Duty of documentation and burden of proof despite waiver of consulting documentation

The best proof in case of faulty advice is the advice documentation, because from this the gaps in the advice can be deduced. The few policyholders who receive expert advice (UN) often have a better chance of explaining the gaps in advice and possible mistakes. Conversely, however, insurance brokers and insurance agents also have far better chances of defending themselves against liability if they are accompanied by a private expert.


The plaintiff wishes for his right, i.e. justice – but there is only one verdict

A former GDR citizen with a doctorate and admission to the bar said in the same vein: “I still cannot understand why in private law the courts decide on lies of both parties”. This view is fundamental because there is hardly any official investigation in civil law. The primary and secondary burden of proof exists for the parties in civil proceedings.


OLG Dresden: No liability for damages due to lack of consulting documentation

The Dresden Higher Regional Court (OLG) (ruling of 21.02.2017, file no. 4 U 1512/16) decided that the violation of the documentation obligation does not constitute a liability for damages, but “only” results in a reversal of the burden of proof. The documentation is intended to record the consultation, and “the policyholder is to be given a second look at the reasons for the decision in favour of a particular product“.


And if the documentation does not show any advice at all?: “Then the broker must prove that, contrary to the written documentation, he has nevertheless given oral advice, as he claims “. So: First he has to present it (secondarily), and then he has to prove it.


OLG Dresden: Due to lack of consulting documentation, however, reversal of the burden of proof

The OLG writes: “The function of the documentation obligation prescribed by the legislator is primarily that the policyholder is made aware of the essential contents of the advice and is provided with the advice documentation; this enables him to check his decision in detail and to provide evidence of the content of the advice that is otherwise hardly possible. If this possibility of proof is cut off by the lack of documentation, this will affect the distribution of the burden of proof in his favour.“.


The OLG only sounds indecisive – it cannot decide on anything that has not been brought forward

Because the OLG does not deal with what follows from the fact that the UN was deprived of the legally intended possibility (according to EU regulation since 21.05.2007, the EU Mediation Directive) to make the reasons for the decision once again clear to itself (through the consultation documentation submitted to the future UN) and thus to understand it outside the oral consultation situation and to reconsider all this. On the other hand, the judgment does not even allow the plaintiff’s submissions to be recognized. The latter would have to explain what should have been mandatory in the documentation and that this would have led to a different decision by the UN. Without experts who do not have to be lawyers, such as private consultants or insurance experts, this is rarely feasible.


Those familiar with the subject know that “the EU” or “Brussels” distrusts insurance intermediaries. For customer protection, the provision that the future UN must receive the consulting documentation before signing the contract or insurance application serves the purpose of customer protection. After all, since 2008 this has also been stated in § 62 VVG. Proving this is a problem for intermediaries who are not trained in this – even if they are from the insurer.


Documentation as an obstacle to the sale of net policies

The OLG Karlsruhe (judgement of 24.03.2016, Az. 12 U 144/15) already decided: “From the point of view of the senate it would not be compatible with the sense and purpose of §§ 59 ff VVG, to guarantee sufficient information and advice to the policyholder, if the advice about the separate remuneration agreement, which is potentially particularly disadvantageous for the policyholder, was not subject to the documentation obligation (as a result without further justification also LG Saarbrücken, ibid.) This result is also supported by the fact that, according to the case law of the Federal Court of Justice, it is precisely the special documentation and advisory duties of the broker that justify a commendable interest of the broker in concluding a separate remuneration agreement (see BGH, ruling of 5 June 2014, III ZR 557/13, juris, para. 12). In the view of the Senate, however, it is then only logical to assume a duty of documentation also with regard to information and advice on this agreement”.


In such frequent cases, therefore, UNs do not owe the remuneration agreed with the broker: however, this problem usually only becomes virulent when the UN gives premature notice.


Obligations to provide advice and documentation, also in distance selling

The OLG Munich (judgement of 06.04.2017, Az. 29 U 3139/16) decided that also “online brokers” are subject to the duty of documentation and advice, § 61 VVG. In addition, the (potential or future) customer must receive the initial information verifiably at the first contact; only in text form – even in the case of online sales: the availability on a home page is not sufficient. Then you have to find suitably experienced IT experts.


Process situation up to the reversal of the burden of proof – from the perspective of the Federal Court of Justice

The Federal Court of Justice (BGH) ruled (ruling of 13 November 2014, file no. III ZR 544/13): “Failure to comply with the insurance agent’s duty of documentation under Section 61 (1) sentence 2, Section 62 VVG can lead to a relaxation of the burden of proof in favour of the policyholder up to a reversal of the burden of proof. If a required notice of material importance has not been documented, even at the outset, the insurance intermediary must in principle prove that this notice has been given”.


This means that the same care is imposed on the insurance intermediary as on architects and doctors.


Waiver of advice in General Terms and Conditions (AGB)?

It is a nice attempt by various risk carriers to place the waiver of advice somewhere in between in application forms – with a further signature of the future UN. It is still controversial whether a waiver of advice “by form” can be effective at all, i.e. whether it appears possible at all in general terms and conditions, § 307 BGB: In the literature this is hardly judged as effective towards consumers.


However, this is not important at all, if not even the form has been preserved. The legislator (Bundestag, Drucksache 16/3945) justified the limited possibility of waiving advice and documentation, according to which it is to be avoided “that a waiver by the policyholder is agreed on a form” – rather “it requires an express declaration in a separate document signed by the policyholder to be effective”.


This had already been expressly addressed earlier in a statement of reasons for the law (Bundestag, printed matter 16/1935): “In order to make the waiver consciously clear to the customer (warning function), the waiver must be made the subject of a separate agreement in a separate document, i.e. not hidden in the General Terms and Conditions, and signed by the customer”.


By the way: The time until the renunciation of consulting, also in terms of content, must of course be documented.

This should not be confused with a possibly used “mediator protocol”.


by Dr. Johannes Fiala and Dipl.-Math. Peter A. Schramm


by courtesy of

www.experten.de (published on 12.06.2019)

Link: https://www.experten.de/2019/06/12/dokumentationspflicht-und-beweislast-trotz-verzicht-auf-beratungsdokumentation/?utm_source=newsletter&utm_medium=email&utm_campaign=20190612+experts+report



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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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