a price of 18,000,000
drachmas. But when the plaintiff turned to a lawyer for his pension
lease agreement and he contacted the owner of the lease,
was informed for the first time, that the defendant had no order to rent
of the store and that its owner was unaware of what had happened
with the lease promised by the defendant. The plaintiff with extrajudicial
statement addressed to the defendant invited him to return the above to her
amount and even twice as much, considering it as an engagement, which it is not
is being investigated, as the case was not transferred to this Court, as
mentioned above. However, he refused to return the above receipt
amount. The defendant denies the first two grounds of appeal
lawsuit, claiming that the amount of 500,000 drachmas and already 1,467.35 euros,
collected it from the plaintiff for services provided to her that she did not
are related to the lease referred to in the lawsuit
shop. This claim is rejected, since
aforementioned from 23-1-2001 receipt issued by himself, this amount the
collected as "brokerage fee". According to article 703 par. 1 sub. a' of the AK
one who promised a fee to someone (broker) for the intercession or the
indication of an opportunity to enter into a contract, has an obligation to pay
only if the contract is drawn up, as a consequence of this mediation or of it
hint. It follows from this provision that in order for the broker to
demand a fee must: a) have merely indicated the opportunity for the
conclusion of the contract, which happens when he informs one or both of them
two interested parties for the possibility of establishing a contract, or
to have himself mediated between them for the drawing up of the contract
who wish, b) to draw up the contract, which the principal and the
broker they had in mind and c) the drawing up of the contract took place as
consequence of the suggestion or mediation of the broker, without which it will not
was happening, i.e. there should be a causal connection between the broker's action
and the result associated with the training of the intended
contract (AP 1088, 1037 and 857/2006, published in Law). In this case, however,
of the two opportunities indicated by the defendant to the plaintiff, no
the intended lease agreement was drawn up. In fact, the behavior as
indicated opportunity to enter into a lease of the aforesaid
store of S. B. street no. 61, was false, since he was present at
plaintiff falsely asserted that he was instructed by his landlord to negotiate the
his lease, without his knowledge. In this way he collected it
above amount, as a brokerage fee before the contract is drawn up, with the result that
damages the plaintiff in the above amount. But the first one is not responsible
defendant for the amount collected by the second defendant, since the
negotiation for the purchase of the store's equipment took place between
of the plaintiff and him (the second defendant) and any liability
of this, is not investigated here. Following the above, you must, to
restitution of the plaintiff's damage, caused to her by the defendant with the
above-described culpable behavior of his, to be obliged to pay her
above amount of 1,467.35 euros, with the legal interest from the service of the lawsuit,
accepting the lawsuit in part, as essentially well-founded, as to
here investigated basis of tort. The request for personal recitation
detention as a means of executing the present, must be rejected, since o
defendant is solvent and the judgment can be enforced with the rest
means of execution. Finally, the court costs of both levels of jurisdiction
must be imposed in part against the defendant, because the action
was partially accepted (articles 178, 183 and 191 par. 2 of the Civil Code).
G I A T O Y S L O G O Y S A Y T O Y S
He judges against the opposition of the parties.
He formally and substantively accepts the appeal.
Eliminates decision 166/2004 of the Single Member Court of First Instance of Rhodes,
according to its provisions referred to in the party where the action was accepted as
to the appellant.
He holds and tries her with no. ext. 136/2002 lawsuit, according to
part relating to the basis of the appellant's tort action-
defendant.
He accepts her, in part.
It obliges the defendant to pay the plaintiff the sum of one thousand
four hundred and sixty-seven euros and thirty-five cents (1,467.35), with
legal interest from service of claim until payment.
It orders the defendant to pay part of the plaintiff's legal costs
in both degrees of jurisdiction, which he sets at four hundred (400)
euro.
It was judged, decided in Rhodes on 5-6-2007, in a secret conference and
published in his audience in Rhodes on 7-6-2007, in an extraordinary public
meeting, in the absence of the parties and their attorneys, with
present the Secretary.
The President The Secretary
Source: Law Legal Information Network (www.lawdb.intrasoftnet.com)