Is it permissible for a broker to alternatively offer advice for a fee and for commission – and to do so by form?

From the series of newsletters of the DHBW (Baden-Wuerttemberg Cooperative State University) Heidenheim on the topic “Mediation Law in Practice”:

At this point, lawyer Dr. Johannes Fiala,, lecturer for insurance law at the DHBW Heidenheim, will answer your questions,

Your questions. Questions can be asked by emailing

There is a duty to advise both in the brokerage of investments and in the brokerage of insurance by insurance brokers; since the VVG 2008, this also applies to insurers and their agents if there is a corresponding reason, i.e. if the customer recognisably requires advice. The advice is therefore the legal guiding principle and core task; on the legal guiding principle it also depends on the remuneration: After the remuneration of the broker is provided by law only in case of success, “by form” only a success fee can be agreed upon. From this follows: Who agrees e.g. a time fee by form, possesses as a rule no with success actionable claim – the success remuneration …then in case of doubt he has forfeited himself at the same time. In the case of a time-based fee, it makes more sense to have a legally secure individual agreement. The credit of a possible later commission/courtage on the time fee is dangerous. This may violate the prohibition on commission payments – corresponding criminal proceedings have already been reported repeatedly in BaFin’s annual reports. Incidentally: By form also no one can legally waive the advice; the forms to the waiver of advice thus do not lead to the discharge of liability. Here, too, it makes more sense to have a legally secure individual agreement.

Dr. Johannes Fiala

(DHBW Newsletter 02/2009)

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Dr. Johannes Fiala Dr. Johannes Fiala

Dr. Johannes Fiala has been working for more than 25 years as a lawyer and attorney with his own law firm in Munich. He is intensively involved in real estate, financial law, tax and insurance law. The numerous stages of his professional career enable him to provide his clients with comprehensive advice and to act as a lawyer in the event of disputes.
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