Consultant liable: creditworthiness not checked and about it not

The case:

The BFI bank is broke. But this was already foreseeable in the industry as a rumor. “The interest rate offered by the bank was so above the capital market that insiders said long before”. They need money so badly they’ll bid almost any interest rate.

 

Verdict:

The Higher Regional Court of Thuringia, Az. 8 U 436/04 sentenced an intermediary to compensation for damages by judgement of 11.01.2005. The mediator had omitted it to clear up the investor over the fact that with this credit institute only a second-class deposit protection (90% of the first 20,000 euro are replaced by the EdW) exists (to the judgement: here click). Either credit check – or disclose non-check:

The court blamed the intermediary for not checking the creditworthiness before the investor decided to invest money and capital. At the very least, the broker should have disclosed the failure to test the “dead-safe” investment. The ruling makes it clear that courts now know how often even banks go bust. Allegation of failure to check creditworthiness: When brokering capital investments, it can generally be said that a prospectus appraisal in accordance with IDW-S4 provides a certain degree of protection: This is because the appraiser must also check the creditworthiness of the most important contractual partners (cf. www.Anlegerschutzauskunft.de ).

If no auditor’s opinion is available, special caution is required; the intermediary should keep an eye on the transparency of the company (cf. the expert check !), and above all check the annual financial statements disclosed in accordance with KapCoRili for creditworthiness, cf. § 18 KWG.

 

Accusations of half-assed lawyering:

Particular caution is advised with initiators who refer to (alleged) legal and tax opinions. Reputable providers disclose these in full text so that the intermediary has a chance to fulfil his duty to check plausibility ? and above all so that the investor can show them to his personal house advisers. In addition, it is advisable to check the creditworthiness and insurance cover of initiators and their suppliers for legal and tax opinions.

 

by Dr. Johannes Fiala

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About the author

Dr. Johannes Fiala Dr. Johannes Fiala

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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