So (previously allowed before 2020) implied conduct. Bad luck – you only had to call the real estate agent directly and tell him that you already know the house and the planned sale, and the matter would have been settled. Proof is easy.
But whatever. Learned a lesson – and precisely for this reason, such things have been explicitly excluded by the legislator for 4 years now.
However, the legislator measures its own actions by a different standard, because:
LOL – The seller and the agent agree on something for you without asking you. I think that’s great. I will write to someone here in the forum and we both agree that you have to pay us money. [...] For brokerage commission (by you) the agent needs a contract with YOU (!!!). Without a contract, no money. That’s always how it is in life.
... sounds like the recipe for "the state makes a contract with its broadcasting corporation that you have to pay a residence tax to the GEZ." Violates the same principle, yet it is still practiced.
But back to the topic of the original poster:
If you learn directly from a house seller you know privately about the intention to sell and want to buy the house, but it was listed through an agent, is the brokerage commission then to be paid by the buyer/seller?
The seller’s intent has been known to me for a year (seller wants to emigrate to Portugal this year), but the seller wants to hire an agent for a market-based price for valuation purposes. Whether I can buy the house depends on this price. If this is possible, does the broker have to be paid?
So both parties of the deal know each other and just want to misuse an agent as a "neutral third party" to determine a fair purchase price. That would be fraud if the agent were deceived about his role in this charade and assumed he is supposed to act in his professional capacity.
Apart from the fact that a kilo of sugar (= 336 cubes) costs less in retail than going to a café 168 times because of the free two-cube sugar packet given with coffee, I would never ever consider a real estate agent even remotely competent to appraise a value. You might as well discuss colors with the blind. What you plan to do is child’s play according to the fools’ tradition.
Just as a side note: valuation by the agent is to be viewed critically. The agent wants to get the assignment, so he tends to estimate higher. An appraiser would probably be more neutral.
With this "method" agents burn properties and collectively destroy entire markets.
There are indeed experts for real estate valuation as an independent profession, and I would advise commissioning such an expert here (together!). Some of them even work as agents at the same time (and as such spoil the already hard-earned reputation of the industry as the most incompetent of all black sheep).
If I were the seller in this concrete case, I would suggest the following two ways to the original poster as a buyer:
A. He is my favorite buyer, I want to make the deal with him at all costs, he should ultimately get the house and be my only interested party outside of competition: then we commission the expert jointly, only as appraiser; or
B. He is "only" my favorite buyer, but other interested parties should also have a chance at the deal – then I may possibly receive a higher offer from someone else for the house, he just has the "home advantage" of knowing about the opportunity first and knowing the property best: then I commission the expert alone as appraiser and agent.
The nonsense, however, of the seller and buyer secretly agreeing to misuse an agent deceived about his atypical role as an appraiser to shortchange his usual commission, is not only improper but, in my opinion, also punishable. It would thus be a fraudulently obtained service and, by thwarting the usual remuneration, cause a financial loss. I would consider §263 of the German Criminal Code (StGB) responsible here (opinion – not legal advice!) with the consequence of imprisonment of up to five years. So a costly prank.