Liability for advice

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Consulting liability is the liability of the consultant for incorrect advice of a consulting contract .

General

Consultants ( persons obliged to provide information) are companies or natural persons who provide the person advised with information , advice or recommendations from a consulting contract. Employees with advisory tasks (such as bank employees) commit their employer as vicarious agents under Section 278 (1) BGB , to whom the advisory liability is to be assigned. Liability for advice is primarily intended to protect the investor / customer / patient / consumer advised . This protection is guaranteed by the obligation to provide information, advice, recommendations and, if necessary, warnings.

Advisory liability can result from the following important advisory contracts: investment advice , medical advice , career advice , life advice , psychological advice , legal advice , travel advice , debt advice , tax advice or business advice .

In particular, medical liability and banking law were significantly shaped by laws and the case law of the BGH .

  • The patient rights law of February 2013 deals in §§ 630a to 630h BGB with the doctor's obligations resulting from the medical treatment contract and the specialty of medical liability as evidence. The main points of contact for liability remain the medical error in treatment and inadequate medical information .
  • In order to protect bank customers, the Securities Trading Act (WpHG) provides for a number of standards that securities service companies must comply with. It contains extensive behavioral obligations for these companies, for example in Section 63 (1) WpHG, the obligation to provide careful and conscientious advice based on expert knowledge and free of conflict of interests. However, the provisions of the WpHG do not constitute an independent basis for the customer's claims against the bank in the event of their infringement by the advisor. The provisions of public law supervisory law ( Sections 63 et seq. WpHG) are therefore not of any independent significance in terms of compensation law beyond the civil law disclosure and advisory obligations. However, they specify performance and consideration obligations according to § 241 Paragraph 1 and 2 BGB.

Consulting contract

Legal counseling contract is a service contract with agency character ( §§ 611 and 675 BGB). The informal consulting contract is usually created between the advisor and the person being advised through conclusive action , so it does not have to be express or even in writing. According to the established case law of the BGH, an advisory contract is concluded when an investor approaches a credit institution for advice on investing a sum of money. The offer contained therein to conclude a counseling contract is tacitly accepted when the counseling interview is started. This also applies to other consulting contracts.

Wrong or bad advice

Regardless of the subject matter of the consulting contract, the prerequisite for consulting liability on the part of the consultant is, in addition to a consulting contract, a consulting error resulting from poor or incorrect advice. What matters is where the threshold of bad or wrong advice begins. If the court and a lawyer have different legal views during a legal dispute , this does not in itself constitute evidence of incorrect advice by the lawyer. Bad or incorrect advice can only be assumed if the duty to provide information is violated and the person being advised has suffered damage as a result. It therefore depends on the causality , for example if the acquisition of the capital investment is the cause of the subsequent damage due to incorrect information, because the investment decision made without the necessary clarification was influenced by the deficiencies in the incorrect clarification. A breach of duty exists when individual obligations are violated (e.g. lack of knowledge about the person being advised, poor knowledge of products, failure to observe the duty to provide information and warnings). Bad or wrong advice is usually given when the advisor has violated the principles of truth , clarity and completeness of the advice. If the advisory bank cannot conclusively assess the risks, it must not pretend that it is in the know, but must point out the lack of specialist knowledge.

In terms of supervisory law, banks have given incorrect advice if they do not meet the standards of the WpHG. According to Section 63 (6) WpHG, all investment information, including advertising communications, must be honest, clear and not misleading. The information requirements of Section 63 (7) WpHG in conjunction with Section 3 WpDVerOV and the record-keeping requirement in Section 34 (2a) WpHG (now directly regulated by EU law) do not change the general freedom of form of a banking contract. Finally, in Section 63 (10) of the WpHG, banks are required to obtain information from customers about their knowledge and experience with regard to transactions with certain types of financial instruments in order to be able to assess the appropriateness of the financial instruments for customers. The appropriateness is assessed according to whether the customer has the necessary knowledge and experience to be able to assess the risks in connection with the type of financial instruments. If, based on the information received, a bank comes to the conclusion that the financial instrument requested by the customer is not appropriate for the customer, it must inform the customer accordingly. For this purpose, the banks create customer-related risk classes to which they assign every customer willing to invest.

liability

The liability resulting from the breach of information obligations arises from law, contract and case law.

By virtue of law

The question of whether the law of the service contract or the contract for work is to be applied to the concluded consulting contract is essential for the consultant's possible liability . The service contract Advised in case of a (culpable) can poor performance only damages request but must accept for the fee only to get a faulty consulting services. In the case of contracts for work and services, however, the consultant has to be fully responsible for the achievement of the consulting objective and has to continue to improve until it is successful ( §§ 633 and 635 BGB), otherwise he does not receive any fees ( § 644 (1) BGB).

The directory assistance or counseling is compulsory for contractual duty during unpaid order ( § 662 BGB) and the pecuniary agency agreement ( § 675 para. 1 BGB). According to Section 675 (2) of the German Civil Code (BGB), wrong advice only obliges you to pay damages if it violates a contractual or pre-contractual obligation or if it represents an illegal act .

Then the consultant is liable from the consulting contract according to § 280 Paragraph 1 Clause 1 BGB because he has violated a contractual obligation. According to Section 280, Paragraph 1, Sentence 2 of the German Civil Code, the consultant must prove that he is not responsible for a breach of duty. The obligation to represent includes both intent and negligence ( § 276 BGB). The advisor has to prove that neither degree of fault is present. As a result , the damage actually incurred must be reimbursed in accordance with Section 249 (1) BGB. Thereafter, the injured party is to be presented as if he had received correct information. According to established case law of the Federal Court of Justice, the benefits to be offset against the damage claim of an injured party also include taxes that the injured party has saved as a result of the damage. The calculation of the compensation is based on the basic idea of ​​compensation of benefits under compensation law.

Since tort law does not protect assets, but advice errors only lead to financial loss, tortious liability can only be considered in exceptional cases.

Contract liability

If the advisory error occurs before the conclusion of the advisory contract, advisory liability from Section 311 (2) BGB in conjunction with Section 241 (2) BGB comes into consideration. If, on the other hand, the defect is located after the contract has been concluded, Section 280 of the BGB applies. As a rule, a consulting error after conclusion of the consulting contract is likely to represent.

According to Section 19.1 of the General Terms and Conditions of Savings Banks, credit institutions are liable for their own fault as well as the fault of persons whom they use to fulfill their obligations to the customer. It regulates for all banking transactions that the credit institutions are responsible for their own fault. There is already fault liability if the bank has not only acted objectively illegally, but also negligently. This liability can be excluded in the individual contract, provided this is not immoral . The legal basis for this in Germany is § 305 BGB.

Liability according to case law

The jurisprudence on consulting liability is clearly aimed at protecting the consumer. According to the established case law of the BGH, liability from a (tacitly concluded) advisory contract must always be affirmed if information is given that is clearly of considerable importance for the person being advised and that the person concerned wants to make the basis of essential decisions or measures. This applies in particular if the consultant is competent to provide the information or if he has his own economic interest. The lack of other contractual relationships does not exclude such a liability-based information contract; this comes about when the information is given. The type and scope of liability for advice depend on the circumstances of the individual case. Advisory liability exists for all advisors whom customers “typically place their trust in”. The advisor must conduct his own investigations and may not accept and pass on information from third parties without checking. He has to do this all the more if he even gives the impression that the object he is offering has been checked by him. The presumption of correct behavior , according to which the advisor has to prove that the investor would have acquired the investment even with correct information, i.e. that he would have ignored the failure to provide information. In recent years, the BGH has extended advisory liability, in particular, to capital investments and so-called coupled or joint transactions; a classic - because it occurs every day - is the question of liability for fixed loans ( mortgage loan ) in connection with the conclusion of a life insurance policy to suspend repayments.

Credit institutions

Credit institutions are also liable for the diligence of a prudent businessman as part of their advisory liability in accordance with Section 347 (1) of the German Commercial Code (HGB), since they are a businessman within the meaning of the Commercial Code . According to the rulings of the BGH, advice from credit institutions has to be “appropriate to the investor” and “appropriate to the property” under civil law . Then they have to research the level of knowledge of the customer about investment transactions of the intended type and his willingness to take risks as part of the “investor-friendly” advice; the investment property recommended by banks must take these criteria into account (“property-specific” advice). With this objective in mind, the recommended investment must be tailored to the client's personal circumstances, ie be “investor-friendly”.

Extended advisory obligations

There are extended advisory obligations, in particular, when it comes to the sale of options , futures and asset management contracts .

Discount broker

Since advice on so-called advice-free business (“execution-only” services) is not part of the duties of a direct bank for discount brokers , no tacit investment advice contract is concluded in connection with securities transactions. The acceptance of own consulting obligations from a consulting contract is then fundamentally excluded. Section 63 (10) of the WpHG also requires a so-called appropriateness test in non-advisory business - under supervisory law. A duty to inform under civil law is only possible for discount brokers if the discount broker has recognized that the customer is in need of clarification or has not recognized it as a result of gross negligence . In the case of staggered engagement of several investment services companies, only the company closer to the customer is generally obliged to survey the investor with regard to their experience, knowledge, investment goals and financial circumstances ( Section 278 BGB).

Statute of limitations

Naturally, the injured party is initially unable to recognize the incorrect advice (otherwise he would not have taken advantage of the advice or would not have followed the advice of the advisor). The (possible incorrect advice) is therefore usually only recognizable when damage has occurred. In the case of bad or incorrect advice, the general statute of limitations of 3 years applies according to § 195 BGB , which only begins to run at the end of the year in which the claim arose and the person being advised became aware of the fact of the incorrect advice and the occurrence of damage ( § 199 BGB). In the case of securities , a special legal provision in Section 37a WpHG applied until 2009 , according to which the 3-year limitation period also begins from the point in time at which the claim arose. According to the prevailing opinion in the literature and case law, this limitation period begins with the execution of the controversial purchase of securities.

With regard to the objection of statute of limitations regularly raised by banks and building societies in numerous lawsuits, it was long disputed whether the regular three-year statute of limitations applicable since the reform of the law of obligations began to run independently of knowledge from January 1, 2002 and thus became statute-barred at the end of December 31, 2004 was (which the wording of the transitional provision of Art. 229, Section 6, Paragraph 4, Clause 1 of the EGBGB seemed to speak for) or whether the 3-year period begins to run only after knowledge of the claim or grossly negligent ignorance. With its judgment of January 23, 2007, the BGH has now endorsed the latter consumer-friendly view and thus confirmed the prevailing opinion so far. In a judgment of May 27, 2008, the Federal Court of Justice also specified when knowledge of a claim within the meaning of Section 199 of the German Civil Code (BGB) can be assumed. All counseling cases before January 1, 2002 should have been statute-barred since the beginning of 2012, as the ten-year statute of limitations, independent of knowledge, applies. In more recent cases, it should be noted that the statute of limitations, regardless of knowledge, occurs exactly ten years after the incorrect advice, and does not begin at the end of the year.

See also

Individual evidence

  1. ↑ Peter Derleder (Ed.), Handbook on German and European Banking Law , 2009, p. 1410.
  2. ↑ Wolfgang Frahm / Alexander Walter / Wolfgang Nixdorf, Medical Liability Law , 2013, p. 2.
  3. ↑ BGH, judgment of December 19, 2006, Rn. 18 mwN
  4. ↑ BGHZ 123, 126 - "Bond judgment"
  5. ↑ BGH, judgment of February 6, 2014, Az .: IX ZR 245/12
  6. ↑ BGH, judgment of May 12, 2009, Az .: XI ZR 586/07
  7. ↑ BGH NJW 1998, 2675
  8. ↑ Article 25 (6) of Directive 2014/65 / EU and Article 54 of Delegated Regulation (EU) 2017/565
  9. ↑ Olina Burkhardt, The Inclusion of Private Management Consultants in State Decision-Making Processes , 2008, p. 27.
  10. ↑ Stanislav Tobias, Bankrecht , 2006, p. 52 ff.
  11. ↑ BGHZ 46, 260, 267
  12. ↑ BGH NJW 2007, 1874
  13. ↑ BGHZ 53, 132, 134; BGH NJW 1967, 1462 No. 2
  14. ^ Gert Moritz, Handbuch Finanz und Vermögensberatung , 2004, p. 997.
  15. ^ Stanislav Tobias, Bankrecht , 2006, p. 55.
  16. ↑ BGH NJW 1973, 321, 323
  17. ^ Analogous to the investment advisor: BGH, judgment of March 22, 1979, Az .: VII ZR 259/77
  18. ↑ cf. e.g. BGH, judgment of February 8, 1978, Az. VIII ZR 20/77
  19. ↑ BGHZ 61, 118, 122; BGHZ 124, 151, 159 f.
  20. ↑ BGH, judgment of May 20, 2003 , Az.XI ZR 248/02, full text
  21. ↑ BGH, judgment of July 6, 1993, Az. XI ZR 12/93 = BGHZ 123, 126: "Bond judgment"
  22. ↑ BGH, judgment of November 25, 1961, Az .: IVa ZR 286/80 = NJW 1982, 1095, 1096
  23. ^ BGH, judgment of March 19, 2013, Az .: XI ZR 431/11
  24. ^ BGH, judgment of October 5, 1999, BGHZ 142, 345, 358
  25. ^ BGH, judgment of May 8, 2001, BGHZ 147, 343, 353
  26. ^ BGH, judgment of January 23, 2007 , Az. XI ZR 44/06; Full text
  27. ^ BGH, judgment of May 27, 2008 , Az. XI ZR 132/07; Full text