Does a limitation of liability agreement in the brokerage contract protect against recourse claims?

A limitation of liability agreement in the brokerage contract is regularly irrelevant, because such agreements usually do not protect against unlimited recourse liability.

On the one hand, this is due to the fact that it will already be a breach of duty if the broker, as an “expert on risks”, does not inform the client that the limited liability (e.g. EUR 1 million) can only account for a fraction of the conceivable risk if the broker makes a mistake. If, for example, the application for a new private liability insurance of more than 5 million does not reach the insurer, and if uninsured damage of e.g. 3 million occurs, the limitation of liability to 1 million will burst in court like a soap bubble as pure wishful thinking.

On the other hand, the law does not allow the rule of unlimited liability of the broker to be transformed into the opposite by general terms and conditions, i.e. broker model agreements. A broker is well advised to carry out a concrete risk assessment for himself or to have it carried out in a qualified manner and in writing. More details on this issue can be found in the newly published book “Deckungslücken in der Vermögensschadenhaftpflichtversicherung”.

Dr. Johannes Fiala

(DHBW Newsletter 05/2010)

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Dr. Johannes Fiala Dr. Johannes Fiala

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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