Discussion of the judgement of the BGH of 24.04.2007

In its ruling of 24 April 2007, the Federal Court of Justice (BGH) decided on the crediting of tax benefits in the event of the reversal of a fund financing loan in accordance with § 3 HWiG. Dr. Johannes Fiala, lawyer (Munich), MBA Financial Services (Univ.Wales), MM (Univ.), Certified Financial and Investment Advisor (A.F.A.), lecturer in civil and insurance law (Univ. of Cooperative Education), banker (www.fiala.de), has commented on the BGH ruling. Excerpt from the judgement discussion: The claim for restitution (§ 3 I S.1 HtWiG) of the investor is reduced accordingly by the benefit imputation so that the investor does not achieve a profit from the damaging event. In economic terms, the investor’s tax savings are thus treated in the same way as the fund’s distributions, and are thus credited like benefits. And: In the case of incorrect advice, an investment advisor can be accused of having invested the own funds on the capital market: The investor can additionally claim such lost interest income, §§ 249, 252 BGB. In contrast, in the relationship with the financing credit institution, payments to a bank after the revocation of the loan were made without legal grounds, and the credit institution must reimburse the investor for its benefits in the amount of at least 5% above the base interest rate. BGH Guideline: In the case of the comprehensive reversal of a loan agreement revoked pursuant to § 1 HWiG, which forms a related transaction with a financed fund share purchase within the meaning of § 9 VerbrKrG (cf. Senate judgement of 25 April 2006 – XI ZR 193/04, WM 2006, 1003, 1005 para. 12, intended for publication in BGHZ 167, 252), it is not compatible with the sense and purpose of § 3 HWiG if the investor would be better off after reversal of the credit-financed fund participation than he would have been without this participation. It is therefore equitable that vested and not otherwise realisable tax benefits reduce the claim for repayment of the borrower against the financing bank in corresponding application of the legal concept of equalisation of benefits (deviation from BGH, judgements of 14 June 2004 – II ZR 385/02, WM 2004, 1529, 1529 and of 18 October 2004 – II ZR 352/02, WM 2004, 2491, 2494). June 2004 – II ZR 385/02, WM 2004, 1527, 1529, of 18 October 2004 – II ZR 352/02, WM 2004, 2491, 2494 and of 31 January 2005 – II ZR 200/03, WM 2005, 547, 548).
(DA No 30A.07 of 24.07.2007, p. 6)
Courtesy ofwww.direkteranlegerschutz.de.

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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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