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  #21  
Old 29.10.2020, 15:33
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Re: Agency is asking for a fee for not signing the contract

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But it's illegal, and they know that.(
It is not illegal. It is just not enforceable.

Two different things and not the same. What is illegal is to claim somebody does illegal stuff when in fact they don't. Be carful with such allegations.
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  #22  
Old 29.10.2020, 15:37
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Re: Agency is asking for a fee for not signing the contract

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We replied that we are not paying. Now he is insisting
Send them a print out of the Thurgau court decision and reply you are more than happy to get it settled at the Federal Court if necessary but you will also charge them for any expenses along the way by the fullest extend permitted by the law if they loose their case.
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  #23  
Old 29.10.2020, 15:43
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Re: Agency is asking for a fee for not signing the contract

Regarding the legal way:
(Full disclaimer, I'm not a legal expert. The Mieterverband should know this, I would call them again and ask more insitingly about the procedure)
  • If they are really insisting, the will send a debt-collection which shows up in your debt register
  • You would then need to make an opposition and wait for the answer
  • If they really really really insist, they will then pull you to the "Friedensrichter"
I highly doubt that they will make this effort.

Btw: The "Friedensrichter" is the first judicial instance for damage-claims up to CHF 5'000 .- (in the canton of Zurich).


My reccomendation, write them: You are truly sorry about the hassle which has been caused. But you know that this fee is not lawful, even if they put it in the application form. If they will send a debt-collection, you will do a Rechtsvorschlag (an Opposition) and go to the Friedensrichter with them, if they really want to have it.


This way, I hope they will fold. But there is no guarantee. But still, you are in the right.
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Old 29.10.2020, 15:44
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Re: Agency is asking for a fee for not signing the contract

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Good point. We should get legal insurance. But on another note, legal insurance will cost us more than this fee!
To issue a Betreibung by them would be to invest further in this transaction which you've already indicated is abandoned, and you're not willing to pay without legal or contractual basis (which you don't believe exists).

It's likely after some more "insistence" they'll soon move on to more productive uses of their time from a revenue-generation perspective.

In my humble experience, folks who "insist" are usually attempting to engage in acts of mere persuasion as they have no other basis for their requests (legal, contractual etc).

Personally I would return all invoices by registered Post with a short note indicating you believe this invoice is issued in error/without basis, and keep a copy of receipt by them. (You can sign up for this electronically in English on www.post.ch)
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  #25  
Old 29.10.2020, 15:48
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Re: Agency is asking for a fee for not signing the contract

Get legal insurance for another situation in the future, it's worth it. I received good support just by calling or sending an email with several questions that I had.
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  #26  
Old 29.10.2020, 15:48
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Re: Agency is asking for a fee for not signing the contract

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More importantly legal insurance will not cover existing disputes and might even have a cool of period for future disputes.
sure but then available next time. Otherwise every case "its not worth it"
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  #27  
Old 29.10.2020, 15:50
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Re: Agency is asking for a fee for not signing the contract

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What is illegal is to claim somebody does illegal stuff when in fact they don't. Be carful with such allegations.

I know what you mean, but rental laws are very detailed and there is no legal base for these fees.


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Send them a print out of the Thurgau court decision ...

Are there some? Can you link them? I thought up until now, this never went before a court. EDIT: I stand corrected. The Thurgauer Obergericht apparently judged more than 20 years ago, that such clauses on application forms are unlawful. But I can't find a published PDF of this decision... must have been before digitalization ^^

Last edited by TheComic; 29.10.2020 at 16:00.
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  #28  
Old 29.10.2020, 16:29
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Re: Agency is asking for a fee for not signing the contract

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I know what you mean, but rental laws are very detailed and there is no legal base for these fees.
No legal base does not mean illegal. Like I can ask you to pay CHF 10 if I post a link to the TG court decision. There is no legal base for you to pay, put it is not illegal that I ask nor is it illegal if you pay. But if you pay you cannot reclaim the money. You paid, it is gone.

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Are there some? Can you link them? I thought up until now, this never went before a court. EDIT: I stand corrected. The Thurgauer Obergericht apparently judged more than 20 years ago, that such clauses on application forms are unlawful. But I can't find a published PDF of this decision... must have been before digitalization ^^
https://www.mietrecht.ch/documents/D...mp_1_97_23.pdf

Now give me my CHF 10
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  #29  
Old 29.10.2020, 16:33
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Re: Agency is asking for a fee for not signing the contract


You're the man!


EDIT: I think it would make sense to link the court decision or this thread in the Housing-FAQ-Thread.

Last edited by TheComic; 29.10.2020 at 17:45.
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  #30  
Old 29.10.2020, 17:43
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Re: Agency is asking for a fee for not signing the contract

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No legal base does not mean illegal. Like I can ask you to pay CHF 10 if I post a link to the TG court decision. There is no legal base for you to pay, put it is not illegal that I ask nor is it illegal if you pay.



It would be illegal for you to threaten a detrimental action for which you know has no legal basis. This would be extortion.
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  #31  
Old 29.10.2020, 18:07
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Re: Agency is asking for a fee for not signing the contract

And wouldn't Art. 18 apply:

D. Interpretation of contracts, simulation

1 When assessing the form and terms of a contract, the true and common intention of the parties must be ascertained without dwelling on any inexact expressions or designations they may have used either in error or by way of disguising the true nature of the agreement.

I would say that the agency are disguising the nature of the agreement by claiming there is a contract, where the intention of the OP was only to receive the information on which to make a decision.

In any case, quoting a bunch of legal references at the agency in his letter of complaint and refusal probably helps to scare them off
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  #32  
Old 29.10.2020, 21:59
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Re: Agency is asking for a fee for not signing the contract

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it's illegal, and they know that
"Not legal" and "illegal" are different things. For those claiming that saying something is illegal is illegal, well, it maybe legal in fact. You can say someone is doing something that isn't legal, but that's not as serious as saying that something is criminal. Assuming of course that they are doing something legal.

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Good point. We should get legal insurance. But on another note, legal insurance will cost us more than this fee!
Yeah. Until you have something important to fight. Then it becomes "I wish I'd spent the money". It's not that much.

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More importantly legal insurance will not cover existing disputes and might even have a cool of period for future disputes.
Usually six months. But that makes it even more important. Buy it now. A few hundred a year. Not much.
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  #33  
Old 29.10.2020, 22:41
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Re: Agency is asking for a fee for not signing the contract

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No legal base does not mean illegal.
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"Not legal" and "illegal" are different things.


I get it now, was a translation issue on my side. Better Term I was lookin for was "unlawful".
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  #34  
Old 29.10.2020, 23:04
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Re: Agency is asking for a fee for not signing the contract

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"Not legal" and "illegal" are different things.
Are you sure??



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For those claiming that saying something is illegal is illegal, well, it maybe legal in fact.




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You can say someone is doing something that isn't legal, but that's not as serious as saying that something is criminal. Assuming of course that they are doing something legal.
"Illegal" can be criminal or not criminal. Murder is illegal and quite serious.


Unlawful and illegal are similar but different. It's not illegal for a police officer to kill someone but it can be unlawful.
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  #35  
Old 30.10.2020, 00:50
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Re: Agency is asking for a fee for not signing the contract

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I am not worried about standing my ground. But I am worried about legal costs if it goes that well. And I am surprised to hear that he can just put this to our debt register, if that's the case.
I have had a similar situation. Swiss are very polite crooks and their courts will protect them (cause their uncles were very close or some other tribal shit). Don't mess up your credit history and don't aggravate yourself by protracting this. It is a very small sum after all. Ask yourself, is it worth to buy yourself a long headache with a local crook for a 100 or is it worth to pay a 100 not to have a headache? Consider that you got away from them on a cheap.
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  #36  
Old 30.10.2020, 01:01
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Re: Agency is asking for a fee for not signing the contract

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Ask yourself, is it worth to buy yourself a long headache with a local crook for a 100 or is it worth to pay a 100 not to have a headache? Consider that you got away from them on a cheap.

No, don't! That's the reason so many agencies are doing this, cause some if not many people give in.

Now with the court decision in hands the agency will be just wasting time, which they surely don't want if they are just a little smart.
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Old 30.10.2020, 13:30
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Re: Agency is asking for a fee for not signing the contract

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Are you sure??
Yes.

Illegal acts carry a penalty or some sort of sanction.
Non legal acts may not.

All illegal acts are not legal. Not all "non legal" acts are illegal.

I can send you an invoice for this message. It's not legal, but I face no sanction under law. Neither civil nor criminal. Unless I say "I'll duff you up if you don't pay" - not legal and illegal and criminal.

I'm sure you're aware of the British government doing stuff that's not legal, the supreme court saying "no", and the government having to change what they do. But still Boris isn't fined nor in prison.
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  #38  
Old 31.10.2020, 13:03
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Re: Agency is asking for a fee for not signing the contract

Personally, I wouldn't have replied to that letter/bill in the first place, there's no reason to waste time, effort and nerves on this kind of nonsense. But that's water under the bridge.

Don't contest his claim, don't send any kind of printout. In fact don't reply at all. Here as well: there's no reason to argue about a claim that is frivolous in the first place.

If the sender can be identified without opening his letters I'd refuse accepting the next one. Return it at the Post counter unopened with a big "Refusée" written across the address area. The post will charge a miniscule fee from the sender for their increased effort, which is of course nice for you, but the important thing is showing him that you can't be bothered any longer.

Going forward it's either legal action or silence. It takes two to bicker and you simply refuse to play. And, of course, don't pay a single Rappen.
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  #39  
Old 01.11.2020, 20:35
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Re: Agency is asking for a fee for not signing the contract

The statement of the mieterverband: https://www.mieterverband.ch/mv/miet...haedigung.html
is based on this one (and unique as it seems) judicial decision of 1993: https://www.mietrecht.ch/documents/D...mp_1_97_23.pdf , that looks pretty solid.
https://www.srf.ch/sendungen/kassens...-absagegebuehr
You might to want to put the landlords nose on that verdict to signal him to be on a lost cause.
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