by Johannes Fiala, lawyer
The BGH has made clear by its judgement of 07.10.2003 (Gz. III ZR 381/02) that mediators of investments are liable for damages if they make false statements. This is nothing new in and of itself. However the BGH makes clear that it is forbidden to the mediator to pass on simply the data in the product and folder documents of the initiator unchecked as information, if it does not clear at the same time (provably) that it did not examine the data. In the case at hand it concerned the security of a capital investment, which had turned out later as snow ball system. The decision affects the entire distribution of financial products, i.e. both intermediaries and advisors! Agents owe their customers only information as information, advisors however owe an evaluation in the sense of a critical examination whether a product corresponds to investor and object-fairly to the customer interest (fundamentally to this: The BOND judgement of the BGH). With this judgement I must be clear each mediator over the fact that it cannot protect itself with the view ?I do nevertheless nothing badly, I pass nevertheless only the information on of the fund initiator, the life insurance, the fund investment company, etc. ? On the contrary: The mediator must give the information given by him to the customer completely and correctly. The bare (from the mediator unchecked) passing on of selling information is sufficient, in order to come as mediators into the adhesion: Any information that is important to the investor, for example about the creditworthiness of an initiator or the safety of a capital investment, is sufficient for personal liability. Only among close friends or in the family circle a liability for advice and information can exceptionally not come into question. In the case decided, the intermediary would have had to ascertain the initiator’s creditworthiness himself: The obligations established by the BGH place the intermediary and the sales department under considerable obligations to investigate, with corresponding costs. If unchecked sales information from the initiator is passed on by the intermediary (directly or via a sales structure), the intermediary exposes himself to the risk of being liable for damages in the form of, for example, a reversal. Also credit institutes, structure selling and insurance companies are responsible, if they omit the necessary inquiries for the own selling coworkers, because for these one is to be responsible (so last LG Coburg of 02.10.2003). This becomes particularly expensive, if tax savings models in such a way specified are mediated on credit. A dissatisfied investor will always try to roll off his investment risk elegantly over the way of an incorrect or unverified information of the sales representative.
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About the author
Dr. Johannes FialaPhD, MBA, MM
Dr. Johannes Fiala has been working for more than 25 years as a lawyer and attorney with his own law firm in Munich. He is intensively involved in real estate, financial law, tax and insurance law. The numerous stages of his professional career enable him to provide his clients with comprehensive advice and to act as a lawyer in the event of disputes.
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