“The Federal High Court (BGH) decided by judgement of 10.07.2007 that the fund-financing bank is obligated of itself to the clearing-up of the customer, if it comes (partly causally) also by hidden commissions to the fact that the acquisition price is scarcely twice as high, as the value of the portion of the closed participation. The financing bank must assume then from an immoral overvorvorteilung ?, leads Dr. Johannes Fiala, attorney (Munich), MBA financial services (Univ.), MM (Univ.), examined financial and investment councellor (A.F.A.), Lehrbeauftragter for civil and Versersi-cherungsrecht (BA Heidenheim, Univ. of Cooperative Education), bank purchase man (www.fiala.de) in its judgement discussion out. Excerpt from the judgement discussion: Usury with real estates and closed participation From the supreme court iurisdiction for decades it is well-known that with (scrap) real estates a usury in the sense of § 138 BGB is present, if the purchase price lies with approximately 190% of the objective market value (see adhesion with tax savings and Erwerbermodellen, in: BuW 1997, P. 583 FF, with w.N.). And: Duty of disclosure in the case of positively known hidden internal commission If the credit institution is aware that additional commissions not shown in the prospectus as distribution costs are paid for the brokerage, there is also a duty of disclosure. This also deceives the investor as to the value of the fund unit. Incidentally, capital investment fraud within the meaning of § 264a of the German Criminal Code (StGB) also comes into question here. The decisive factor here is whether the hidden commissions were paid “out of the investor’s contribution”, for example by including them in other expenditure items (e.g. land acquisition costs). The positive knowledge of the credit institution shall be rebuttably presumed if there is institutionalised cooperation with the persons responsible for the fund prospectus. Special responsibility of the sales force Practice shows that hidden commissions are still the order of the day – but this also increases the risk of personal liability for intermediaries and sales or training managers. While intermediaries are subject to the duty of plausibility checks, sales managers are also increasingly being held liable if they fail to take appropriate account of intermediary duties in their training courses. With increasing frequency, investors and intermediaries then join forces in the event of a claim in order to bring training managers to court together. Effective insurance coverage is likely to be rare here. Guiding principle of RA Dr. Fiala: Banks owe with closed participation unsolicited a customer clearing-up, if the acquisition price is also by hidden commissions scarcely twice as high, as the value of the participation. Furthermore, the financing bank has a duty of disclosure if it is positively aware that further commissions are paid in addition to the sales costs stated in the prospectus: This also applies to payments via third parties, such as a founding partner of the fund, if these hidden commissions affect the value of the capital investment and are ultimately included in other costs for the use of funds. Guiding principles of the BGH: a) On the causality of a doorstep situation in contract negotiations of the consumer with a relative.
b) The bank financing the acquisition of a fund is, from the legal point of view of a knowledge advantage, only obliged to provide information about a commission not shown in the prospectus if a hidden commission is one of the reasons why the purchase price is almost twice as high as the value of the fund share, so that the bank must assume that the seller is taking advantage of the buyer in an immoral way (cf. Senate judgement BGHZ 168, 1, 21 para. 47). An obligation to inform exists independently of it however if the bank has positive knowledge of the fact that the investor is deceived by the folder responsible persons over the Werthaltigkeit of the fund portion bad-cunningly, by being paid from its insert over the selling costs proven in the folder further commissions.
(DA No 40A.07 of 02.10.2007, p. 5)
Courtesy ofwww.direkteranlegerschutz.de.
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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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