The intermediary himself does not have to be liable for consulting errors in every case. He can, for example, hold those responsible for product training accountable. This is pointed out by the Munich lawyer Dr. Johannes Fiala, who specialises in liability issues. The case in question involved a sales manager who, during training, described a product as “as safe as a bank investment”, but was not in a position to assess this from a technical point of view. The Higher Regional Court of Celle ruled in this respect that the intermediary can pass on the liability to the sales manager (ruling of 15 December 2005). This was because, prior to the training, the sales manager had not checked whether the investment in question actually offered bankable security. The sales manager was not even able to assess significant parts of the concept due to the omitted plausibility check. In reality, the plant was in danger of total failure. Thus, the intermediary should have been put in a position to understand this in such a way that he could also explain this to the customer. In such cases, this is indeed to be understood explicitly as the duty of the intermediary. Consequently, the trainer should, in the course of his activities, have informed the intermediary both of the risk of the investment and of the obligation to provide information. Since this had not been done, the blame fell not only on the facilitator, but above all on the trainer. The customer may hold the sales manager fully liable for the damage incurred. “Training managers are liable in such cases with all their private assets,” Fiala warns. “via normal property liability insurance or D&O insurance, this risk cannot be covered. Sales or training managers must therefore be aware that any core obligations of the intermediary may also be directed against them.” Clauses in the brokerage contract stating that there is no liability for errors during training are invalid. In such a case, it is crucial for the intermediary to carefully archive all training materials (e.g.: sales documents, PowerPoint presentations, brochure materials) and to present them when needed. “For your own survival and economic livelihood, this can be crucial,” Fiala said.
Elke Pohl
(VI Report (FinancialPerformance) 30/2006, 8)
Courtesy of www.performance-online.de.