The “sole or open” debate is almost always settled with commercial arguments: more commitment on one side, more freedom on the other. Swiss law, however, says something far more concrete — and often at odds with what the seller believes they are signing. Here is what the Code of Obligations actually provides, article by article, before you decide.
What you sign is called a brokerage contract
The contract you enter into with an estate agency is not a “sales agreement” in the legal sense: it is a brokerage contract. Article 412 paragraph 1 of the Code of Obligations defines it as the contract by which the broker is instructed, in exchange for remuneration, “either to point out to the other party an opportunity to conclude an agreement, or to act as intermediary in the negotiation of a contract.”
Two distinct tasks, then: pointing out an opportunity, or negotiating. Everything else follows from this. And paragraph 2 sets out the point that changes everything: “the rules governing mandate are, in general, applicable to brokerage.”
Exclusivity does not lock you in
This is the direct consequence of that paragraph 2, and the most widespread misunderstanding. Since the rules governing mandate apply, Article 404 paragraph 1 also applies here: “A mandate may be revoked or renounced at any time.” At any time — regardless of the term stated in the contract.
This does not mean termination is without consequence, however. Paragraph 2 continues: “The party who revokes or renounces the contract at an inopportune time must nonetheless compensate the other for any resulting damage.” Withdrawing a property from an estate agency the day before a signing it has prepared is not the same as ending a collaboration that has produced nothing in six months.
The real question, then, is not “am I locked in?” — you are not — but “at what point does an exit become inopportune?” And that depends on what the agency has actually committed to.
When is the agency paid — and the trap in paragraph 3
Article 413 paragraph 1 is unambiguous: “The broker is entitled to remuneration as soon as the information provided or the negotiation conducted results in the conclusion of the contract.” What triggers remuneration is neither exclusivity, nor duration, nor the number of viewings: it is the causal link between the broker’s work and the sale concluded. If the sale takes place without them, they are not paid — exclusivity or not.
Paragraph 2 adds that if the contract is concluded subject to a condition precedent, remuneration is only due once the condition has been fulfilled. Useful to know when a sale depends on financing or an authorisation.
Then there is paragraph 3, the one to read before signing: “If it has been agreed that the broker’s expenses would be reimbursed, they are owed even if the deal does not go through.” In other words, an expense-reimbursement clause — photography, home staging, marketing campaign, floor plans — commits you even if the property does not sell. This is entirely lawful, and it is the clause most often skimmed over. It must be explicitly agreed: failing that, nothing is owed.
Two protections most sellers are unaware of
A broker who plays both sides loses everything. Article 415 provides that the broker loses their right to remuneration and to reimbursement of expenses if they act in the interest of the third-party contracting party in breach of their obligations, or if they secure a promise of remuneration from that party in circumstances contrary to good faith. The question “who does your broker actually work for?” therefore has a legal answer, not merely an ethical one.
Excessive remuneration can be reduced by a judge. Article 417 specifically addresses the sale of real property: where excessive remuneration has been stipulated for pointing out the opportunity to conclude a property sale or for negotiating it, “it may, at the debtor’s request, be equitably reduced by the judge.” This protection does not remove the need to discuss terms before signing — but it does exist.
Finally, if remuneration has not been specified, Article 414 applies: the applicable scale, if one exists, or, failing that, the usual rate is deemed agreed. Writing nothing therefore never means owing nothing.
What exclusivity actually buys
Once the legal framework is established, the trade-off becomes economic, and it comes down to this: exclusivity determines who takes on the risk of investing.
An agency that knows it will complete the sale commits resources upfront — professional photography, preparation of the property, a complete technical file, targeted outreach to buyers on its books, off-market presentation before any listing goes public. An agency that knows three competitors are working the same property commits none of this: it publishes a listing and waits. This is not ill will, it is arithmetic.
An open agreement, moreover, produces an effect sellers underestimate: the same property appears several times, sometimes at different prices, on the same portals. The buyer draws an immediate conclusion — this property is struggling to find a buyer — and negotiates on that basis. Multiplying channels does not multiply buyers: in Geneva, it is largely the same people who consult the same sites.
What to read before signing
Four points, in order: the term and, above all, how it renews — automatically or not; whether there is an expense-reimbursement clause and its cap, in light of Article 413 paragraph 3; the definition of what triggers remuneration, which must remain the causal link set out in Article 413 paragraph 1; and what the agency commits to doing, listed, dated, and verifiable. A sole agency agreement without written commitments in return is not a partnership: it is one-sided exclusivity.
The rest depends on your property. A rare property, for which buyers are few, has nothing to gain from being advertised everywhere and everything to lose from appearing to have been available for a long time. A standard property in a liquid segment withstands competition between agencies better.
In both cases, the starting point is the same: knowing what the property is worth before discussing who will sell it. Have your property valued, then see how we prepare a sale. If an agreement is already in place and nothing is moving, the audit of a listing that is not selling will show whether the problem is the price or the method.