Gross negligence on the part of the investor leads to the application of a 3-year limitation period
Since the reform of the law of obligations, with effect from 01.01.2002, it is again and again controversial, after which periods the Verjährung of adhesion claims is aligned. Now the regional court Mannheim (Az. 8 O 353/06) by judgement of 07.03.2007 wrote an investor into the master book that its rough negligence consists of not having read the handed over and acknowledged issue folder: Therefore the investor could not separate also from its participation drawn 1996 to loads of the plant mediator, by it maintained only 2006 on the connected loss risks to have become attentive. RA Dipl.-Jurist Keppel successfully fought for the financial service provider the positive judgement. It comments the legal situation, as follows: “The plaintiff took the deplored investment consultant because of alleged wrong consultation with the recommendation of a capital investment in the year 1996 in requirement. The regional court rejected the complaint raised at the end of of 2006 with reference to the Verjährung if necessary existing requirements. Prior to the reform of the law of obligations, claims arising from a positive breach of contract in an investment advisory agreement were subject to a limitation period of 30 years. According to the transitional provision of Art. 229 § 6 EGBGB (Introductory Act to the German Civil Code), the limitation period was reduced to three years as of 1 January 2002. In principle, the limitation period begins with the accrual of the claim. According to the established case law of the Federal Court of Justice (BGH), an investor who has acquired a capital investment that is disadvantageous to him on the basis of an erroneous recommendation is usually already injured by its acquisition (BGH NJW 2005, 1597). According to recent BGH case law, the commencement of the limitation period depends on the fact that the creditor became aware of the circumstances giving rise to the claim or should have become aware without gross negligence (§ 199 para. 1 no. 2 BGB). In the present case the risks of the transacted investment were specified in the issue folder. The plaintiff had confirmed its receipt expressly in writing in its accession explanation. In such a case the ignorance is to be led back however to rough negligence of the plaintiff. Either it received the issue folder and did not read or the receipt of the folder confirmed and on a delivery nevertheless not insisted and itself thereby the appropriate information possibility deprived, both is to be regarded as roughly negligent i.S.d. § 199 exp. 1 No. 2 BGB.” Status: 13.03.2007
(experten report 9 4/2007, 2)
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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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