The OLG Celle has condemned the leader of a structure selling personally to the payment of damages opposite an investor by valid judgement of 15.12.05. The investor is not entitled to the compensation. Attorney Dr. Johannes Fiala, Munich, (www.fiala.de) sent us in addition its judgement discussion with the Headline training adhesion of banks, insurance and selling organizations – as well as personal adhesion of selling and training leaders with the private property for publication.
Excerpts from the sentencing memorandum:
Liability from immoral damage according to § 826 BGB: For an immorality in the sense of § 826 BGB it is sufficient that the perpetrator knows the objective circumstances according to general standards. This is to prevent the perpetrator from benefiting from his own brutalized views. For example, the “unconscionable perception of one’s own advantages without regard for the legitimate interests of third parties” easily fulfils this criterion of immorality.
Constant jurisdiction of the Federal High Court (BGH): Also after a judgement of the BGH of 28.02.2005 already an “incorrect recommendation for a certain behavior” is sufficient opposite the mediator that the selling and/or training leader can come into the personal adhesion.
Repeated case law of the Higher Regional Courts (OLG): The OLG Celle also had to judge such a case in its judgement of 15.12.2005. The manager of a sales agency had presented an investment to the agents “as safe as a bank investment”. The sales manager, however, had no evidence of this in his hand, but contented himself with the remark that he had visited the supplier’s business premises. A well-founded plausibility check was missing – the sales manager could not even “judge” essential concept details. With it the sales manager would have had to inculcate however “the mediators of its structure” to make clear to each investment prospective customer that one knew nothing at all over the organization and security of the capital investment offer !
Sins of omission on the part of the training or sales manager: More than all the core duties of an intermediary, affect the sales or training manager personally. Therefore, a sales or training manager cannot plead that “he was only working for a (now insolvent) GmbH or AG”, because the liability under § 826 BGB affects this group of persons personally. The omission of the conscientious investment object examination including the relationship of the agents to the customers, can lead directly into the liability trap of § 826 BGB, which is regularly not insurable through a VSH policy.
New duties? For credit institutions, insurers and sales organisations, as well as for sales and training managers, a central question arises: Are the investment models in the respective current conception verifiably checked in a qualified manner (from a tax, legal and economic point of view), or is it a “black box” with a liability-related built-in late bloomer?
Guiding principle of the OLG Celle: The head of a structure of a commercial agent distribution is liable to the investors from § 826 BGB if he – instead of truthfully instructing the agents that they had to declare that nothing was known about the type of investment of the funds – explains to the structure employees that the investment was made with a renowned foreign bank that belonged to a deposit protection system and he reckons that this statement will be passed on to the investors.
(DA No 47B/06 of 24.11.2006, p. 5)
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PhD, 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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