WEBVTT
1
00:00:00.000 --> 00:00:05.000
SJC-13325, Biping Huang and others V Jing Ma and others.
2
00:00:06.720 --> 00:00:09.003
Attorney Devine, whenever you're ready.
3
00:00:14.910 --> 00:00:17.130
Good morning, members of the panel.
4
00:00:17.130 --> 00:00:18.300
My name is Charles Devine.
5
00:00:18.300 --> 00:00:22.050
I represent Biping Huang and WinPlus Realty Group,
6
00:00:22.050 --> 00:00:25.380
in a matter against E/MAX Leading Edge,
7
00:00:25.380 --> 00:00:28.380
Xinhang Sun, and Jing Ma.
8
00:00:28.380 --> 00:00:32.520
So, just a housekeeping matter before I begin.
9
00:00:32.520 --> 00:00:34.770
I noted that, looking at the docket,
10
00:00:34.770 --> 00:00:37.920
that technically, I'm not the appellate.
11
00:00:37.920 --> 00:00:40.860
Because they were here on a further appellate review
12
00:00:40.860 --> 00:00:42.300
filed by the defendant,
13
00:00:42.300 --> 00:00:45.000
but we've all treated me
14
00:00:45.000 --> 00:00:46.410
as the appellant in this proceeding.
15
00:00:46.410 --> 00:00:48.180
So, therefore I will go first,
16
00:00:48.180 --> 00:00:51.690
but I just wanna make that known.
17
00:00:51.690 --> 00:00:54.360
So, we're asking you to address the broker's remedy
18
00:00:54.360 --> 00:00:56.970
for a breach of a buyer's agency agreement.
19
00:00:56.970 --> 00:00:57.933
And essentially,
20
00:00:59.700 --> 00:01:02.403
in summary of the points I'm going to make,
21
00:01:03.810 --> 00:01:06.990
I believe that, in light of the dissent
22
00:01:06.990 --> 00:01:08.370
issued in the appeals court,
23
00:01:08.370 --> 00:01:10.830
I think we're called here to address that issue.
24
00:01:10.830 --> 00:01:15.830
And the contract as the subject of this case
25
00:01:17.610 --> 00:01:18.510
will be argued by me
26
00:01:18.510 --> 00:01:22.590
to be a valid and enforceable bilateral agreement,
27
00:01:22.590 --> 00:01:25.080
consistent with the laws
28
00:01:25.080 --> 00:01:27.660
of the commonwealth of Massachusetts
29
00:01:27.660 --> 00:01:31.050
as described by the majority decision in the appeals court,
30
00:01:31.050 --> 00:01:34.410
that expectancy damages are permitted
31
00:01:34.410 --> 00:01:37.650
and have not been challenged by any party,
32
00:01:37.650 --> 00:01:39.630
including the dissent in the appeals court.
33
00:01:39.630 --> 00:01:44.440
What was the consideration that your client paid
34
00:01:45.390 --> 00:01:50.310
to qualify as a bilateral binding agreement?
35
00:01:50.310 --> 00:01:54.903
So the consideration in this particular case is the,
36
00:01:56.850 --> 00:01:59.100
excuse me for a second while I grab my notes.
37
00:01:59.970 --> 00:02:04.970
So the agreement as set forth in Ms. Huang's affidavit
38
00:02:05.220 --> 00:02:08.160
sets forth various things that the buyer's broker would do
39
00:02:08.160 --> 00:02:10.830
in order to fulfill her obligations as a buyer's broker
40
00:02:10.830 --> 00:02:12.930
in this transaction.
41
00:02:12.930 --> 00:02:15.060
And the first thing was to use reasonable efforts
42
00:02:15.060 --> 00:02:18.450
to advise and represent the defendants, Sun and Ma,
43
00:02:18.450 --> 00:02:20.790
in their finding an acceptable home,
44
00:02:20.790 --> 00:02:22.177
to assist them in negotiating the terms and conditions-
45
00:02:22.177 --> 00:02:23.010
So, let's stop on that.
46
00:02:23.010 --> 00:02:24.963
Let's stop on that one.
47
00:02:25.860 --> 00:02:30.860
Why is that promise to do something in the future
48
00:02:30.960 --> 00:02:32.073
consideration?
49
00:02:33.300 --> 00:02:34.920
Well, it becomes consideration
50
00:02:34.920 --> 00:02:36.600
when it is performed.
51
00:02:36.600 --> 00:02:39.960
So on the day that they entered into the agreement,
52
00:02:39.960 --> 00:02:43.530
each party made a promise to do something in the future.
53
00:02:43.530 --> 00:02:46.320
That once it's performed, it becomes the consideration.
54
00:02:46.320 --> 00:02:49.500
So in this case, just like anything,
55
00:02:49.500 --> 00:02:53.913
I go to a counter and I order a sandwich for the $5.
56
00:02:55.080 --> 00:02:56.310
When you order the sandwich,
57
00:02:56.310 --> 00:02:57.690
the sandwich hasn't been made yet.
58
00:02:57.690 --> 00:02:59.280
But upon making the sandwich,
59
00:02:59.280 --> 00:03:03.210
that consideration is delivered and the monies due.
60
00:03:03.210 --> 00:03:04.043
In this particular case-
61
00:03:04.043 --> 00:03:07.500
But did you have any cases where
62
00:03:07.500 --> 00:03:11.080
the promise to use reasonable efforts by your broker
63
00:03:12.210 --> 00:03:16.140
is sufficient to constitute consideration
64
00:03:16.140 --> 00:03:19.050
to make it a bilateral agreement?
65
00:03:19.050 --> 00:03:24.050
Well, there is a case that was cited in the brief.
66
00:03:24.150 --> 00:03:27.990
And if I may, I believe it's the Sam Nichols case.
67
00:03:27.990 --> 00:03:29.550
It was the-
68
00:03:29.550 --> 00:03:32.400
That's the rescript opinion, right?
69
00:03:32.400 --> 00:03:35.190
It may have been a rescript opinion, Your Honor.
70
00:03:35.190 --> 00:03:38.877
But basically it applied the principles
71
00:03:40.380 --> 00:03:43.680
that had been set forth previously in the law
72
00:03:43.680 --> 00:03:45.060
concerning the difference between
73
00:03:45.060 --> 00:03:47.640
a unilateral promise and a bilateral agreement.
74
00:03:47.640 --> 00:03:49.170
Right, and so what I did is
75
00:03:49.170 --> 00:03:54.120
I looked at those cases that Sam Nichols relies on,
76
00:03:54.120 --> 00:03:56.670
and in each one of those cases,
77
00:03:56.670 --> 00:04:01.140
consideration was paid at the time of contracting.
78
00:04:01.140 --> 00:04:05.400
It was either a thousand dollars, or at least a dollar.
79
00:04:05.400 --> 00:04:09.990
Something went from one party to the other
80
00:04:09.990 --> 00:04:13.413
at the time of the execution of the agreement.
81
00:04:14.850 --> 00:04:17.220
So that's why I asked my first question.
82
00:04:17.220 --> 00:04:22.220
What did the broker do at the time of the agreement
83
00:04:24.240 --> 00:04:26.940
to make this a bilateral agreement?
84
00:04:26.940 --> 00:04:30.100
Well, so the broker immediately began
85
00:04:31.950 --> 00:04:35.370
bringing the buyers around to properties,
86
00:04:35.370 --> 00:04:37.650
showing them the properties, arranging for showings,
87
00:04:37.650 --> 00:04:41.490
arranging for inspections, submitting offers.
88
00:04:41.490 --> 00:04:45.104
And isn't that what happened in Tristram's Landing?
89
00:04:45.104 --> 00:04:49.290
But Tristram's Landing was a unilateral promise case.
90
00:04:49.290 --> 00:04:51.977
So Tristram's Landing case is sort of like-
91
00:04:53.449 --> 00:04:55.890
Right, so yeah, I'm just trying to figure out
92
00:04:55.890 --> 00:04:57.390
what the difference is
93
00:04:57.390 --> 00:05:01.770
between your situation and Tristram's Landing.
94
00:05:01.770 --> 00:05:04.290
I believe that Tristram's Landing case involved
95
00:05:04.290 --> 00:05:06.237
a seller's (inhales deeply).
96
00:05:08.790 --> 00:05:10.530
Can I take a half step back, judge,
97
00:05:10.530 --> 00:05:11.760
and just-
Absolutely.
98
00:05:11.760 --> 00:05:14.550
Talk a little bit about what the appeals court,
99
00:05:14.550 --> 00:05:17.170
the fact that when the appeals court was describing
100
00:05:18.300 --> 00:05:20.100
the requirements of
101
00:05:20.100 --> 00:05:24.740
a bilateral exclusive brokerage agreement,
102
00:05:24.740 --> 00:05:27.237
it was painting the seller's broker
103
00:05:27.237 --> 00:05:29.520
and a buyer's broker with the same brush.
104
00:05:29.520 --> 00:05:32.310
And I'm not saying that they shouldn't have done that,
105
00:05:32.310 --> 00:05:34.110
and I think that it probably was appropriate,
106
00:05:34.110 --> 00:05:36.900
but basically what they essentially said
107
00:05:36.900 --> 00:05:39.280
was that there are certain requirements
108
00:05:40.290 --> 00:05:42.750
for a bilateral agreement in both contexts,
109
00:05:42.750 --> 00:05:45.161
that they recite additional consideration,
110
00:05:45.161 --> 00:05:50.080
that the broker must agree to take some act
111
00:05:51.090 --> 00:05:55.020
in addition to merely selling the property,
112
00:05:55.020 --> 00:05:59.310
such as advertising, taking diligence efforts,
113
00:05:59.310 --> 00:06:00.760
and that's the Nichol's case.
114
00:06:02.977 --> 00:06:05.370
(chuckle) I read some of these old cases,
115
00:06:05.370 --> 00:06:07.650
but they're really, (chuckle)
116
00:06:07.650 --> 00:06:10.830
I mean, isn't this clear this is a contract here,
117
00:06:10.830 --> 00:06:12.153
as the majority says?
118
00:06:12.990 --> 00:06:14.970
And I don't even know if the dissent disagrees
119
00:06:14.970 --> 00:06:17.370
with it being a contract.
120
00:06:17.370 --> 00:06:21.750
They were gonna be the exclusive dealer
121
00:06:21.750 --> 00:06:23.820
and they had a bunch of obligations to do:
122
00:06:23.820 --> 00:06:25.740
Find them people,
123
00:06:25.740 --> 00:06:27.690
once they started finding them
124
00:06:27.690 --> 00:06:30.570
and taking them around and showing them all these places,
125
00:06:30.570 --> 00:06:32.673
isn't that the consideration?
126
00:06:33.540 --> 00:06:36.030
Yes, that's what I've argued in the brief,
127
00:06:36.030 --> 00:06:38.220
and that's what I have been trying inarticulately
128
00:06:38.220 --> 00:06:41.403
to convey up to this point in my argument.
129
00:06:42.300 --> 00:06:44.070
Do you read the dissent as saying there is,
130
00:06:44.070 --> 00:06:45.930
I mean the sent points to Tristram
131
00:06:45.930 --> 00:06:46.763
and some of the others,
132
00:06:46.763 --> 00:06:49.710
but I don't think it questions there's a contract here.
133
00:06:49.710 --> 00:06:51.543
It just questions whether it's-
134
00:06:52.560 --> 00:06:54.930
As I felt it through the dissent,
135
00:06:54.930 --> 00:06:57.393
and I've read it dozens of times,
136
00:06:59.100 --> 00:07:02.310
I sort of can narrow down the defense position
137
00:07:02.310 --> 00:07:03.780
to be as follows.
138
00:07:03.780 --> 00:07:06.380
And I'm happy if anybody disagrees with me
139
00:07:06.380 --> 00:07:08.400
so we can discuss it further.
140
00:07:08.400 --> 00:07:13.400
That a clear statement element is missing from the contract.
141
00:07:14.970 --> 00:07:17.970
And that although the contract might be bilateral,
142
00:07:17.970 --> 00:07:22.970
although the expectancy damages may be recoverable,
143
00:07:24.540 --> 00:07:27.270
that Judge Englander says,
144
00:07:27.270 --> 00:07:31.200
if there's not a clear statement of the fact
145
00:07:31.200 --> 00:07:34.500
that the broker would be entitled to a commission,
146
00:07:34.500 --> 00:07:36.780
even if he's not the procuring cause,
147
00:07:36.780 --> 00:07:40.650
the absence of that prevents the broker from enforcing,
148
00:07:40.650 --> 00:07:43.953
or should prevent the broker from enforcing the contract.
149
00:07:45.570 --> 00:07:49.233
Well, from obtaining the commission.
150
00:07:51.540 --> 00:07:56.340
Yes, well, but the contract requires a payment of a fee
151
00:07:56.340 --> 00:07:59.790
that would be the commission, if it's available.
152
00:07:59.790 --> 00:08:04.703
Or if it's not available, the similar amount from the buyer.
153
00:08:05.760 --> 00:08:10.470
So really, the fee is the fee that's payable
154
00:08:10.470 --> 00:08:11.820
from one or two sources.
I think that
155
00:08:11.820 --> 00:08:16.020
the dissent's objection or position, I think,
156
00:08:16.020 --> 00:08:18.460
is accurately stated as
157
00:08:19.590 --> 00:08:24.590
unless you tell the common layperson
158
00:08:24.870 --> 00:08:29.870
that they're on the hook to pay 2% of the sales price,
159
00:08:31.770 --> 00:08:36.543
regardless of whether they're involved in the sale,
160
00:08:38.490 --> 00:08:40.323
you can't collect the commission.
161
00:08:41.250 --> 00:08:43.800
That there needs to be a clear statement,
162
00:08:43.800 --> 00:08:46.170
whether orally or in writing,
163
00:08:46.170 --> 00:08:50.100
that you're on the hook as the buyer
164
00:08:50.100 --> 00:08:52.590
to pay the full amount of the commission.
165
00:08:52.590 --> 00:08:54.930
And absent that clear standing,
166
00:08:54.930 --> 00:08:57.303
under the appeals court case and curiae,
167
00:08:59.130 --> 00:09:01.803
as between the buyer and the broker,
168
00:09:02.730 --> 00:09:07.113
we might as well put the onus on the broker to be clear.
169
00:09:08.370 --> 00:09:10.950
The clarity that's required
170
00:09:10.950 --> 00:09:12.690
by the curiae case and the other cases,
171
00:09:12.690 --> 00:09:16.800
the Bump case and the Latuka case,
172
00:09:16.800 --> 00:09:19.590
the clarity described in those cases,
173
00:09:19.590 --> 00:09:22.440
the un-ambiguity that is described in those cases,
174
00:09:22.440 --> 00:09:26.850
is the fact of the exclusivity of the relationship.
175
00:09:26.850 --> 00:09:31.070
Not of the fact of specifically, buyer,
176
00:09:34.170 --> 00:09:38.835
you're gonna have to pay broker a commission
177
00:09:38.835 --> 00:09:43.350
even if you don't procure the deal.
178
00:09:43.350 --> 00:09:44.467
I don't think that that's what's required-
179
00:09:44.467 --> 00:09:47.160
Well, curiae says-
In those cases.
180
00:09:47.160 --> 00:09:49.800
A statement with enough specificity
181
00:09:49.800 --> 00:09:52.980
to alert the seller to the situation
182
00:09:52.980 --> 00:09:56.970
in which he can be liable for a broker's commission,
183
00:09:56.970 --> 00:10:00.963
even if a sale is not consummated by the broker.
184
00:10:01.920 --> 00:10:03.370
Yes, and I agree.
185
00:10:04.440 --> 00:10:06.570
My argument is that this agreement,
186
00:10:06.570 --> 00:10:10.110
as set forth in Huang affidavit,
187
00:10:10.110 --> 00:10:12.060
she says exactly that.
188
00:10:12.060 --> 00:10:13.020
She says that,
189
00:10:13.020 --> 00:10:14.580
and at the end, you owe me a commission,
190
00:10:14.580 --> 00:10:19.020
you owe me a fee that's equal to 2% of the commission
191
00:10:19.020 --> 00:10:19.920
from the seller.
192
00:10:19.920 --> 00:10:21.990
And if you can't get it, you have to pay it to me.
193
00:10:21.990 --> 00:10:24.587
So, as far as the summary judgment aspect of this case goes-
194
00:10:24.587 --> 00:10:29.490
And if the sale is not consummated by this broker.
195
00:10:29.490 --> 00:10:30.810
Yes, and I think that
196
00:10:30.810 --> 00:10:33.219
that's what the Huang agreement says.
197
00:10:33.219 --> 00:10:34.680
Is your argument that basically
198
00:10:34.680 --> 00:10:38.643
the use of the term exclusive encompasses that notice?
199
00:10:39.949 --> 00:10:43.163
No, I think in some of these cases, they suggest that.
200
00:10:46.650 --> 00:10:48.540
But in the Huang case,
201
00:10:48.540 --> 00:10:51.480
we have many terms to that agreement,
202
00:10:51.480 --> 00:10:55.530
including the specific instruction
203
00:10:55.530 --> 00:10:58.230
that the commission would be doing-
204
00:10:58.230 --> 00:10:59.700
These were oral agreements though, right?
205
00:10:59.700 --> 00:11:01.470
That's the problem?
206
00:11:01.470 --> 00:11:02.400
The problem is that they're oral agreements,
207
00:11:02.400 --> 00:11:03.393
absolutely, judge.
208
00:11:05.220 --> 00:11:06.410
That's why we're here.
209
00:11:06.410 --> 00:11:08.850
(Gaziano laughs)
It's an oral agreement.
210
00:11:08.850 --> 00:11:11.520
So, I would like to talk about
211
00:11:11.520 --> 00:11:13.170
the amicus brief for a second.
212
00:11:13.170 --> 00:11:15.483
'Cause the amicus brief pretty much describes,
213
00:11:16.470 --> 00:11:20.550
from the broker's standpoint, what's going on here.
214
00:11:20.550 --> 00:11:22.890
And they talk about the fact that
215
00:11:22.890 --> 00:11:25.800
these sort of agreements are not uncommon,
216
00:11:25.800 --> 00:11:27.150
that they've become more common
217
00:11:27.150 --> 00:11:29.703
over the last 30 years or so.
218
00:11:31.470 --> 00:11:36.470
The amicus brief says that they've been recently developed
219
00:11:37.620 --> 00:11:40.320
and recognized in the marketplace.
220
00:11:40.320 --> 00:11:43.750
That they typically involve professional services
221
00:11:44.760 --> 00:11:48.000
provided by the broker to the buyer,
222
00:11:48.000 --> 00:11:51.693
in which they enter a separate agreement, and the-
223
00:11:53.070 --> 00:11:56.160
Yeah, it's kind of interesting, 'cause,
224
00:11:56.160 --> 00:11:57.180
are all the cases
225
00:11:57.180 --> 00:11:58.980
that the majority and the Sun are fighting,
226
00:11:58.980 --> 00:12:01.023
are they all seller broker cases or?
227
00:12:01.950 --> 00:12:04.050
They are.
So I mean,
228
00:12:04.050 --> 00:12:08.343
the amicus says, look, a buyer brokers,
229
00:12:09.390 --> 00:12:10.350
particularly in a world
230
00:12:10.350 --> 00:12:11.790
where everyone can go on the internet
231
00:12:11.790 --> 00:12:14.430
and go off and do things on their own,
232
00:12:14.430 --> 00:12:19.430
basically you're not paying for them to catch a fish;
233
00:12:20.550 --> 00:12:22.877
They're basically teaching you how to fish, right?
234
00:12:22.877 --> 00:12:24.355
I wish I said that.
235
00:12:24.355 --> 00:12:27.540
They're taking you around,
236
00:12:27.540 --> 00:12:29.490
they're teaching you what the market is,
237
00:12:29.490 --> 00:12:31.710
they're showing you what these different units,
238
00:12:31.710 --> 00:12:34.350
so you understand what's a $600,000 house
239
00:12:34.350 --> 00:12:36.720
and what's a $900,000 house.
240
00:12:36.720 --> 00:12:38.010
And then if you can just go off
241
00:12:38.010 --> 00:12:40.620
and do this on your own at the last minute,
242
00:12:40.620 --> 00:12:42.420
no one's gonna do these buyer agreements.
243
00:12:42.420 --> 00:12:43.920
There seem to be some,
244
00:12:43.920 --> 00:12:46.510
particularly in an internet world,
245
00:12:46.510 --> 00:12:51.387
where anyone can sort of go off on their own at some point.
246
00:12:51.387 --> 00:12:52.650
And that's sort of a point
247
00:12:52.650 --> 00:12:54.210
that I tried to make in the brief,
248
00:12:54.210 --> 00:12:57.660
in that the broker educated the defendants
249
00:12:57.660 --> 00:13:01.350
in all these processes and procedures,
250
00:13:01.350 --> 00:13:05.283
and all the knowledge it takes in order to analyze a deal,
251
00:13:07.170 --> 00:13:11.280
submit offers and respond, and get inspections,
252
00:13:11.280 --> 00:13:13.980
and do market analyses, and all that stuff.
253
00:13:13.980 --> 00:13:17.220
So is there a difference then in your...
254
00:13:17.220 --> 00:13:20.283
Should we treat sellers the same as buyers?
255
00:13:22.080 --> 00:13:24.720
The majority and the dissent say, well,
256
00:13:24.720 --> 00:13:26.580
there's no argument to treat them differently,
257
00:13:26.580 --> 00:13:29.040
but the amici seems to suggest
258
00:13:29.040 --> 00:13:32.160
that there should be a difference in treatment.
259
00:13:32.160 --> 00:13:34.680
Oh, I read the amicus briefs the opposite.
260
00:13:34.680 --> 00:13:36.000
I think that amicus,
261
00:13:36.000 --> 00:13:38.340
they're talking about the exact same thing.
262
00:13:38.340 --> 00:13:40.710
They're talking about a bilateral agreement
263
00:13:40.710 --> 00:13:42.150
that sets forth exactly
264
00:13:42.150 --> 00:13:47.150
what the broker is offering to the party,
265
00:13:49.080 --> 00:13:50.674
the seller or the buyer,
266
00:13:50.674 --> 00:13:54.450
and the fees specifically set out in the agreement.
267
00:13:54.450 --> 00:13:58.800
And that agreement is not a commission agreement
268
00:13:58.800 --> 00:14:00.450
for the sale of a property.
269
00:14:00.450 --> 00:14:02.370
That is a agreement for the rendering
270
00:14:02.370 --> 00:14:05.877
of professional brokerage services for a fee.
271
00:14:05.877 --> 00:14:08.763
But it's much more defined in the seller agreement.
272
00:14:09.600 --> 00:14:12.090
The relationship is much more constrained
273
00:14:12.090 --> 00:14:13.540
than it is in the buyer's.
274
00:14:14.520 --> 00:14:17.400
The relationship is more constrained in the buyer's side?
275
00:14:17.400 --> 00:14:20.310
Right.
It may be, yeah.
276
00:14:20.310 --> 00:14:22.650
I think that it is more defined
277
00:14:22.650 --> 00:14:24.690
as to what the buyer's getting for their money.
278
00:14:24.690 --> 00:14:27.330
And I think that's what the party's intended to do here.
279
00:14:27.330 --> 00:14:29.550
Spell out a list of things
280
00:14:29.550 --> 00:14:33.930
that the buyer would get from the broker along the line.
281
00:14:33.930 --> 00:14:35.640
And then the affidavit
282
00:14:35.640 --> 00:14:37.973
establishes that the broker delivered.
283
00:14:37.973 --> 00:14:39.780
Not only did everything she said,
284
00:14:39.780 --> 00:14:43.530
but actually lent money to the defendants
285
00:14:43.530 --> 00:14:47.557
as a bridge loan for one of the transactions that was-
286
00:14:47.557 --> 00:14:49.710
There was an offer to lend money.
287
00:14:49.710 --> 00:14:50.543
I'm sorry?
288
00:14:50.543 --> 00:14:52.260
An offer to lend money, right?
289
00:14:53.310 --> 00:14:54.330
I'm sorry, I didn't get that.
290
00:14:54.330 --> 00:14:56.127
I thought there was an offer to lend money for-
291
00:14:56.127 --> 00:14:58.950
I think they actually delivered the check
292
00:14:58.950 --> 00:15:01.530
to the defendants.
But then the-
293
00:15:01.530 --> 00:15:03.750
But then the deal wasn't consummated,
294
00:15:03.750 --> 00:15:05.910
they bought the subject property instead,
295
00:15:05.910 --> 00:15:09.120
while those communications were pending.
296
00:15:09.120 --> 00:15:10.744
Can you tell me if I'm wrong
297
00:15:10.744 --> 00:15:15.150
with this sense of how this works?
298
00:15:15.150 --> 00:15:19.893
People who are are out looking to buy a house,
299
00:15:20.940 --> 00:15:22.200
and the person selling the house,
300
00:15:22.200 --> 00:15:24.650
they know the broker's going to get a percentage.
301
00:15:26.340 --> 00:15:30.630
The average person who's talked to a buyer's broker
302
00:15:30.630 --> 00:15:32.580
might very well think,
303
00:15:32.580 --> 00:15:34.290
wow, this is great that they're helping
304
00:15:34.290 --> 00:15:38.451
and if they actually help me find a house,
305
00:15:38.451 --> 00:15:40.170
they're gonna make some money.
306
00:15:40.170 --> 00:15:43.851
But if three weeks after the last time we talked,
307
00:15:43.851 --> 00:15:46.470
I'm talking to somebody at a dinner party
308
00:15:46.470 --> 00:15:48.150
and they tell me about a house available
309
00:15:48.150 --> 00:15:51.030
that's not even on the market, and I go buy it,
310
00:15:51.030 --> 00:15:52.500
they don't expect
311
00:15:52.500 --> 00:15:57.500
that they're going to have to pay a broker's fee.
312
00:15:57.810 --> 00:16:01.200
Now, maybe they should have to,
313
00:16:01.200 --> 00:16:04.800
but considering if that assumption's correct,
314
00:16:04.800 --> 00:16:09.360
isn't it better to have that in writing
315
00:16:09.360 --> 00:16:12.450
so that everybody knows what's going on?
316
00:16:12.450 --> 00:16:15.000
Well, fortunately or unfortunately,
317
00:16:15.000 --> 00:16:18.990
the statute does not require it to be in writing.
318
00:16:18.990 --> 00:16:22.200
In this case, so is it better to have it in writing?
319
00:16:22.200 --> 00:16:23.910
I mean, if I was setting the rules, maybe.
320
00:16:23.910 --> 00:16:26.811
I would think-
The way this world
321
00:16:26.811 --> 00:16:30.311
works right now.
322
00:16:30.311 --> 00:16:33.600
In this limited definition of the world,
323
00:16:33.600 --> 00:16:35.610
as to whether it would be a good thing, yes,
324
00:16:35.610 --> 00:16:38.760
I would agree that that would probably be a good thing.
325
00:16:38.760 --> 00:16:40.770
But we're sorta dealing with a situation here
326
00:16:40.770 --> 00:16:45.570
where the oral agreements are permitted.
327
00:16:45.570 --> 00:16:47.627
The affidavit states that the parties had agreed.
328
00:16:47.627 --> 00:16:50.883
But as between oral and writing,
329
00:16:51.720 --> 00:16:54.360
so it would be better to do writing, right?
330
00:16:54.360 --> 00:16:55.830
Sure.
But this is this world,
331
00:16:55.830 --> 00:16:57.030
so we do oral.
332
00:16:57.030 --> 00:17:00.783
So as between a clear statement that you're owed commission,
333
00:17:01.740 --> 00:17:04.170
regardless of whether or not you're involved,
334
00:17:04.170 --> 00:17:07.440
and not having that clear statement,
335
00:17:07.440 --> 00:17:11.220
why wouldn't we create a world
336
00:17:11.220 --> 00:17:14.040
where you did have to have the clear statement,
337
00:17:14.040 --> 00:17:16.323
whether orally or in writing, right?
338
00:17:18.668 --> 00:17:20.310
It's not that they can't collect
339
00:17:20.310 --> 00:17:21.780
for all the things that they've done,
340
00:17:21.780 --> 00:17:23.760
it's just that they should be clear.
341
00:17:23.760 --> 00:17:24.837
Can I answer the questions-?
342
00:17:24.837 --> 00:17:27.030
Absolutely, sorry.
In order
343
00:17:27.030 --> 00:17:29.220
from the Justice Lowy first,
344
00:17:29.220 --> 00:17:33.510
is that the affidavit says that the parties agreed
345
00:17:33.510 --> 00:17:36.300
that Huang would be the defendant's exclusive buyer's agent,
346
00:17:36.300 --> 00:17:38.040
and the defendants would refer
347
00:17:38.040 --> 00:17:41.550
all potentially acceptable real property to the plaintiffs
348
00:17:41.550 --> 00:17:43.140
and notify other real estate agents
349
00:17:43.140 --> 00:17:44.700
of the party's exclusive agency.
350
00:17:44.700 --> 00:17:45.750
So that's part of the record.
351
00:17:45.750 --> 00:17:48.000
So in this particular case,
352
00:17:48.000 --> 00:17:51.540
it was a term that was discussed, negotiated,
353
00:17:51.540 --> 00:17:53.100
and agreed to between the parties.
354
00:17:53.100 --> 00:17:56.310
So this case is all about
355
00:17:56.310 --> 00:17:59.520
just binding the parties to their agreement.
356
00:17:59.520 --> 00:18:01.383
On the clear statement rule,
357
00:18:02.286 --> 00:18:06.420
the dissent states that some of the earlier cases,
358
00:18:06.420 --> 00:18:08.100
the curiae cases, the Bump cases,
359
00:18:08.100 --> 00:18:11.163
expressed some sort of policy,
360
00:18:13.410 --> 00:18:16.500
some sort of indication that the policy
361
00:18:16.500 --> 00:18:19.290
was gonna move into that direction.
362
00:18:19.290 --> 00:18:21.450
I would disagree with the dissent,
363
00:18:21.450 --> 00:18:23.040
because I think that those cases
364
00:18:23.040 --> 00:18:26.550
are merely black letter contract law,
365
00:18:26.550 --> 00:18:31.550
that a unilateral promise is not performed
366
00:18:32.250 --> 00:18:34.740
until the delivery of the consideration.
367
00:18:34.740 --> 00:18:37.110
I think that those cases stand only for that
368
00:18:37.110 --> 00:18:38.310
and nothing more.
369
00:18:38.310 --> 00:18:41.520
Isn't the problem with the clear statement,
370
00:18:41.520 --> 00:18:44.340
I mean, if these had to be in writing,
371
00:18:44.340 --> 00:18:47.520
the clear statement obviously would be hugely advantageous
372
00:18:47.520 --> 00:18:49.530
and simplify everything.
373
00:18:49.530 --> 00:18:52.650
And then all the brokers would know to include it.
374
00:18:52.650 --> 00:18:54.330
The problem we've (chuckle) got is
375
00:18:54.330 --> 00:18:56.130
now we've got an oral world,
376
00:18:56.130 --> 00:18:57.990
which we're gonna end up litigating this thing
377
00:18:57.990 --> 00:18:59.910
in every single case, right?
Right.
378
00:18:59.910 --> 00:19:03.780
It's gonna be basically a litigation creation device.
379
00:19:03.780 --> 00:19:08.250
So, I think that the way that the law exists,
380
00:19:08.250 --> 00:19:10.140
that exclusivity has to be specifically
381
00:19:10.140 --> 00:19:11.610
and unambiguously stated,
382
00:19:11.610 --> 00:19:13.980
that the terms of the contract,
383
00:19:13.980 --> 00:19:17.820
what the broker's going to do, has to be stated,
384
00:19:17.820 --> 00:19:22.820
that the dissent argues that the clear statement rule,
385
00:19:26.700 --> 00:19:29.384
well first of all, clear statement rule
386
00:19:29.384 --> 00:19:33.630
is not only not required today in Massachusetts,
387
00:19:33.630 --> 00:19:35.130
it's not required in any state.
388
00:19:35.130 --> 00:19:39.390
And I'm saying that with 98% certainty,
389
00:19:39.390 --> 00:19:42.030
because we did our best to look at every state.
390
00:19:42.030 --> 00:19:45.708
So, the dissent seems to argue.
391
00:19:45.708 --> 00:19:47.520
You looked at of 49 states. (chuckle)
392
00:19:47.520 --> 00:19:49.620
What's that?
You looked at 49 states?
393
00:19:50.820 --> 00:19:52.320
We did. (laugh)
394
00:19:52.320 --> 00:19:57.320
So, the dissent seems to argue that
395
00:20:01.860 --> 00:20:06.860
it would be good consumer protection for this rule to exist.
396
00:20:09.630 --> 00:20:13.947
There was a portion of the dissent in which it said that
397
00:20:13.947 --> 00:20:17.968
the sophistication of the parties, or the lack thereof,
398
00:20:17.968 --> 00:20:21.900
is good grounds to consider a clear statement element.
399
00:20:21.900 --> 00:20:25.680
Well, my response to that is that might be so.
400
00:20:25.680 --> 00:20:29.580
And if it is so, that would be the job of the legislature,
401
00:20:29.580 --> 00:20:30.990
not of the courts,
402
00:20:30.990 --> 00:20:35.490
to impose that requirement on this industry.
403
00:20:35.490 --> 00:20:39.540
Especially in light of the amicus argument
404
00:20:39.540 --> 00:20:44.220
about how the market is using these agreements now,
405
00:20:44.220 --> 00:20:46.860
and how these agreements exist in written form
406
00:20:46.860 --> 00:20:48.870
that you can pull off of the website
407
00:20:48.870 --> 00:20:51.750
from the Massachusetts Association of Realtors.
408
00:20:51.750 --> 00:20:55.140
And that these agreements are fairly comprehensive.
409
00:20:55.140 --> 00:20:57.510
And it would be very, very difficult
410
00:20:57.510 --> 00:21:00.840
on the terms set forth in the Huang affidavit,
411
00:21:00.840 --> 00:21:02.010
or in looking at the terms
412
00:21:02.010 --> 00:21:04.740
in the Mass Association of Realtors contracts,
413
00:21:04.740 --> 00:21:07.290
to interpret this agreement
414
00:21:07.290 --> 00:21:10.293
as anything other than what it's represented to be,
415
00:21:11.968 --> 00:21:13.882
an agreement for a fee,
416
00:21:13.882 --> 00:21:18.660
for providing professional services to a buyer,
417
00:21:18.660 --> 00:21:21.360
who, up until these agreements existed,
418
00:21:21.360 --> 00:21:24.870
really had no representation in the marketplace,
419
00:21:24.870 --> 00:21:27.000
'cause everybody were presented
420
00:21:27.000 --> 00:21:29.163
and was paid by the seller.
421
00:21:31.350 --> 00:21:34.530
So, I notice that my time has been up for quite some time.
422
00:21:34.530 --> 00:21:36.251
If there's no further questions.
423
00:21:36.251 --> 00:21:38.017
Thank you.
Thank you.
424
00:21:39.450 --> 00:21:42.153
Okay, Attorney Leone.
Justice.
425
00:21:44.310 --> 00:21:46.140
Good morning, Attorney John Leone of Arlington,
426
00:21:46.140 --> 00:21:50.903
I'm here representing the appellees Xinhang Sun and Jing Ma.
427
00:21:55.530 --> 00:21:56.670
They are asking you
428
00:21:56.670 --> 00:21:59.910
to void so much of the appellate decision
429
00:21:59.910 --> 00:22:01.860
that struck the summary judgment,
430
00:22:01.860 --> 00:22:04.610
and allow the summary judgment or lower court to stand.
431
00:22:05.550 --> 00:22:07.410
Can I ask you a question?
Yes.
432
00:22:07.410 --> 00:22:11.730
Why isn't this the legislature's problem to fix?
433
00:22:11.730 --> 00:22:14.400
The legislature has spoken for
434
00:22:14.400 --> 00:22:18.753
specific exemption of real estate broker contracts
435
00:22:20.370 --> 00:22:23.610
as an exception to the statute of fraud.
436
00:22:23.610 --> 00:22:26.913
No, I'm talking about the problem of the clear statement.
437
00:22:27.980 --> 00:22:30.660
Why should the courts be involved
438
00:22:30.660 --> 00:22:33.030
in requiring a clear statement,
439
00:22:33.030 --> 00:22:34.980
whether in writing or orally?
440
00:22:34.980 --> 00:22:37.050
Why not just let the legislature fix it?
441
00:22:37.050 --> 00:22:42.050
They have a lot of statutes regulating brokerage agreements.
442
00:22:43.260 --> 00:22:44.130
They do, Your Honor.
443
00:22:44.130 --> 00:22:47.040
But this court has, in the line of cases
444
00:22:47.040 --> 00:22:52.040
from Tess Rivers, to Tristram's Landings, curiae Bump,
445
00:22:52.770 --> 00:22:55.380
been imposing more and more requirements
446
00:22:55.380 --> 00:22:59.790
on what a broker will have to do in order to get their fee.
447
00:22:59.790 --> 00:23:01.560
They have to have some sort of an agreement,
448
00:23:01.560 --> 00:23:03.630
they have to be one of the clear.
449
00:23:03.630 --> 00:23:08.630
And factors to make an actual transaction happen,
450
00:23:10.410 --> 00:23:12.510
they have to be one of the moving parties
451
00:23:12.510 --> 00:23:14.640
in that transaction in order to get it.
452
00:23:14.640 --> 00:23:15.473
What we are saying is-
453
00:23:15.473 --> 00:23:18.720
Your argument isn't that there wasn't a contract, right?
454
00:23:18.720 --> 00:23:20.460
No, we're not arguing there wasn't a contract.
455
00:23:20.460 --> 00:23:22.380
So given that there was a contract
456
00:23:22.380 --> 00:23:25.290
and the broker performed,
457
00:23:25.290 --> 00:23:30.290
why can't they expect damages up to and including
458
00:23:31.740 --> 00:23:34.020
the full amount of their owed commission?
459
00:23:34.020 --> 00:23:35.910
Well, we're arguing that she didn't perform,
460
00:23:35.910 --> 00:23:39.060
that she didn't perform in this sale.
461
00:23:39.060 --> 00:23:42.360
She wasn't the clear and efficient cause of the sale,
462
00:23:42.360 --> 00:23:44.012
she didn't have anything to do with the sale.
463
00:23:44.012 --> 00:23:46.500
Well that's because your client breached the exclusivity.
464
00:23:46.500 --> 00:23:48.000
Well there is past case law
465
00:23:48.000 --> 00:23:52.110
that allows the clients to void exclusive contracts
466
00:23:52.110 --> 00:23:54.150
by buying another home with another broker
467
00:23:54.150 --> 00:23:57.183
or buying a home by themselves without the broker.
468
00:23:58.680 --> 00:24:00.840
If there is a clear statement rule,
469
00:24:00.840 --> 00:24:04.230
which we are arguing there should be, for public policy
470
00:24:04.230 --> 00:24:08.256
and for the help of unsophisticated buyers,
471
00:24:08.256 --> 00:24:13.256
it would've been clear to my clients
472
00:24:13.980 --> 00:24:16.500
and to all other buyers right up front
473
00:24:16.500 --> 00:24:18.810
that no matter what they do,
474
00:24:18.810 --> 00:24:21.060
they have to pay this broker a fee.
475
00:24:21.060 --> 00:24:23.910
Whether or not this broker is entitled to the fee,
476
00:24:23.910 --> 00:24:25.290
'cause she, or didn't-
I guess that's why
477
00:24:25.290 --> 00:24:26.760
I asked you the first question,
478
00:24:26.760 --> 00:24:28.020
which is, you know,
479
00:24:28.020 --> 00:24:30.660
you're not arguing that there wasn't a contract.
480
00:24:30.660 --> 00:24:33.630
And in contract, you get all sorts of damages,
481
00:24:33.630 --> 00:24:35.460
including expectation damages.
482
00:24:35.460 --> 00:24:40.230
So if there's a contract, and there's a breach,
483
00:24:40.230 --> 00:24:44.223
why is the broker not entitled to as damages?
484
00:24:45.384 --> 00:24:47.850
She expected, which was the commission.
485
00:24:47.850 --> 00:24:48.960
Well, we're arguing that
486
00:24:48.960 --> 00:24:53.160
there wasn't a breach of that portion of the contract
487
00:24:53.160 --> 00:24:56.550
where she was a clear and efficient motivator
488
00:24:56.550 --> 00:24:57.780
in the actual sale.
489
00:24:57.780 --> 00:24:59.703
She had nothing to do with the sale.
490
00:25:02.760 --> 00:25:04.680
I mean, she's off on her own on the internet.
491
00:25:04.680 --> 00:25:07.320
That's perfectly appropriate.
492
00:25:07.320 --> 00:25:09.690
But once she says
493
00:25:09.690 --> 00:25:11.430
you're gonna be the exclusive representative,
494
00:25:11.430 --> 00:25:13.650
shouldn't she have referred this,
495
00:25:13.650 --> 00:25:16.443
hey, there's this out there, go call RE/MAX.
496
00:25:17.880 --> 00:25:20.553
By the way, does RE/MAX get both sides of the?
497
00:25:23.904 --> 00:25:26.700
It sounds the client has benefited.
498
00:25:26.700 --> 00:25:28.440
Yeah, I believe RE/MAX did get the full 5%.
499
00:25:28.440 --> 00:25:30.570
They get the full amount. (chuckle)
500
00:25:30.570 --> 00:25:35.570
So RE/MAX is the one who's manipulating this process.
501
00:25:35.610 --> 00:25:38.700
If she says, look, I have an exclusive representative,
502
00:25:38.700 --> 00:25:39.753
it's this person.
503
00:25:42.067 --> 00:25:43.260
Is RE/MAX allowed to say
504
00:25:43.260 --> 00:25:45.300
we're not dealing with you 'cause we want both sides?
505
00:25:45.300 --> 00:25:46.947
I believe that's what they did in this case.
506
00:25:46.947 --> 00:25:48.543
Can they do that, legally?
507
00:25:52.500 --> 00:25:53.367
My understanding, Your Honor, if it's not-
508
00:25:53.367 --> 00:25:54.263
Not an exclusive relationship. (chuckle)
509
00:25:54.263 --> 00:25:57.630
If it's not on MLS and not on the market yet.
510
00:25:57.630 --> 00:26:01.140
Yeah, see that's where this gets really cute.
511
00:26:01.140 --> 00:26:03.240
But it isn't that why the amicus
512
00:26:03.240 --> 00:26:07.290
has a point here that buyers,
513
00:26:07.290 --> 00:26:10.770
it's hard to buy a house now in Massachusetts.
514
00:26:10.770 --> 00:26:14.790
It takes a lotta work for someone to do all this legwork.
515
00:26:14.790 --> 00:26:17.190
Well I actually, Your Honor,
516
00:26:17.190 --> 00:26:20.100
I read into the amicus brief that they,
517
00:26:20.100 --> 00:26:23.490
and we're not disagreeing that a buyer can have a contract,
518
00:26:23.490 --> 00:26:25.950
but they should have taken the extra step
519
00:26:25.950 --> 00:26:30.124
and detailed what those expectation damages would be
520
00:26:30.124 --> 00:26:32.457
and what they would-
521
00:26:32.457 --> 00:26:35.583
The problem I have is the oral world.
522
00:26:37.320 --> 00:26:38.913
I like the clear statement of,
523
00:26:39.960 --> 00:26:42.180
I mean, again, I think Justice Wendlandt may be right,
524
00:26:42.180 --> 00:26:44.010
it's the legislature's job, not ours.
525
00:26:44.010 --> 00:26:45.270
But it would simplify things
526
00:26:45.270 --> 00:26:46.970
if you had a written contract that said this.
527
00:26:46.970 --> 00:26:49.290
It would make everything clear,
528
00:26:49.290 --> 00:26:51.030
it would handle Justice Lowy's problem
529
00:26:51.030 --> 00:26:53.130
of the innocent buyer.
530
00:26:53.130 --> 00:26:57.930
But the problem is, in an oral world, (chuckle)
531
00:26:57.930 --> 00:27:00.240
this thing is gonna be impossible to enforce.
532
00:27:00.240 --> 00:27:03.510
It's gonna be a basically he said, she said
533
00:27:03.510 --> 00:27:04.773
every single time.
534
00:27:06.480 --> 00:27:08.727
That's the problem with an oral world, Your Honor.
535
00:27:08.727 --> 00:27:09.900
I'm not disagreeing with you.
536
00:27:09.900 --> 00:27:11.040
But there's no disagreement
537
00:27:11.040 --> 00:27:15.510
about the stipulation and the exclusivity clause, right?
538
00:27:15.510 --> 00:27:17.723
There's no? Right?
539
00:27:17.723 --> 00:27:20.220
Well, the word exclusivity,
540
00:27:20.220 --> 00:27:23.250
I think the problem I have with it is,
541
00:27:23.250 --> 00:27:24.570
unsophisticated buyers,
542
00:27:24.570 --> 00:27:26.340
many of whom, such as my clients,
543
00:27:26.340 --> 00:27:28.473
who are not native English speakers,
544
00:27:31.230 --> 00:27:33.540
maybe they don't understand what exclusive means.
545
00:27:33.540 --> 00:27:34.483
Maybe they better find out!
And they're dealing with
546
00:27:34.483 --> 00:27:35.700
a million dollar home.
547
00:27:35.700 --> 00:27:37.800
Maybe they better find out.
548
00:27:37.800 --> 00:27:38.843
'Cause they're entering into a contract.
549
00:27:38.843 --> 00:27:42.990
If they aren't given a written contract up front,
550
00:27:42.990 --> 00:27:44.790
how do they even know to ask?
551
00:27:44.790 --> 00:27:45.784
How do they even know
552
00:27:45.784 --> 00:27:46.617
they should get-
Well, I mean,
553
00:27:46.617 --> 00:27:47.640
I think that argument has sailed, right?
554
00:27:47.640 --> 00:27:49.530
The statute of frauds does not apply.
555
00:27:49.530 --> 00:27:51.810
Are you even arguing that anymore?
556
00:27:51.810 --> 00:27:52.770
I'm sorry, Your Honor?
557
00:27:52.770 --> 00:27:55.800
The statute of frauds does not apply, right?
558
00:27:55.800 --> 00:27:57.720
You don't have to have a writing.
559
00:27:57.720 --> 00:27:58.890
No, you don't have to have a writing.
560
00:27:58.890 --> 00:28:00.030
I'm not saying you do.
561
00:28:00.030 --> 00:28:01.980
I mean, it's straightforward.
562
00:28:01.980 --> 00:28:05.760
But they weren't far down the road with the plaintiff.
563
00:28:05.760 --> 00:28:08.310
There were 10 homes shown, four offers made,
564
00:28:08.310 --> 00:28:10.380
and a personal loan.
565
00:28:10.380 --> 00:28:12.540
Well, they didn't actually take the loan, Your Honor,
566
00:28:12.540 --> 00:28:13.373
so I'm gonna agree with your earlier.
567
00:28:13.373 --> 00:28:15.420
Okay, but there was an offer
568
00:28:15.420 --> 00:28:16.890
for a personal loan.
They offered a loan.
569
00:28:16.890 --> 00:28:18.144
Right, so it's not like they-
570
00:28:18.144 --> 00:28:18.990
But by that same argument,
571
00:28:18.990 --> 00:28:21.120
if I go into one car dealership
572
00:28:21.120 --> 00:28:23.520
and test drive a car 18 times,
573
00:28:23.520 --> 00:28:25.980
and then I buy a car from another dealership,
574
00:28:25.980 --> 00:28:28.500
I don't expect to pay that first dealership
575
00:28:28.500 --> 00:28:30.798
a commission on the car that I bought.
576
00:28:30.798 --> 00:28:35.798
Yeah, what if you hire a car broker for you? (chuckle)
577
00:28:35.910 --> 00:28:37.440
Well, (chuckle) I'm sure he or she
578
00:28:37.440 --> 00:28:40.050
would most likely have it in writing.
579
00:28:40.050 --> 00:28:41.730
I've never hired a car broker, so I don't know.
580
00:28:41.730 --> 00:28:44.730
No, it's a little bit different, but yeah.
581
00:28:44.730 --> 00:28:46.710
Right, but it's the same concept.
582
00:28:46.710 --> 00:28:49.230
So are you saying that there is no breach of contract?
583
00:28:49.230 --> 00:28:51.573
Or are you saying there's a breach, but?
584
00:28:52.800 --> 00:28:55.350
I'm saying that they were allowed to breach the contract,
585
00:28:55.350 --> 00:28:56.640
which they did.
They were allowed-
586
00:28:56.640 --> 00:28:59.220
Without any expectation damages,
587
00:28:59.220 --> 00:29:04.220
because those damages that plaintiff Pilant is arguing for
588
00:29:04.590 --> 00:29:07.950
warrants clearly and specified set out
589
00:29:07.950 --> 00:29:10.440
in order for a home buyer such as my clients
590
00:29:10.440 --> 00:29:12.360
to fully understand and appreciate
591
00:29:12.360 --> 00:29:14.910
that they would owe her a commission
592
00:29:14.910 --> 00:29:17.310
whether or not she had anything to do with the sale.
593
00:29:17.310 --> 00:29:20.583
But what do you say the damages should be for the breach?
594
00:29:21.540 --> 00:29:24.330
Amazon gift card?
Yeah. (chuckle)
595
00:29:24.330 --> 00:29:26.854
I'm sorry, Your Honor, I don't wanna be glib, but-
596
00:29:26.854 --> 00:29:28.290
(laugh) But that means nothing.
597
00:29:28.290 --> 00:29:29.310
My client did state that,
598
00:29:29.310 --> 00:29:34.310
but if there was no damages set out
599
00:29:35.730 --> 00:29:37.020
and an expectation-
Then don't we have to
600
00:29:37.020 --> 00:29:39.720
figure out what the damages should be?
601
00:29:39.720 --> 00:29:41.730
Or you get to decide?
602
00:29:41.730 --> 00:29:43.320
You're saying they're nominal damages.
603
00:29:43.320 --> 00:29:44.153
Nominal.
604
00:29:50.352 --> 00:29:52.380
What does the contract provide for them?
605
00:29:52.380 --> 00:29:53.970
What is exclusive about it
606
00:29:53.970 --> 00:29:56.727
if you'll do all this work for me,
607
00:29:56.727 --> 00:29:58.863
and if it works out, great, but.
608
00:30:01.380 --> 00:30:03.180
Could they have another broker working too?
609
00:30:03.180 --> 00:30:05.850
Could they have three different brokers as well?
610
00:30:05.850 --> 00:30:06.683
Would that violate
611
00:30:06.683 --> 00:30:08.550
the exclusivity provision of the contract?
612
00:30:08.550 --> 00:30:09.403
It certainly sounds like it.
613
00:30:09.403 --> 00:30:11.013
It says it violated.
614
00:30:12.150 --> 00:30:15.240
You admit that it's violated, don't you?
615
00:30:15.240 --> 00:30:16.073
I'm sorry?
616
00:30:16.073 --> 00:30:17.550
You're admitting that
617
00:30:17.550 --> 00:30:22.413
the exclusivity part of the agreement was violated.
618
00:30:26.310 --> 00:30:27.143
In our opinion,
619
00:30:27.143 --> 00:30:29.943
they are able to breach that portion of the agreement.
620
00:30:31.110 --> 00:30:32.250
They can void the agreement
621
00:30:32.250 --> 00:30:34.165
by buying a home through another broker,
622
00:30:34.165 --> 00:30:35.370
and I think.
So that's
623
00:30:35.370 --> 00:30:37.110
what Justice Kafker's asking.
624
00:30:37.110 --> 00:30:41.050
So they could have had a team of buyers brokers out there
625
00:30:42.120 --> 00:30:44.460
saying all of these are exclusive-
626
00:30:44.460 --> 00:30:47.400
Unbeknownst to each other.
Right, exactly, clearly.
627
00:30:47.400 --> 00:30:49.050
And then the one that they like,
628
00:30:49.050 --> 00:30:53.280
the one that who ended up finding the house gets the money,
629
00:30:53.280 --> 00:30:55.470
and everybody else is out.
630
00:30:55.470 --> 00:30:59.100
That's simplified the argument,
631
00:30:59.100 --> 00:30:59.933
but we think-
That can't be right.
632
00:30:59.933 --> 00:31:02.820
The legal case law leading up to that
633
00:31:02.820 --> 00:31:06.347
in the various cases we cited in the dissent
634
00:31:08.190 --> 00:31:11.700
in our request for further appellate review
635
00:31:11.700 --> 00:31:15.420
validate that course of action by my clients.
636
00:31:15.420 --> 00:31:16.830
That's why we're asking this court
637
00:31:16.830 --> 00:31:21.000
to move and to make a decision
638
00:31:21.000 --> 00:31:23.700
upon what is actually a buyer's broker.
639
00:31:23.700 --> 00:31:26.400
What is enforceable, what is not enforceable.
640
00:31:26.400 --> 00:31:29.580
That could be the question, as Judge Wendlandt,
641
00:31:29.580 --> 00:31:31.064
I'm sorry, I can't pronounce your name properly.
642
00:31:31.064 --> 00:31:32.970
That's perfect. (chuckle)
Wendlandt says.
643
00:31:32.970 --> 00:31:35.610
Why not the legislature and why you?
644
00:31:35.610 --> 00:31:38.370
This court has the ability to make a reasoned decision
645
00:31:38.370 --> 00:31:40.650
based upon the case log before you,
646
00:31:40.650 --> 00:31:43.650
that you've already ruled over the past 50 years or so,
647
00:31:43.650 --> 00:31:46.200
I think going back to the first Tess Rivers,
648
00:31:46.200 --> 00:31:49.350
and move and make a rule
649
00:31:49.350 --> 00:31:51.750
that's gonna make it clear to everybody,
650
00:31:51.750 --> 00:31:55.170
sophisticated brokers, unsophisticated buyers,
651
00:31:55.170 --> 00:32:00.170
that can also not bother the arguments in the amicus brief
652
00:32:02.430 --> 00:32:04.350
that we can't void buyer brokers.
653
00:32:04.350 --> 00:32:06.750
We're not asking them to void buyer broker contracts.
654
00:32:06.750 --> 00:32:09.990
We're only asking that they, as the sophisticated party,
655
00:32:09.990 --> 00:32:12.150
the Mass Association of Realtors,
656
00:32:12.150 --> 00:32:15.630
has the ability to specify a contract,
657
00:32:15.630 --> 00:32:18.000
which they have online on their forms,
658
00:32:18.000 --> 00:32:19.440
what these damages could be.
659
00:32:19.440 --> 00:32:22.170
It's not a-
I'm sorry,
660
00:32:22.170 --> 00:32:24.687
the online form says what the damages are?
661
00:32:24.687 --> 00:32:25.612
No, they don't.
662
00:32:25.612 --> 00:32:29.130
They could change their online form,
663
00:32:29.130 --> 00:32:32.059
which all their brokers can download and hand to a client,
664
00:32:32.059 --> 00:32:35.913
and include that language where it's clear and unambiguous.
665
00:32:35.913 --> 00:32:39.480
They don't think that's what you're paying for.
666
00:32:39.480 --> 00:32:41.970
They think you're paying to become the fishermen.
667
00:32:41.970 --> 00:32:44.040
Then they should charge by the hour, Your Honor.
668
00:32:44.040 --> 00:32:46.890
Well, but see the problem, yeah, maybe.
669
00:32:46.890 --> 00:32:49.500
But then your clients don't wanna pay by the hour,
670
00:32:49.500 --> 00:32:51.870
'cause most of them don't have the money for it.
671
00:32:51.870 --> 00:32:53.823
They wanna pay out of the proceeds they have
672
00:32:53.823 --> 00:32:55.500
when they get a mortgage.
673
00:32:55.500 --> 00:32:59.347
We have to find a public policy rationale
674
00:32:59.347 --> 00:33:02.186
that's gonna satisfy everyone.
675
00:33:02.186 --> 00:33:04.980
That would be great if that existed in the world.
676
00:33:04.980 --> 00:33:07.350
Yeah, that's always un-scrambling the egg.
677
00:33:07.350 --> 00:33:09.827
But we have to get as close as we can there.
678
00:33:09.827 --> 00:33:14.827
Why isn't the right public policy legal doctrine,
679
00:33:17.370 --> 00:33:20.463
if we're gonna create one and not let the legislature do it,
680
00:33:21.900 --> 00:33:23.643
get contract damages?
681
00:33:24.690 --> 00:33:29.690
Contract damages include maybe quantum meruits,
682
00:33:30.270 --> 00:33:33.690
maybe what the equivalent hourly rate is,
683
00:33:33.690 --> 00:33:36.030
maybe expectation damages.
684
00:33:36.030 --> 00:33:37.590
And I don't know of any case,
685
00:33:37.590 --> 00:33:41.040
outside of the brokerage contract that you're arguing for,
686
00:33:41.040 --> 00:33:42.930
and the dissent seems to argue for,
687
00:33:42.930 --> 00:33:45.810
where you have to specify in the contract
688
00:33:45.810 --> 00:33:47.820
what those damages are.
689
00:33:47.820 --> 00:33:49.383
You prove it up at trial.
690
00:33:52.200 --> 00:33:53.580
I think that's the underlying problem
691
00:33:53.580 --> 00:33:55.410
with broker agreements in general.
692
00:33:55.410 --> 00:33:56.670
Yeah, why are they different?
693
00:33:56.670 --> 00:33:58.563
Why should we treat them differently?
694
00:33:59.760 --> 00:34:00.870
I'm not gonna be glib,
695
00:34:00.870 --> 00:34:04.290
but why do they get 5% of a $2 million home?
696
00:34:04.290 --> 00:34:06.240
Because they agreed to.
697
00:34:06.240 --> 00:34:08.520
It's the world that we currently live in,
698
00:34:08.520 --> 00:34:10.260
and this is where we're at.
699
00:34:10.260 --> 00:34:14.850
It's a set of rules that the brokers, and the legislators,
700
00:34:14.850 --> 00:34:16.710
and the court have worked on for years,
701
00:34:16.710 --> 00:34:19.740
and they're just not totally clear yet.
702
00:34:19.740 --> 00:34:23.460
And we're just asking for that specificity and clarity.
703
00:34:23.460 --> 00:34:26.550
You don't care which way we go, just be clear?
704
00:34:26.550 --> 00:34:29.340
Oh no.
(all laugh)
705
00:34:29.340 --> 00:34:33.540
Clarity and specificity is in my client's favor, obviously.
706
00:34:33.540 --> 00:34:36.990
Your opposing counsel said
707
00:34:36.990 --> 00:34:40.680
no other state has imposed this clear statement rule.
708
00:34:40.680 --> 00:34:44.670
Have you found any states that have a clear statement rule?
709
00:34:44.670 --> 00:34:48.830
No, and the cases that my brother relied on
710
00:34:52.092 --> 00:34:55.023
from other states, I don't think were on point either.
711
00:34:56.220 --> 00:35:00.480
I mean, when our law clerks, those hardworking people,
712
00:35:00.480 --> 00:35:05.100
when they go out looking for cases like this,
713
00:35:05.100 --> 00:35:06.930
where there's an exclusivity provision
714
00:35:06.930 --> 00:35:08.910
without a specific damage provision,
715
00:35:08.910 --> 00:35:10.710
we're not gonna find anything in the country on this?
716
00:35:10.710 --> 00:35:13.143
'Cause it seems like this would be litigated.
717
00:35:15.060 --> 00:35:16.470
'Cause he's got some sites,
718
00:35:16.470 --> 00:35:18.480
and I've read some of the things,
719
00:35:18.480 --> 00:35:21.780
and the appeals court fights over these old cases,
720
00:35:21.780 --> 00:35:25.140
but they all say they're not on point.
721
00:35:25.140 --> 00:35:27.150
Aren't we gonna find out-of-state cases on point
722
00:35:27.150 --> 00:35:28.413
going against you?
723
00:35:29.850 --> 00:35:33.060
I'm not sure you're gonna find out-of-state cases
724
00:35:33.060 --> 00:35:34.530
for or against.
725
00:35:34.530 --> 00:35:35.980
Okay, that's fair.
726
00:35:39.180 --> 00:35:41.070
Any other questions?
727
00:35:41.070 --> 00:35:41.903
All set?
Anything else?
728
00:35:41.903 --> 00:35:43.410
Thank you very much, Your Honors.