The Federal High Court (BGH) decided now for the first time with judgement of 18.01.07 that Anlageberberater have to clear up unasked over the fact that the portions of closed participation unities (e.g. GbR funds, kg funds) are usually not or only very limited saleable, because there is no appropriate market for it. This refers to the question of liquidability or tradability (fungibility). Thus it is called in the judgement discussion of Dr. Johannes Fiala, attorney (Munich), MBA financial services (Univ. Wales), MM (Univ.), examined financial and investment advisor (A.F.A.), lecturer for civil and insurance right (Univ. of Cooperative Education), banker (www.fiala.de) excerpt from the judgement discussion: The BGH clarified that the possibilities of the Rückverwandlung of an investment into Liquidi-tät also with the plant to the age supply plays a crucial role: The investor can, for example, change his investment objectives, become unemployed or ill. In case of doubt, an investment advisor will therefore have to clarify the risk capacity in addition to the risk appetite: In practice, investment advisors too seldom inquire about the overall asset structure and the existing hedging against risks. This can create liability, especially if the advisor lacks insurance expertise. Only if the investment advisor can assume that the resale is recognizably without significance or the risk of the lack of resaleability was clearly pointed out in the prospectus, an advisory duty can be omitted: However, the investment advisor must ensure that the investor has read and understood the prospectus. However, the vast majority of investment advisors do not have sufficient documentation for these and other disclosure obligations. In practice this means that investors are thereby offered a further possibility of reversing their investment risk, i.e. the bad development of the closed participations, at the expense of the investment adviser still after years. Investors have it thereby particularly easily, if the investment advisor did not close clean contracts and does not possess liability-reducing documentation. BGH guideline: The investment advisor is generally required to point out to the prospective investor, to whom he advises to enter into a limited partnership interest in a closed-end real estate fund, that the sale of such a share is only possible to a limited extent in the absence of a corresponding market.
(DA No 31A07 of 01.08.2007, p. 5)
Courtesy ofwww.direkteranlegerschutz.de.
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Dr. Johannes FialaPhD, 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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