Social contact responsibility in real estate
For the jurisprudence a responsibility for social contact in the real estate field is borne by the mediator who, as a professional, has the duty to protect the client’s legal sphere.
Any circumstance that constitutes a “social contact” generates obligation for the professional involved, to behave diligently towards those who trusts their professionalism with confidence. This circumstance only affects certain subjects belonging to a professional status, of whom particular duties or rules are incumbent, and may concern those such as a doctor, a teacher, a bank employee, etc.
Social contact liability generates a contractual obligation.
Social contact liability has been hypothesized and applied in some judgments even in the event of failure to fulfil obligations deriving from the typical mediation relationship.
The figure of the mediator is governed by articles 1754 and the Civil Code. A mediator is defined as “one who relates two or more parties to conclude a deal, without being tied to any of them by collaborative, dependent or representative relationships”. By virtue of social contact, in the event of a dispute, the rules that define a contract apply.
Anyone who complains that he has suffered damage (vulnus) by the mediator must demonstrate only the “contact” that led to the disagreement, while the burden of proof lies on that professional to uphold that they maintained behaviour appropriate to the circumstances.
The mediator, if they act as an agent, assumes responsibility for carrying out work in the best way, and if their behaviour causes damage to third parties, they are obliged to compensate them.
One of the mediator’s obligations is to collect correct and exhaustive information, and if they do not, this proves to be harmful to the client, and they are liable to lodge a complaint.
This is what happened to a real estate agency, sentenced to return the deposit and to compensate the damages suffered by a buyer.
The sentence that created this precedence is no. 16382 of 2009, issued by the Court of Cassation. The judge confirmed that, in the specific case, despite the absence of a contract, a qualified social contact was created in the relationship between the mediator and the client.
The deficit on the part of the real estate agency, which played the role of mediator between the buyer and the seller, was the omission of information to the buyer of the co-ownership of several subjects of the property subject to mediation.
Once this information was discovered, the buyer refused to continue with the purchase, but the agency refused to return the deposit and commission. The agency was charged with the fault of the nuanced deal precisely because of the lack of communication regarding the origin of the property.
The liability that derives from these situations is that the mediator does not take the necessary precautions to avoid damage.
The statute of limitation in the proceedings against a mediator ten years (and not the five-year term for non-contractual liability attributable to article 2043 of the civil code).
If you would like further information on the topic of social contact responsibility in real estate, please contact our lawyers here.