The regional court Mosbach condemned with judgement of 15.08.07 among other things ex-Federal Minister of Defense Professor Dr. Rupert Scholz to payment of damages from folder adhesion, because he acted as guarantor for the in the meantime insolvent MSF master star fund German fortune fund. Dr. Johannes Fiala, lawyer (Munich), MBA Financial Services (Univ.), 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 sent us the judgement with its lead sentence Urteilbesprechung for publication. Excerpt from the judgement discussion: Constant BGH iurisdiction to the folder responsibility The Federal High Court (BGH) decided already by its judgement of 22.05.1980 that initiators, (also factual) managing directors, partners, designers and founders, stand in a folder liability. This group also includes such persons who create a special basis of trust through their outwardly appearing involvement: These include, for example, companies and persons who, “in view of their generally recognised and prominent professional and economic position or their capacity as professional experts, occupy a position of guarantor”. Auditors and lawyers, who are listed as experts in the prospectus context and who also make statements in this capacity, are mainly considered for this purpose. “They are expected to be professionally knowledgeable and personally reliable, with the result that the investor often attaches authoritative and decisive importance to their statements in the prospectus.” This also applies, as the BGH later stated, to cases in which the auditor is not even expressly named in the prospectus. Law professors and other expert witnesses Law professors can also claim personal trust, and thus fall into prospectus liability. They become ga-rants as professional or technical experts by making public statements with reference to an investment concept. This becomes a reason for liability through active, knowing participation in advertising measures for the fund participation offer, in particular the giving of interviews and/or the naming in the advertising flyer – i.e. only outside the prospectus. Such an outwardly appearing co-operation with the investor advertisement leads to the personal folder adhesion (LG Mosbach). Liability for pecuniary loss? In addition to rating agencies, lawyers repeatedly get caught up in such guarantor liability, which, as “advertising liability”, is regularly not included in the coverage of usual pecuniary loss liability concepts. This applies in particular to lawyers’ statements circulated by pools and distributors that software or sample contracts/concepts are “particularly liability-proof” for the intermediary. As a rule, a single liability suit leads to insolvency, which a prior glance at the credit report will reveal without further ado. Guiding principle: Law professors are liable from folder adhesion as guarantors by advertising statements with reference to concepts of closed participation. A position as initiator, (also de facto) managing director or shareholder, designer or founder, is not required for this.
(DA No. 36.A07 of 04.09.2007, p. 4)
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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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