Secondary liability
The secondary liability is an extension of the liability regime in particular contractual legal areas, as alone the legal requirements that are not fair. The case law therefore extended the liability system to include so-called secondary liability. Secondary liability acquired particular importance in the service sector of the liberal professions.
Secondary liability with the lawyer
If a client suffers damage due to incorrect legal advice, he is entitled to a (primary) claim for damages against the respective lawyer. This results from the poor performance of the consulting contract. The same applies to tax consultants, auditors and patent attorneys. The secondary liability goes back to a decision of the Reichsgericht . According to this, the lawyer is obliged to point out any personal liability. As soon as the lawyer realizes that he has advised incorrectly, he must inform his client about this and the limitation period .
If the lawyer has failed to provide this information, the so-called secondary liability applies. If the liable lawyer culpably fails to do so, the injured party is entitled to a secondary claim , which is aimed at being made as if the limitation period for the primary claim for damages had not occurred. The lawyer is therefore obliged to point out advisory errors to his clients without being asked. Failure to do so represents a breach of duty and justifies your own claim for damages.
This so-called secondary liability (because it occurs in addition to the primary liability for defects) becomes statute-barred independently in the regular limitation period of three years from the end of the year in which the claim arose and the client became aware of the circumstances giving rise to the claim and the person of the debtor or should have achieved.
The obligation to indicate the impending statute of limitations of the claim for damages was justified, among other things, with § 51b BRAO , which ordered a statute of limitations independent of knowledge. However, this norm was repealed in the wake of the modernization of the law of obligations with effect from December 15, 2004. The three-year statute of limitations based on knowledge according to § 195 BGB or the knowledge-independent limitation period of ten years according to § 199 Paragraph 3 Sentence 1 No. 1 BGB now applies . Identical regulations have also been repealed in other professions, such as § 45b PatAnwO for patent attorneys, § 68 StBerG for tax consultants and § 51a WPO , 323 para. 5 HGB for auditors . With the repeal of these norms, secondary liability will probably no longer be represented. To date, no clarification has been brought about by the case law. It must therefore be assumed that secondary liability is no longer a topical issue, but has become a topic of legal history. This is supported by the fact that the legislature states in Art. 4 No. 1 with the repeal of Section 51 b BRAO (BT Drucks. 15/3653, p. 14): “According to the new regulation, there is no longer any need for secondary liability under statute of limitations developed by the case law . ”Accordingly, no judgment has been made known in the last few years in which the institute of secondary liability was used.
Secondary liability in other areas of law
Secondary liability is also provided in other areas of law, such as construction or architects' law. However, it cannot be transferred to any area or professional group. For example, there is no secondary liability for an investment services company such as a bank if information or advisory obligations have been violated. The same advisory error would be different with a lawyer or tax advisor, see above. In the case of an architect , secondary liability only arises if he has also been assigned service phase 9 within the meaning of § 15 HOAI . Otherwise, the objection of limitation will not be excluded if there is no reference to possible warranty claims.
In a ruling of December 10, 2009 (Az .: VII ZR 42/08), the Federal Court of Justice (BGH) judged the obligations with regard to secondary liability less strictly than with other professional groups. The duties of the auditors in the respective annual financial statements and in the related documents would be limited to advice and auditing.
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Footnotes
- ↑ RGZ 158, 130
- ↑ cf. Rejecting secondary liability: Kilian, Legal basis for attorney's activity, 2005, p. 67
- ↑ Baumbach / Hopt, § 347 HGB, 32nd edition 2006, Rn. 39
- ↑ cf. Neuenfeld, The case law of 2005 on the law of architects and engineers, NZBau 2006, 741, 744
- ↑ Decision of the BGH on secondary liability for auditors - PDF file
- ^ Mildness for auditors, in: Frankfurter Allgemeine Zeitung of January 13, 2010
