Do I have to pay the sales commission if I pull out of the sale?

We are in a similar position to the OP and realise now that we have accepted an offer (email) that is too far below the asking price to make financial sense.

However, in our case, NO money has yet changed hands - the buyer has not left a holding deposit of any kind with the agent nor have they signed any paperwork.

If we pull out - do we have to pay the agent's sales commission?

Well the accepted offer still stands and while you may pull out and nothing could ever come of it the buyer would still be within his rights to follow through on it. An accepted offer and in writing is most certainly a contract so I would imagine you need to give the buyer fair chance to purchase the property.

I have no idea on what the penalty would be if you are found to be in breach of contract considering no money has changed hands but it could be more damaging than the agents commision.

Don't agree Starfox.  

It's a few years since I studied it, but I believe a fundamental of a legal contract law is that it must must have the three ingredients of "Offer, Acceptance & Consideration" to be valid. 

The scenario described lacks "consideration" in either full or partial (deposit) payment, so the contract does not exist, as it is incomplete.

I wouldn't want to be the one to test it out. You offer the house for sale, I accept to buy house and then as soon as the price is agreed that is consideration as both parties have essentially promised to do what they intended.

At one point we were in a similar situation and the noises the sellers were making gave us a fear that gazumping was a real threat, ran it past our lawyer and it was said that the initial verbal contract is binding enough and coupled with emails it's solid. People need to be very careful with what and how they word any responses in emails.

I may be wrong and each case is different plus this is Spain so it's best to get legal advice I would imagine.

I believe your definition of "consideration" is awry - it is "monies, goods or services (something of value) paid by the purchaser, nothing else.  Until that happens there is not a binding contract. 

Your lawyer was talking poppycock, you cannot have a legally binding contract without the cash or at least a deposit being paid. 

Rubbish, no monies need to change hands only intent. There is enough online for they layman to figure that much out.

From the first link I found, albeit a UK one. In itallic.

https://www.citizensadvice.org.uk/wales/consumer/protection-for-the-consumer/consumer-contracts/consumer-contracts-what-s-meant-by-offer-acceptance-and-consideration/

What is meant by consideration?

For a consumer contract to be legally binding, as well as offer and acceptance, there must also be consideration or a price. Consideration means that both parties must do something or promise to do something which they intend to be legally binding. In contracts for goods or services, this usually means that one party promises to pay a price and the other party promises to supply goods or services.

Payment does not have to be made at the time the offer is accepted - that is, when the contract is made, but there must be a promise to pay later.

Payment may be made by cash, cheque, debit, or credit card. It may even be in kind, for example, by part exchange of goods, or by anything which is of value to the buyer or seller - for example, tokens or vouchers.

My lawyer and my wife who is a contract lawyer by trade will beg to disagree.

In our case we had definitive proof of an agreement and both parties had stated that we will start the process, getting lawyers involved and inspectors in for the mortgage. Consideration beyond a doubt.

Starfox,

If you are right, how do you explain gazumping? 

It happens a lot and is not illegal or actionable at law.

Greed explains it as well as lack of defined regulation and punishment.

It would depend where you are, in most of the UK you can gazump but in Scotland it's regulated to a point where it doesn't happen.

A solution would be to regulate the Spanish market in a sensible fashion but that will never happen.

It would also depend on exact wording of whatever correspondance there was, no doubt it would all be extremely trivial, not practical and possibly pointless. The solution is to sign a pre contract where there can be absolutely no doubt about it because while a contract has already been made it would be a very grey area. But the way things are in Spain you would be silly to lock yourself into that contract without some basic information, clauses nobody likes and more importantly if you are getting a mortgage it will need to be approved first so why throw a deposit away.

All I can really say if you find yourself in such a situation then it can be serious enough to get legal advice, maybe if more people did that then the courts will take notice.

Gazumping happens in England & Wales because offers aren't binding until contracts are exchanged. But once contracts are exchanged, even though no money has changed hands, there is no way to renege - the buyer can take the paperwork to a judge and ask for specific performance, ie deliveryof the house, and evict a remorseful seller.

btw Employment contracts are a good example of enforceable contracts without any money having changed hands.

In most of the world the commitment to buy a house need only take minutes. The estate agent can have a signed offer to sell the property in his pocket with the purchase price left blank. The buyer tells the agent he is prepared to pay x. The agent phones the seller and asks if he will accept an offer for x.  If the seller agrees, the agent fills in the  price on the agreement and hands it to the buyer, who signs the part saying he offers x to buy the property. That's it, an enforceable contract, no way out unless a loophole (suspensive  clause) written into the agreement. 

There are a lot of weasels on this site that I hope I never have to do business with!

Can anyone give a definative answer to the op's question?

I think someone answered this way back down the thread.

It all depends on the wording of the sales/listing agreement between the agent and the seller, and did a signed agreement even exist! Until we know that it's all speculation!

Cheers TGP, I suppose that the OP should know the wording of the agreement (if applicable), I was in sales for most of my working life and was never  remunerated for a failed sale.

It certainly depends on clause agreed in your contract with agency always provided the clause is transparent and not abusive. I would say a reasonable fair clause would charge you depending on how far the deal have gone, managements made...

I can't imagine anyone signing an agreement that allowed the agent to charge their commission if you pulled out of the sale. There are many reasons to pull out, one being the sale of the property you are moving to falling through, health reasons could also be a factor, as could poor service from your selling agent. As I've previously said I see no problem in the agent charging for sales costs incurred prior to you pulling out.

Placing the boot on the other foot the Spanish system would suit a seller if the buyer pulled out of the sale, I suppose that when you settle in another country you have to embrace their rules and regulations, warts and all, however had it been me I would have read the sales agreement prior to signing it, even if it meant having it translated into English.