請問地產代理在交易過程中的口頭承諾/協議是否會觸犯法例?

Question

本人去年在拍賣行購入物業時, 基於先前巳在另一間地產代理簽下"睇樓紙",擔心會被追討,向 拍賣行查詢並表示口頭承諾會處理對方追討的佣金. 所以即時將1%的佣金支付給拍賣行, 但最後與事實不符,並推卸責任. 結果本人要再次支付佣金給該地產代理, 本人感到無奈及受騙.

Answer 1

請問地產代理在交易過程中的口頭承諾/協議是否會觸犯法例?
當然有責任(交易過程一定涉及consideration)

如果在沒有consideration的情況下，就冇
比如︰
你同你外母講，我會買一層樓給你(只是逗佢)
其實是冇法律責任

因為沒有consideration(代價)出現過
外母冇給代價

但是，相反，你同你外母講，我會買一層樓給你(你個女嫁給我)
咁就有consideration

可以告
因為個女就是consideration

另外，你所講，是涉及
不實之陳述 (Misrepresentation) (A) 欺詐性的不實陳述 (Fraudulent Misrepresentation)
1. 意義：一方明知不實，而仍作出的陳述。
2. 受害方証明對方不誠實的意圖。
3. 受害方因誤信對方不實的陳述，被引誘與對方締約時 ，受害方於知道受騙時，有權撤銷契約，並要求賠償。
Once it has become clear that a misstatement has been made it made it may turn out to be fraudulent. The three tenets of fraudulent misrepresentation were laid out in Derry V Peek (1889) 14App Cas 337. They are that statement was made either with the knowledge that itws false, or without belief in its truth, or recklessly without care as to its truth or not.

(B) 過失的不實陳述 (Negligent Misrepresentation)
　1. 意義：一方沒有合理的理由去相信是事實，仍作出的不實陳述。
2. 被告須證明，他有合理的理由，相信所作出的陳述是事實。
3. 受害方有權撤銷契約，並要求賠償。
Hedlsy Byrne v Heller (1964) AC465
A banker's reference was given to the plaintiffs, and relying on this reference they lent money to the compant who was the subject of the reference. The reference was negligently given and the compant defaulted on the loan. The defendant bank tried to rely on a disclaimer clause to avoid liability. The court however felt that there was a special relationship and the judgement led to the creation of the concept of negligent misstatement.

(C) 無意的不實陳述 (Innocent Misrepresentation)
1. 意義：一方並無故意，亦無過失，而作出的不實陳述。
2. 受害方只有權撤銷契約，不可要求賠償。

Bissett V Willkinson (1927)
A vendor sold two blocks of land called "Homestead" and " Hogan's" to purchasers for the purpose of sheep farming. The purchasers failed in their business and declined to pay the balance of the purchase moneys according to their agreement. When the vendor brought this action for the sum owed, the purchasers alleged by the way of defence and counter-claim that the vendor had "represented and warreanted that the land which was subject of the agreement had a carrying capacity of 2000 sheep if only one team were employed in the agricultural work of the said land". The meaning of the representation as alleged was that the capacity of the land during winter, with such food as could be grown by the proper use in ploughing of one team of horses regularly employed throughout the year, was 2000 sheep. Held : the vendor's statement made prior to the sale was nothing more than an expression of opinion honestly held, and the fact that it was mistaken did not entite the purchasers to rescission.

如果你咁講，
可以取法律的詢問
法律援助署熱線 (電話 : 2537 7677，傳真 2537 5948，電郵 : [e-mail])