The Commission Clause That Almost Cost Two Buyers Their Deal

The situation

What worried Lindita most was not the paperwork itself but what it might mean for the price. She and her sister Drita, a physiotherapist and a software developer respectively, had spent nearly two months in informal conversation with Soo-jin, the owner of a small physiotherapy clinic in New Liskeard, about buying the practice when Soo-jin retired. Nothing had been signed. There had been coffee meetings, a walkthrough of the clinic, and an exchange of rough numbers, but no letter of intent and no formal offer.

Then Soo-jin, wanting to make sure she got a fair price and had proper representation, signed a listing agreement with a business broker to market the clinic for sale. The listing agreement was standard in most respects. Under an exclusive listing like this one, the broker is normally entitled to a commission on any sale that closes during the listing period itself, however the buyer was found — that part is ordinary. What was less ordinary was the holdover clause covering the period after the listing expired: it, too, entitled the broker to a commission regardless of who introduced the buyer, unless that buyer was specifically excluded in writing. A holdover tail that broad is wider than the common form, which usually catches only buyers actually introduced to the business during the listing, and it had to be read carefully in the document itself rather than assumed.

Lindita and Drita had not been excluded. They had never been mentioned to the broker at all, because Soo-jin had not thought to raise it, and the broker had no reason to know two people were already in the picture. The practical fear Lindita brought to us was simple: if the deal she and Drita had been quietly building for months now closed with a broker's commission attached, that cost would almost certainly land somewhere in the purchase price, either as a higher asking figure to cover the commission or as a direct add-on none of them had budgeted for. The business itself was valued in the $2 to $5 million range, and even a modest commission percentage on a deal that size was a meaningful sum for two first-time buyers stretching to make the numbers work.

Soo-jin had not acted in bad faith. She had simply signed a standard document without thinking through how it interacted with conversations that predated it. But the document existed now, the broker was actively marketing the clinic to other prospective buyers, and Lindita needed to know whether the months of groundwork she and Drita had put in were about to become leverage for someone who had never spoken to either of them.

What the review found

We asked Lindita to send us the listing agreement and everything documenting the prior discussions with Soo-jin — emails setting up the coffee meetings, any notes from the clinic walkthrough, and the rough numbers that had been exchanged. Timing and documentation still mattered, but not because they could settle the question on their own. Under an exclusive listing paying commission on any sale during the listing period regardless of who introduced the buyer, showing that Lindita and Drita had come to Soo-jin first would not by itself defeat the broker's claim. What actually decided it was the wording of the listing agreement, and whether Lindita and Drita could be named as an excluded buyer in writing before the deal closed.

The listing agreement's commission clause was broadly written, which is typical and not by itself improper — brokers write these clauses broadly because otherwise sellers could quietly close deals with buyers the broker had actually found and then claim they were pre-existing contacts to avoid paying commission. The clause is a legitimate protection for the broker's work. The problem here was that it made no distinction between buyers the broker had never heard of and buyers actively being marketed to, and it put the burden on Soo-jin to have excluded known prior contacts in writing at signing, which she had not done.

We reviewed whether Soo-jin could simply amend the listing agreement after the fact to add Lindita and Drita as an excluded buyer. That was possible in principle, but it required the broker's agreement, and the broker — reasonably from his own position — was not going to give up a commission on a deal that size without some assurance he was not being used to legitimize a sale he had contributed nothing to and would receive nothing from.

The document that actually controlled the outcome was not the purchase agreement Lindita and Drita hoped to sign with Soo-jin. It was the listing agreement between Soo-jin and the broker, a document Lindita and Drita were not party to and had no direct ability to amend. Any resolution had to run through Soo-jin's relationship with her broker, not around it.

What we did

1. Compiled a clear timeline of every documented contact between Lindita, Drita and Soo-jin before the listing agreement was signed, including email dates and a summary of the clinic walkthrough, because the strength of any carve-out request depended entirely on being able to show the relationship predated the broker's involvement rather than being backdated to avoid a fee. That timeline became the exhibit everything else in the negotiation referred back to.
2. Advised Soo-jin's lawyer directly that an amendment naming Lindita and Drita as excluded pre-existing buyers was the cleanest path, rather than letting the issue surface later as a dispute over whether commission was owed once a deal was signed — raising it early gave everyone room to negotiate rather than fight, and it kept Soo-jin, who had acted in good faith, out of the middle of a dispute she had not intended to create.
3. Proposed a partial commission compromise to the broker's lawyer once it became clear a full exclusion was not going to be accepted, recognizing that the broker had genuine unrecoverable time invested in marketing the clinic to other buyers even after Lindita and Drita's interest resurfaced, and that a zero-commission outcome was unlikely to be agreed to voluntarily. That realism moved the conversation from a standoff to a number.
4. Negotiated a reduced flat commission payable by Soo-jin on this specific sale, lower than the full percentage the listing agreement would otherwise have supported, in exchange for the broker formally releasing any further claim and confirming in writing that Lindita and Drita's purchase would not trigger the full contractual rate. That release was the piece that actually protected the deal going forward.
5. Built the agreed commission split into the purchase price discussion with Soo-jin's lawyer, so Lindita and Drita understood exactly how the reduced commission affected the net price rather than discovering it as a surprise adjustment at closing. Making the number visible early let them budget for it rather than absorb it as a last-minute shock, and it kept the negotiation over price and the negotiation over commission from getting tangled into a single, harder conversation.
6. Documented the exclusion and reduced-fee arrangement in a signed side letter between all three parties — Soo-jin, the broker and, for clarity, an acknowledgment from Lindita and Drita — so the arrangement could not later be characterized as informal or reversed by any one party if the relationship between any two of them soured before closing, and so a future dispute could point to a single signed document rather than competing memories of a conversation.
7. Confirmed the amended listing terms in writing before allowing the purchase agreement negotiations to proceed further, because closing a deal while a commission dispute remained unresolved would have left Lindita and Drita exposed to a claim after the fact, undermining the very certainty the side letter was meant to provide, and it meant the purchase agreement itself could finally proceed on terms nobody would need to revisit.

The outcome

The broker agreed to a reduced flat commission rather than the full percentage the listing agreement would have supported on an open-market sale, in recognition that Lindita and Drita's interest predated the listing. It was not a full exclusion — the broker had spent real time and money marketing the clinic in the weeks the listing was active, and a complete walk-away was never realistically on the table once that marketing had begun.

Soo-jin absorbed the reduced commission as a seller's cost, which was factored transparently into the final purchase price Lindita and Drita paid, rather than being sprung on them after the fact. The amount was materially lower than what a full commission at listing rates would have added to the deal, though it was more than zero, and everyone involved understood going in that this was the trade-off for resolving the dispute without months of delay or a formal claim.

The purchase closed roughly six weeks after the commission issue was resolved, once the remaining terms of the deal — inventory valuation, staff transition, and a short consulting period with Soo-jin — were finalized separately. Lindita later said the clearest lesson from the experience was realizing how much weight a single clause in someone else's contract, one she had never seen until the dispute arose, ended up having on her own purchase.

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