A recent ruling by the Federal Court of Justice (BGH) is causing considerable unrest in the real estate industry and massively strengthens the rights of real estate buyers. Real estate agents who fail to precisely align their digital processes with legal requirements risk losing their commission entirely. At the heart of the matter is the so-called "button solution" and the question of when an online click actually costs money.
In its decision of October 9, 2025 (Case No. I ZR 159/24), the First Civil Senate clarified fundamental questions regarding the validity of brokerage contracts in electronic commerce.The ruling is dogmatically demanding and has far-reaching consequences for practice.
The case: "Send" is not "Buy"
The legal dispute arose from a classic digital marketing process. A prospective buyer received a link to a web-based property listing from a real estate agent via email. To gain access, he had to confirm on a website that he had received the cancellation policy and then click a button. This was simply with the word "Send" labeled.
The prospective buyer later purchased the house but refused to pay the commission. Rightly so, as the Federal Court of Justice (BGH) has now confirmed. The judges in Karlsruhe clarified that the label "Send" meets the strict requirements of Section 312j Paragraph 1 of the German Civil Code (BGB). Section 3 of the German Civil Code (BGB) is not sufficient. This regulation requires that the consumer, when placing the order expressly confirms the commitment to make a payment – for example, by using the phrase "order with obligation to pay"..
The dogmatic strictness: final nullity instead of a state of limbo.
What is special about this ruling is not only the confirmation of the formal requirements, but the drastic legal consequence that the Federal Court of Justice derives from it. Contrary to the opinion of the lower court, a violation of the "button solution" does not merely lead to a pending invalidity that could be remedied by subsequent conduct..
The contract is rather permanently ineffective. The Federal Court of Justice (BGH) justifies this with the protective purpose of the regulation: Consumers should be protected from hastily entering into financial obligations on the internet.A merely pending ineffectiveness would weaken this protection.
No cure through consistent behavior
In practice, this means that a broker cannot "save" a legally invalid online contract by acting on behalf of the client and the client accepting the services.
In the case at hand, the customer had indeed shown interest after clicking the wrong button, arranged a viewing appointment, and requested further information.The Higher Regional Court still interpreted this as a tacit confirmation of the contract. The Federal Court of Justice (BGH) clearly rejected this view..
Consumers are generally unaware that the initial click was non-binding. Without this awareness, no legally binding confirmation can be seen in his subsequent behavior.. Furthermore, a cure through simply continuing would undermine the warning purpose of the law.
The solution: Explicit confirmation
If the damage is already done – i.e., the button is incorrectly labelled – the law leaves only a narrow avenue open for salvaging the commission claim. The invalid contract can be challenged pursuant to Section 141, Paragraph 1. 1 BGB to be confirmed by a new undertaking.
But be careful: The Federal Court of Justice (BGH) clarifies that this confirmation must also meet the strict transparency requirements.. To prevent circumvention, the consumer must again explicitly confirm, in compliance with the formal requirements, that he or she is entering into a payment obligation.A casual "OK" via email or phone is not enough.
No compensation either.
Particularly bitter for real estate agents: If the contractual claim fails due to incorrect button labeling, there is no "Plan B". The Federal Court of Justice (BGH) also categorically excludes claims based on unjust enrichment (compensation for work performed).. Granting the real estate agent a claim for payment in this way would undermine the punitive nature of consumer protection law..
Conclusion for buyers and real estate professionals
This ruling (Federal Court of Justice, judgment of October 9, 2025 – I ZR 159/24) marks a turning point for electronic business transactions in real estate law.
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For property buyers: If you are asked to pay after concluding an online contract, it is worth carefully examining the digital ordering process. If the "Buy" button was not clearly labeled, you may not be obligated to pay – even if the broker's services have been provided.
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For real estate agents: Immediately review your websites and real estate software. Terms like "Submit," "Confirm," or "Continue" are highly risky in the context of contract conclusions. Ensure legally compliant processes that unequivocally meet the requirements of the "button solution."
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