From the series of newsletters of the DHBW (Baden-Wuerttemberg Cooperative State University) Heidenheim on the topic “Mediation Law in Practice”:
At this point, lawyer Dr. Johannes Fiala, https://www.fiala.de, lecturer for insurance law at the DHBW Heidenheim, will answer your questions,
Your questions. Questions can be asked by emailing ott@dhbw-heidenheim.de.
There is a duty to advise both in the brokerage of investments and in the brokerage of insurance by insurance brokers; since the VVG 2008, this also applies to insurers and their agents if there is a corresponding reason, i.e. if the customer recognisably requires advice. The advice is therefore the legal guiding principle and core task; on the legal guiding principle it also depends on the remuneration: After the remuneration of the broker is provided by law only in case of success, “by form” only a success fee can be agreed upon. From this follows: Who agrees e.g. a time fee by form, possesses as a rule no with success actionable claim – the success remuneration …then in case of doubt he has forfeited himself at the same time. In the case of a time-based fee, it makes more sense to have a legally secure individual agreement. The credit of a possible later commission/courtage on the time fee is dangerous. This may violate the prohibition on commission payments – corresponding criminal proceedings have already been reported repeatedly in BaFin’s annual reports. Incidentally: By form also no one can legally waive the advice; the forms to the waiver of advice thus do not lead to the discharge of liability. Here, too, it makes more sense to have a legally secure individual agreement.
Dr. Johannes Fiala
(DHBW Newsletter 02/2009)
Courtesy of www.dhbw-heidenheim.de.
