“Evidence” possible through party submissions alone! – On the decision of the BGH of 10.03.2021 – Ref. XII ZR 54/20

July 3, 2023/in Nicht kategorisiert

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"Evidence" possible through party hearing alone! - On the decision of the BGH of 10.03.2021 - Ref. XII ZR 54/20

Everyone is probably aware that evidence in civil proceedings is essentially provided by documents, witnesses and experts.

In contrast, statements by the parties involved (party submissions) are – it is widely believed – “only” factual submissions that must first be supported by evidence if you want your arguments to be successful.

In its ruling of 10.03.2021 (case no. XII ZR 54/20), the Federal Court of Justice pointed out – as a matter of course – that the party’s submissions alone can be sufficient to support a judgment!

The BGH stated:

“The complaint against denial of leave to appeal rightly complains that the contested judgment is based on a decision-relevant violation of Article 103(1) of the Basic Law, because it failed to take the to take note of the plaintiff’s submissions relevant to the decision in the manner required by Article 103 (1) of the Basic Law and to take the evidence offered (see Senate decision of December 18, 2019 – XII ZR 67/19 – NJW-RR 2020, 392 marginal no. 8 with further references).”

“In its assessment of the plaintiff’s credibility
, the Higher Regional Court also relied on the fact that her statements regarding the in rem security for the payment, which she had made with regard to
a jointly intended marriage with the testator in 2016 under
, were not credible. In this respect, it was unable to form a conviction on the basis of the factual submissions and the personal interview with the plaintiff and thus considered the evidence incumbent on the plaintiff to be lacking. In doing so, however, it disregarded essential submissions of the plaintiff.”

“Article 103 (1) of the Basic Law obliges the court to take note of and consider the submissions of the parties to the proceedings.
In doing so,
the requirement of the right to be heard as a fundamental procedural right is intended to ensure that the decision is made free of procedural errors that are due to the failure to take note of and consider the parties’ submissions. In this sense, Article 103 (1) of the Basic Law in conjunction with the principles of the Code of Civil Procedure require that significant requests for evidence be taken into account.”

The passages quoted above from the Federal Court of Justice’s decision firstly describe the general significance of party submissions in civil proceedings.

In the following statement, the BGH then recalls a fundamental principle of civil procedure that is unknown to many:

“It is true that the Regional Court did not have to take evidence from witnesses after it had already based its conviction on the information provided by the plaintiff alone. However, if the Higher Regional Court did not want to consider the evidence of the claim made by the plaintiff to have already been established by the result of her personal interview, it either had to take and assess the additional witness evidence offered or, if it considered the witness evidence on the internal fact of the intention to marry to be insufficiently supported by circumstantial evidence, it had to point this out to the plaintiff. By failing to do so, it violated the plaintiff’s right to be heard.”

It follows that a court can base its judgment solely on the submissions of the parties! Only if it wishes to deviate from this party submission must (further) evidence be taken!

My rating:

The BGH correctly stated this principle as a matter of course because a court forms its conviction freely in accordance with the central standard of Section 286 (1) sentence 1 ZPO:

“The court must decide whether a factual allegation is to be regarded as true or not true, taking into account the entire content of the hearings and the result of any taking of evidence.”

It follows from this, of course, that the court may form its conviction as to the truth freely, i.e. without the need to take evidence, e.g. by hearing witnesses. Accordingly, it also goes without saying that the court may also base its judgment solely on the statements of one party.

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Guide to GmbH law: The duties and liability risks of the managing director of a GmbH

June 26, 2023/in Compliance, Liability law

LEGAL+ NEWS

Guide to GmbH law: Managing director activities in the GmbH – On the duties and liability risks of the managing director of a GmbH

From years of advising medium-sized companies, the author of this article has come to realize that their managing directors are usually legally inexperienced and are not sufficiently aware of the obligations associated with their activities and thus the liability risks if these are not observed.

A. Introduction

The central legal standard that provides information on the duties of the managing director of a GmbH is § 43 Aba. 1 GmbHG:

“The managing directors shall exercise the diligence of a prudent businessman in the affairs of the company.”

Accordingly, the managing directors must act “in the affairs of the company” with the diligence of a prudent businessman.

In principle, the company’s creditors are liable for every contractual and non-contractual obligation.

fault of its managing directors (Sections 31, 278 BGB) only the GmbH. As a rule, the managing director must also only be liable to the company for the breach of duties incumbent upon him.

are responsible. They are liable to pay damages to the GmbH if the company suffers damage due to a breach of duty. This is regulated by § 43 Para. 2 GmbHG. In the case of intent, criminal liability, e.g. for breach of trust (§ 266 StGB), may even be considered.

In the external relationship, i.e. towards third parties, only the GmbH is liable, which can indemnify its managing directors as described above. However, this does not mean that external liability of the managing directors is excluded.

In addition to personal liability in the area of tax and social security law, the managing director may also be liable on the basis of his own contractual obligations, on the basis of an induced legal appearance, on the basis of (personal) culpability when concluding the contract and in tort.

For the aforementioned reasons, every managing director of a GmbH is urgently recommended to be as familiar as possible with the requirements for proper managing director activity and the impending consequences both internally and externally. The following article is intended to provide information on this.

B. The duties of the managing director

The prerequisite for any liability is a breach of duty by the managing director.

The duties of the managing director arise from the law, the articles of association and – if applicable – from his or her employment contract. In the case of several managing directors, the rules of procedure often result in binding, liability-relevant allocations of responsibilities.

The obligations resulting from the law are presented below.

I. Starting point: Business Judgement Rule

First and foremost, it is of considerable importance that the managing director is granted a wide scope of action in managing the business of the GmbH.

A possible liability for damages only comes into consideration if the limits
of this scope of action granted to him are exceeded.

As a rule of thumb, a lawful discretionary decision is deemed to have been made if the managing director concerned “could reasonably assume when making a business decision that he was acting in the best interests of the company on the basis of appropriate information” (so-called business judgment rule). Liability for a breach of duty is then generally excluded.

The background to this broad scope for action is that acting in the interests of the company can necessarily involve consciously taking business risks. The danger of misjudgement and miscalculation is inherent in this.

In short, entrepreneurial action is always associated with risks. Only actions that can be classified as completely irresponsible go beyond this scope of action.

II Duty to manage the company diligently and properly

The task of the managing directors is to manage the company. The managing directors have a duty to ensure that the company behaves lawfully in relation to third parties. In detail:

1. promotion of the purpose of the company

The management must actively pursue the purpose of the company as set out in the Articles of Association.

Accordingly, the Management Board is responsible in particular for managing the day-to-day business, developing the long-term corporate policy and, if necessary, implementing the corporate policy adopted by the shareholders.

According to
Section 43 (1) GmbHG, the benchmark for the proper fulfillment of these management duties is the “diligence of a prudent businessman”. This is substantiated by the duty to carefully determine the basis for decisions, to focus exclusively on the company’s best interests and not to take excessive risks (business judgement rule!).

If the above is observed by the managing director, taking a risk that later materializes or another wrong business decision is not in breach of duty and therefore does not give rise to liability.

2. binding to the law (so-called legality obligation)

When fulfilling legal obligations, a breach almost inevitably leads to a breach of duty in the internal relationship as well. Legal obligations must therefore be observed at all costs. The managing directors cannot assume that the shareholders do not wish to fulfill these obligations. This applies regardless of whether the duties are based on public law (e.g. tax law, social security law) or private law (e.g. the duty to ensure road safety).

3. no binding commitment to contracts

However, the situation is different when it comes to fulfilling obligations under private law arising from contracts.

It may well make business sense not to fulfill such obligations
and instead to wait for claims for damages and, if necessary, to fulfill them
(so-called “useful” breach of duty).

If the managing director comes to this conclusion after due consideration, there is no breach of duty on his part in relation to the company in this case.

III Duty of loyalty

The managing director has a special fiduciary duty to the company as an executive body, which means that in all matters affecting the interests of the company, he must pursue the company’s interests alone and not his own advantage or the advantage of third parties.

The fiduciary duty is important as a special duty compared to the general duty to manage the company because there is no entrepreneurial room for maneuver if the fiduciary duty is fulfilled. The above-mentioned duty to act in accordance with the law is a particular consequence of this duty of loyalty.

One of the consequences of the duty of loyalty is that

Every managing director must make their full working capacity available to the company; overtime may also be owed.
A managing director may not resign from office without consideration for the GmbH (no “resignation at an inopportune time”).
Every managing director is subject to a comprehensive non-competition clause.
Important: The managing director may not exploit his position for his own benefit. In particular, he may not exploit business opportunities of the GmbH for himself or enrich himself in any way to the detriment of the GmbH.
Every managing director is subject to a comprehensive duty of confidentiality.

IV. Exemption from and reduction of liability

To a certain extent, it is an exemption from liability if the managing director has breached a duty without fault. This is because there is generally no liability without fault.

If there is a breach of duty, the managing director is presumed to be at fault. He would therefore have to prove that he is not liable in the individual case due to a lack of fault.

It is possible, for example, for the managing director to exonerate himself by claiming that he did not know and did not need to know that he was breaching a duty. This would have to be examined and assessed on a case-by-case basis.

In addition, the following cases may possibly exonerate the individual managing director:

1. allocation of responsibilities if there are several managing directors

Unless the articles of association or shareholder resolutions
provide otherwise, several managing directors are jointly authorized and obliged to manage the company.

Any delimitation of tasks may result from corresponding shareholder resolutions. In the absence of such resolutions, the managing directors themselves can allocate and delimit areas of responsibility among themselves. This requires that this division is made visible to the outside world, preferably in writing. In addition, the allocation in question must be in line with qualifications. It should also be noted that not every task can be assigned to the management.

The consequence of an effective division is that the individual managing director only has supervisory duties with regard to his co-managing directors. In principle, he is no longer responsible for the individual decisions made by the co-managing director.

2. delegation of duties

In principle, the GmbH managing director may delegate duties incumbent upon him without restriction. It goes without saying that such a permissible delegation of duties does not automatically lead to a release from liability. Rather, the managing director has a comprehensive duty of control and supervision as a result of the delegation. Read my separate article.

3. instructions from the shareholders

The shareholders of the GmbH can issue instructions to the managing directors at any time. The shareholders’ meeting is normally authorized to issue instructions, but not the individual
shareholders.

The managing directors’ duty to comply with instructions follows from the shareholders’ right to issue instructions. Failure to do so is a breach of duty and can lead to the managing director’s liability
. Conversely, managing directors are exempt from any liability if they act on the basis of a permissible instruction from the shareholders’ meeting.

The shareholder resolution therefore shifts the responsibility for the relevant action from the management to the shareholders. This even applies in principle if the company is deliberately harmed as a result!

This shift in responsibility is limited where the law sets limits for the shareholders and refuses to allow the corresponding shareholder resolution to take effect, i.e. declares it null and void. These are the cases of § 241 AktG, which also apply accordingly to the GmbH.

4. finally: liability relief in the employment contract

According to the prevailing opinion, the liability of the managing director can be limited via his employment contract. However, this appears questionable for reasons of creditor protection. This is because the creditors of the GmbH are dependent on the GmbH being managed with the necessary care. However, the law ultimately permits a restriction. In particular, the following limitations of liability are recognized as permissible:

Exclusion of liability for negligent breaches of duty,
Limitation of liability to a maximum amount,
Shortening of the limitation period.

C. Cases of internal liability of the managing director

The standard liability standard is Section 43 (2) GmbhG, which applies if

– a managing director has breached a duty incumbent on him (see above),
– he is at fault,
– no other exemption from liability applies, and
– the company has suffered a loss as a result.

In addition, there are the following, more specific cases of liability:

I. Increased liability for damages in cases of § 43 para. 3 GmbhG

§ Section 43 (3) of the German Limited Liability Companies Act (GmbHG) provides for more stringent and mandatory liability for managing directors in two specific circumstances.

These circumstances relate to the capital maintenance requirement and serve to protect creditors. The increased liability applies if, contrary to

§ 30 GmbHG payments are made from the company’s assets required to maintain the share capital, § 43 Para. 3 Sentence 1 Alt. 1 GmbHG, or
own shares in the company are acquired in accordance with the provisions of § 33 GmbHG, § 43 Para. 3 Sentence 1 Alt. 2 GmbH.

The facts are also fulfilled if equity-replacing loans within the meaning of Section 30 GmbHG are repaid to the shareholders. This follows directly from the fact that these are treated in the same way as share capital and therefore may not be repaid in the same way as share capital. However, the situation is different for equity-replacing loans in accordance with §§ 32a, b GmbHG. Repayment is permitted here, but the company may be entitled to reimbursement. Accordingly, the managing directors are not acting in breach of duty in the event of repayment in accordance with § 43 Para. 3 GmbHG. Whether the repayment is nevertheless in breach of duty in the specific situation must be assessed independently of this. In any case, it is permissible following corresponding instructions from the shareholders’ meeting.

The liability of the managing directors is mandatory in the aforementioned cases, whereby, as in all other cases, fault on the part of the managing director is a prerequisite for liability. If necessary, liability can also be reduced, i.e. limited to gross negligence, intent or a limitation of the amount. Acting on the instructions of the shareholders’ meeting only exonerates the managing director in accordance with § 43 para. 3 sentence 3 GmbHG as long as the claim is not asserted to satisfy the creditors.

II Compensation obligations in the event of a breach of the duty to file for insolvency, section 15a (1) InsO

The GmbH managing director’s obligation to file for insolvency, which was previously regulated in Section 64 GmbHG (old version), is now regulated centrally for all legal entities in Section 15a InsO.

If there is a reason for insolvency – insolvency or over-indebtedness – every managing director is obliged to file for insolvency and thus bring the company into proceedings in which the creditors’ claims are satisfied as far as possible.

According to Section 15b (1) InsO, managing directors may no longer make payments on behalf of a company once it becomes insolvent or overindebted. Payments are therefore generally prohibited from the time the obligation to file for insolvency arises. This is because the managing director may not favor individual creditors by making payments that reduce the available funds at the expense of the creditors as a whole.

An exception applies to payments that are compatible with the diligence of a prudent and conscientious manager, section 15b (1) sentence 2 InsO. In these cases, the payment may not be in breach of duty from the outset. The criterion for assessing the duty of care to be observed is the objective interest of the creditor.

The question of when a payment is deemed to be “consistent with the due care and diligence of a prudent and conscientious manager” is specified in Section 15b (2) and (3) InsO – a novelty compared to the previous legal situation:

According to Section 15b (2), payments that are made “in the ordinary course of business”, in particular those payments that are “necessary to maintain business operations”, are deemed to be consistent with the diligence of a prudent and conscientious manager.

However, pursuant to section 15b (2) sentence 2 InsO, payments made in the ordinary course of business within the meaning of section 15b (2) sentence 1 InsO are only privileged as long as the managing directors – which they must demonstrate and prove – “take measures to permanently eliminate insolvency maturity or to prepare an insolvency application with the diligence of a prudent and conscientious manager”.

§ Section 15b (3) InsO stipulates that payments made after the expiry of the insolvency application period pursuant to section 15a (1) InsO are not compatible with the diligence of a conscientious manager. This means that the manager who files the insolvency application late and has made payments that reduce the assets during the delay is regularly liable in accordance with section 15b (1) InsO.

The consequence of a prohibited payment is then a corresponding reimbursement obligation on the part of the managing director; section 15b (4) sentence 1 InsO.

D. The external liability of the managing director

Liability of the managing director towards third parties (external liability) is the exception, because the legislator has made a fundamental decision in § 43 Para. 2 GmbHG in favor of internal liability of the managing director towards the company.

The following cases of nonetheless existing external liability are significant:

I. External liability under civil law

External liability of the managing director may arise from civil law as follows:

1. quasi-contractual liability due to so-called culpa in contrahendo (c.i.c.), §§ 280 para. 1, 311 para. 3 BGB

An external liability of the managing director may arise on a contractual level from Section 311 (3) BGB.

According to Section 241 (2) of the German Civil Code (BGB), legal duties to protect can also exist for a third party who “claims a particular degree of trust and thereby significantly influences the contract negotiations or the conclusion of the contract”.

Liability is discussed in the following cases:

Economic self-interest

Personal liability of the managing director towards third parties is initially considered if he has such a close (economic) relationship with the subject of the contract negotiations that he is ultimately acting as a representative on his own behalf.

The managing director is then liable under the aspect of culpa in contrahendo pursuant to Sections 280 (1), 311 (3) BGB due to direct economic self-interest. The standards to be applied for this self-interest are strict. It is not sufficient, for example, that the negotiating managing director is also the sole or majority shareholder of the GmbH or that he acquires a commission claim by concluding the contract. The BGH has affirmed liability in the event that the managing director’s activity is aimed at remedying damage for which he could otherwise be held liable by the company itself or in cases in which the managing director did not want to pass on the contractual performance to the company from the outset but wanted to use it for his own specific purposes.

Utilization of special personal trust

A further group of cases is the use of special personal trust by the managing director. This refers to cases in which the managing director generates additional, particularly personal trust in the completeness and correctness of his declarations that goes beyond normal negotiating loyalty and on which the other party’s decision is based. It is required that the managing director has made a declaration similar to a guarantee to the contractual partner.

2. liability in tort, Section 823 (1) and (2) BGB

A managing director’s liability towards third parties may also arise from tort law.

The prerequisite is that the managing director damages a third party in direct connection with his activities as managing director and in doing so culpably violates either a protected good within the meaning of Section 823 (1) BGB or a protective law within the meaning of Section 823 (2) BGB.

The company itself may be jointly and severally liable with the managing director.

A distinction must be made between active action and omission:

Liability for active actions

If a managing director’s own actions violate a legal interest specified in Section 823 (1) BGB, in particular the life, limb or property of a third party, the managing director is personally liable alongside the company. This is largely undisputed.

The vicarious liability pursuant to Section 823 para. 2 BGB extends the external liability limited to only a few named legal interests pursuant to Section 823 para. 1 BGB by an additional
liability under protective law.

While § 34 GmbHG is not a protective law, the following can be considered protective laws whose violation by the managing director can trigger liability: § 35a GmbHG, § 58 Para. 1 No. 2 GmbHG, § 82 GmbHG, § 85 GmbHG and § 15a Para. 1 InsO.

Various other protective laws can be found in criminal law, such as § 266 StGB (breach of trust), § 263 StGB (fraud), §§ 266a para. 1 StGB, 14 para. 1 no. 1 StGB (obligation to pass on employee contributions to social security) and §§ 283 para. 2 sentence 1 no. 5, 7, 283b para. 1 no. 1, 3 in conjunction with § 14 para. 1 no. 1 StGB (bankruptcy offenses). § Section 14 para. 1 no. 1 StGB (bankruptcy offenses).

If the managing director violates such a protective law through his own negligent or willful, unlawful and culpable actions
, he shall be held directly and personally liable to the injured third party under civil law in addition to any criminal liability.

Liability for omission (guarantor liability)

Liability for injunctive relief under civil law presupposes that the managing director
is under an obligation to intervene in the sense of a duty to avert success.

This is particularly relevant in the area of traffic safety and organizational duties towards third parties. As already explained, a breach of the duties resulting from the managing director’s position as an executive body generally only leads to liability towards the company.

From this, the BGH deduces that the managing director is not liable to third parties even if he was aware, for example, of competition law infringements, copyright or trademark infringements and failed to prevent them.

Something else only applies if the managing director assumes a “guarantor position” to protect third parties from endangering or infringing their legal interests. This does not result from the mere position as managing director of a GmbH. Rather, the managing director must have breached his own duty of conduct or organization over and above his position as an executive body, which requires special justification in the form of a tort-specific duty to intervene.

It is recognized that GmbH managing directors have a guarantor position that gives rise to liability, particularly in the following cases:

as a so-called protective guarantor for the assumption of warranty for third-party goods entrusted to the GmbH in the broader sense
as a so-called supervisor guarantor from “traffic safety obligation” by virtue of taking over the safeguarding of “GmbH’s own” sources of material hazards such as: hazardous operating goods, vehicles, equipment, etc.

In the case of breaches of competition law by the GmbH, mere knowledge and the possibility of preventing the breach of competition law alone is not sufficient – contrary to what was previously assumed. Rather, the infringement of competition must be based on conduct attributable to the managing director, e.g. in the case of a measure that is typically decided at management level. Liability for injunctive relief may also be considered if the managing director has created a source of danger for competition law infringements, for example by staying abroad permanently, and in this way avoids the possibility of taking note of any competition law infringements and initiating appropriate countermeasures.

3. damages due to delay in filing for insolvency

The external liability of the managing director under tort law for delay in filing for insolvency deserves special mention.

§ Section 15a (1) sentence 1 InsO obliges the managing directors of a GmbH to file for insolvency within three weeks (insolvency) or six weeks (over-indebtedness) of the occurrence of a reason for insolvency. This obligation exists in the interests of all legal transactions, which are to be protected from insolvent companies. Accordingly, Section 15a (1) sentence 1 InsO is a protective law in favor of all creditors of the GmbH.

By breaching the duty to file an application, the managing director may therefore be personally liable for damages in accordance with section 823 (2) BGB in conjunction with section 15a (1) sentence 1 InsO.

The only prerequisite for liability is that the managing director is in breach of duty and
culpably fails to file for insolvency in good time. Please refer to the above explanations under C. II.

New creditors whose liabilities were established after the existence of a reason for insolvency are entitled to compensation for their full loss, not just the so-called quota loss. They can claim this themselves, but not the insolvency administrator. The managing director is liable for the so-called negative interest. He must therefore place the injured creditor in the same position as if the damaging event had not occurred.

Existing creditors, on the other hand, can only demand compensation for the so-called quota deterioration. For existing creditors, i.e. creditors who were already creditors of the GmbH before the reason for insolvency occurred, the damage consists in the fact that their claims became even more worthless than they already were. If the application had been filed in good time, the insolvency quota would have been correspondingly higher. Their loss therefore consists of the deterioration in the quota.

II External liability in tort for breaches of duties under public law

A GmbH is subject to a large number of obligations under public law.

These include obligations in the areas of occupational safety, social security, tax law, environmental protection law and, of course, product-related obligations such as food law or pharmaceutical law. As usual, the addressee of these obligations is primarily the GmbH itself. However, the managing director as an executive body is often also regarded as a “disruptor” within the meaning of the law on averting danger, meaning that the managing director can also be held liable under police and regulatory law. As the disruptive party can be required to eliminate the disruption, this can lead to personal liability of the managing director for the impairment of the legal interests of the general public or other third parties by the GmbH.

In addition, the liability of managing directors generally arises from Section 9 (1) OWiG and Section 14 (1) StGB. According to these provisions, corporate bodies are liable under criminal law and administrative offense law for the fulfillment of the company’s obligations, as the characteristics of the company are attributed to them personally. This also leads to civil liability of the managing directors under Section 823 (2) of the German Civil Code (BGB), insofar as these are duties that protect third parties.

The obligations arising from tax law and social security law deserve special attention:

1. tax liability

According to Section 34 (1) AO, the managing director must fulfill the company’s tax obligations at
.

He must keep the books, submit the tax returns and pay the taxes from the assets of the GmbH. Liability for breach of these duties is stipulated in § 69 AO. According to this, the managing director is liable if he breaches his tax obligations intentionally or through gross negligence.

The tax obligations are defined so broadly by case law that the
managing director is de facto responsible for ensuring that taxes are paid when due.

If this is not done, the managing director is liable.

However, the prerequisite is that funds are available from which the taxes can be paid. In this case, previous breaches of duty – e.g. failure to submit a tax return – no longer lead to liability, as they were not causal for the tax shortfall. The available funds also include credit funds that are available to the company or that can be procured. In principle, the due date of the taxes is decisive for availability.

2. liability for the payment of social security contributions

In the case of employee social security contributions, a distinction must be made between the employer’s share and the employee’s share. The former is a separate debt of the GmbH and must be paid by the GmbH from its own funds. It is a normal liability of the GmbH; no special rules apply to its payment. Therefore, the managing director is not personally liable in this respect.

However, the situation is different for employee contributions. The withholding of
employee contributions is punishable under Section 266a StGB. This obligation applies to the employer, i.e. the GmbH. However, the managing director is also criminally liable for the fulfillment of this obligation under Section 14 (1) StGB.

As Section 266a StGB is a protective law, the managing director is also liable under civil law in accordance with Section 823 (2) BGB if he does not pay the employee contributions. Particularly in a financial crisis, the managing director can no longer rely on the employees to whom he has assigned this task to carry it out as before. In this situation, the managing director’s duty of supervision comes into play; as a result, the managing director must personally ensure that the contributions are paid. If there are several managing directors, those managing directors who are not responsible for this according to the internal allocation of tasks also have an increased duty of supervision in the event of a company crisis.

As a result, the liability of the managing director for the employee’s social security contribution is similarly strict as the tax liability. This is the result of the criminal liability for non-payment of contributions under Section 266a StGB and the extension of employer status to the managing director under Section 14 para. 1 no. 1 StGB

III Finally: Liability for fines arising from breaches of supervisory duties

The possible liability under Section 130 OWIG for breaches of supervisory duties is also significant and should not be neglected. § Section 130 (1) OWiG reads:

“Any person who, as the owner of a business or enterprise, intentionally or negligently fails to take the supervisory measures necessary to prevent infringements of obligations in the business or enterprise which affect the owner and the violation of which is punishable by a penalty or fine, shall be deemed to have committed an offense if such an infringement is committed which would have been prevented or made considerably more difficult by proper supervision. The necessary supervisory measures also include the appointment, careful selection and monitoring of supervisors.”

The actual infringement is therefore committed by an employee who, however, cannot be held liable himself due to his lack of ownership. Therefore, the supervisor is liable under the law on fines for or in place of the GmbH, which is actually obliged but unable to perform, for incorrect supervision and organization of the company.

If such a “proxy offense” is committed, the GmbH is also liable for its own fine in accordance with § 30 OWiG.

The basic prerequisite for liability is the objective breach by an employee of the owner GmbH’s operating obligations. This breach is the reason for the (omitted) necessary supervision or monitoring on the part of the management, which depends on the type, sector, size, organization and risk areas of the company: Approximately the entire spectrum of the traffic duties of the negligence offenses as well as the guarantor duties of the omission offenses – in simple terms, “virtually everything”. In practice, omissions completely dominate.

As a minimum standard, proper business organization includes a proper division of tasks and organization, careful selection and supervision of employees, instruction and education of employees, monitoring and control of internal execution, reporting obligations of the supervisory and management bodies, intervention and, if necessary, sanctions in the event of violations as well as special supervision in the event of irregularities.

Please also read my separate article on the requirements for a delegation of duties

From a subjective point of view, the violation must have been conscious or at least foreseeable and avoidable by internal precautions with proper supervision and control of the supervisory body.

E. Conclusion

The aim of the above article is to show managing directors and those who want to become managing directors that the range of duties of the managing director as an executive body of the GmbH is very extensive and that personal liability, including external liability, is by no means rare.

The managing director is responsible for everything as the legal organ of the GmbH, which is incapable of acting on its own. Restrictions on his liability are possible to a limited extent – e.g. by delimiting responsibilities in the case of several managing directors – provided they have been implemented in an effective manner.

Many managing directors find it difficult to determine in individual cases which actions constitute the proper fulfillment of duties. As shown above, the managing director is obliged to act in the best interests of his GmbH on the one hand and to comply with the law on the other. As shown above, in individual cases, proper conduct may also include breaching a contract with a business partner.

In view of the numerous circumstances that can result in personal liability for the managing director, legal advice is strongly recommended, especially in unclear constellations.

Do you have any questions?

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International procedural law

Recognition and enforcement of EU judgments in Germany

The internationalization of business transactions means that the question of whether and how a judgment issued in the creditor’s home country can be enforced in the debtor’s home country is of great practical importance. The author of this article has also experienced that many debtors are not prepared to pay voluntarily.

The following article provides an overview of how a judgment issued in the EU in civil and/or commercial matters can be enforced in other EU Member States – here using Germany as an example.

Read more "

November 21, 2023

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Documentary action in civil proceedings: definition, procedure and context with the order for payment procedure

An action based on documentary evidence or a documentary process offers the possibility, as an accelerated procedure, to bring an action – initially – only by means of documents, see Section 592 ZPO.

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October 19, 2023

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Obvious facts in civil proceedings – is it necessary to take evidence in court?

LEGAL+ NEWS ZPO guide: Obvious facts in civil proceedings –

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October 4, 2023

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Estimation of fictitious defect rectification costs

November 8, 2022/in Commercial law, Nicht kategorisiert

LEGAL+ NEWS

BGH ruling of March 11, 2022 - V ZR 35/21: Criteria for the judicial estimation of fictitious defect rectification costs

Problem definition

It has been clarified for some time by a landmark decision of the BGH that the contractual claim for damages instead of performance in accordance with Sections 437 No. 3, 280, 281 BGB can be assessed on the basis of the “fictitious” costs of remedying defects that are likely to be necessary but have not yet been incurred, see BGH ruling of 12.03.2021, Ref. V ZR 33/19.

In practice, it is of particular relevance how the court called upon to decide in an individual case is to determine the amount of such fictitious damage costs. The starting point for this is Section 287 (1) ZPO, which reads as follows:

“If there is a dispute between the parties as to whether damage has occurred and how much the damage or an interest to be compensated amounts to, the court shall decide on this in its own discretion, taking into account all the circumstances. Whether and to what extent a requested taking of evidence or ex officio expert appraisal is to be ordered is left to the discretion of the court. (…)”

It has not yet been clarified according to which principles the court must apply the aforementioned Section 287 (1) ZPO in the specific case.

In a more recent decision from March 11, 2022 (case no. V ZR 35/21), the BGH provided the courts of lower instances with valuable criteria.

The judgment

Its decision of March 11, 2022 (case no. V ZR 35/2) was based on the following abridged facts:

The subject of the dispute was the purchase contract for a property. The sellers had concealed from the buyers that the external waterproofing of the cellar was incomplete and accordingly demanded compensation in the form of fictitious defect rectification costs.

The court of first instance had sentenced the defendants in the amount of fictitious defect rectification costs of EUR 144,800. The Court of Appeal reduced this amount to EUR 97,556 and allowed the appeal with regard to the amount of the claim.

The estimate made by the court of first instance and the court of appeal was based on an expert opinion, according to which two options for remedying the defects could be considered. According to the less expensive option A, the incompleteness of the waterproofing could not be completely eliminated, according to the more expensive option B with costs of EUR 138,920, waterproofing would be completely possible. The Court of Appeal assumed that the plaintiffs did not have to be satisfied with variant A, however, the estimation inaccuracy of +/- 30% mentioned by the expert was to be taken into account to their detriment, as the plaintiffs could only be awarded whatwould“certainly be incurred” in terms of defect rectification costs. Uncertainties in determining the costs of remedying defects should not be borne by the tortfeasor.

In its decision, the BGH initially confirmed the Court of Appeal’s assumption that the claimants did not have to settle for the cheapest option. The same applies to the rejected “new for old” deduction.

Otherwise, however, it rejected the Court of Appeal’s assumptions for determining the specific amount of damages as legally untenable. The BGH stated:

“As a starting point, the Court of Appeal correctly assumes that the contractual claim for damages instead of performance (minor damages) pursuant to Sections 437 No. 3, 280, 281 BGB can be assessed on the basis of the “fictitious” costs of remedying defects that are likely to be necessary but have not yet been incurred.

However, according to the reasoning of the Court of Appeal, the costs for the necessary renovation work determined by the expert cannot be reduced by 30% when assessing the amount of the claim for damages.

The court must determine the amount required to rectify the defect in accordance with Section 287 (1) ZPO, taking into account all the circumstances in its own discretion.

(…)

The Court of Appeal overstretches the measure of necessary conviction within the framework of Section 287 (1) ZPO and thus disregards legal principles of damage assessment.

If the asserted claim for damages is established on the merits and only the amount needs to be filled in, the injured party benefits from the facilitation of evidence under Section 287 ZPO. In contrast to the strict requirements of Section 286 (1) ZPO, when deciding on the amount of damages, a considerable probability based on a sound foundation is sufficient for the court to form its opinion; the estimate should be as close as possible to reality.

The court of appeal misjudged this. It believes that only the amount that is certain to be incurred within the scope of the estimate to be made for the rectification of defects may be awarded, so that in the case of a range of estimates, only the lower amount can regularly be awarded as damages. It thus wrongly demands absolute certainty for the assessment of damages to be carried out by it, which is not even required within the framework of § 286 ZPO. It is true that even in the case of an estimate pursuant to Section 287 ZPO, doubts about the amount of the costs required to remedy the defect may not, in principle, be borne by the tortfeasor (see BGH, Urt. v. 10.04.2003 – VII ZR 251/02 – NJW-RR 2003, 878, 879; OLG Celle, Urt. v. 17.01.2013 – 16 U 94/11 – BauR 2014, 134, 139). However, it is in the nature of things that when calculating the fictitious restoration costs required to remedy the damage, a (certain) uncertainty remains as to whether the amount objectively required for the repair (to be assessed ex ante) corresponds to the amount that would have been or would be incurred if the repair had actually been carried out. If the contractual claim for damages in lieu of performance (small damages) pursuant to Sections 437 No. 3, 280, 281 BGB is assessed on the basis of the presumably necessary but not (yet) incurred (“fictitious”) costs of remedying the defect, the court must therefore determine the damage in accordance with the principles of Section 287 (1) ZPO and in this respect to examine the extent to which damage is predominantly probable. This also and especially applies if a range of estimates is stated in an expert report. (…)”

As a consequence of the aforementioned deficiencies, the BGH referred the case back to the Court of Appeal for reconsideration and decision

Conclusion

With this decision, the BGH first confirmed that Section 287 ZPO is decisive for determining the fictitious amount of damages. For the formation of a judicial conviction, a

“considerable probability based on a sound foundation.”

Any remaining uncertainty lies in the nature of the simplified assessment of damages pursuant to Section 287 ZPO. It follows for the courts of lower instances that it is not permissible to assume the minimum amount specified by the expert as the damage. The court must correctly approach the most probable amount required to remedy the defect. For claimants, this means that it may be advisable to consult their own expert to help determine the “probable costs”.

Do you have any questions?

LATEST ARTICLES

International procedural law

Recognition and enforcement of EU judgments in Germany

The internationalization of business transactions means that the question of whether and how a judgment issued in the creditor’s home country can be enforced in the debtor’s home country is of great practical importance. The author of this article has also experienced that many debtors are not prepared to pay voluntarily.

The following article provides an overview of how a judgment issued in the EU in civil and/or commercial matters can be enforced in other EU Member States – here using Germany as an example.

Read more "

November 21, 2023

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EUGH ruling “LKW Walter”

October 18, 2022/in Commercial law, International procedural law, Nicht kategorisiert

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ECJ judgment "LKW Walter" on Article 8 EUTMR 2007: Time limit for refusing to accept service from another European country and national time limits

Problem definition

The possibility of being able to enforce one’s own rights as easily and quickly as possible in cross-border EU business transactions, which is very welcome in principle, has some pitfalls. The author’s experience shows that traders are often overwhelmed when they receive legally relevant mail from abroad. This is not least due to the fact that court documents received from abroad often do not meet the requirements of European law. Art. 8 of the European Service Regulation 2007 (Regulation No. 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters; in short: EUZVO 2007) stipulates that every document that courts within the EU wish to serve must be accompanied by a form set out in the annex to the regulation, which sets out the important rights of the recipient. Without this form, service is ineffective and time limits do not begin to run. Furthermore, Art. 8 of the EUTMR stipulates that the addressee has the right to refuse acceptance or to return the document within one week if they are unable to understand it. This case is very relevant in practice because it is more the rule than the exception that documents are sent without being translated into the recipient’s language.

In its judgment of 7 July 2022 (C-7/21; “LKW Walter”), the CJEU recently dealt with the latter protective right of the recipient – the one-week reflection period – with regard to the important question of how national appeal periods and the period for refusing acceptance (reflection period) interact.

This ruling of the European Court of Justice is of great importance, as it once again makes it clear that the European regulations for the protection of the recipient in cross-border deliveries must be interpreted strictly and that national regulations that reduce this protection are unlawful and therefore irrelevant.

The “LKW-Walter” ruling by the ECJ

In brief, the judgment of the CJEU of 7 July 2022 (C-7/21) was based on the fact that, in an Austrian-Slovenian constellation, the Slovenian courts had deemed an objection lodged from Austria against a Slovenian payment order to be untimely. In this case, the Slovenian courts had based the start of the objection period on the day of service in Austria and thus disregarded the one-week period under Art. 8 EUZVO 2007 when calculating the very short eight-day objection period. Calculated from the date of service, the objection lodged by Austrian lawyers was then also time-barred. The Slovenian courts adhered to their calculation method throughout all instances. The case was only referred to the European Court of Justice in the context of lawyers’ liability proceedings.

With regard to the ultimately only relevant question referred for a preliminary ruling, namely whether the one-week time limit under Art. 8 EUTMR 2007 suspends national time limits for appeals, the ECJ made the following findings in particular:

’35 That possibility of refusing to accept the document to be served constitutes a right of the addressee of that document (judgment of September 6, 2018, Catlin Europe, C 21/17, EU:C:2018:675, paragraph 32 and the case-law cited). The addressee may exercise that right when the document is served or within one week, provided that he returns the document within that period.”

“36 It is also apparent from the case-law of the Court that that right to refuse to accept a document to be served makes it possible to protect the rights of the defense of the addressee of that document, in compliance with the requirements of a fair trial laid down in Article 47(2) of the Charter. Even if Regulation No 1393/2007 is primarily intended to improve the effectiveness and speed of judicial proceedings and to ensure the proper administration of justice, those objectives cannot be achieved by compromising in any way the effective protection of the rights of the defense of the addressees of the documents concerned (see, to that effect, judgment of 6 September 2018, Catlin Europe, C 21/17, EU:C:2018:675, paragraph 33 and the case-law cited).”

“41 The practical effectiveness of the right to refuse to accept a document to be served presupposes, first, that the addressee has been informed of the existence of that right and, second, that he has the full period of one week to assess whether he should accept or refuse to accept the document and, in the event of refusal, to return it.”

’45 However, the objective pursued by Article 8(1) of Regulation No 1393/2007, which is to avoid any discrimination between those two categories of addressees, requires that addressees who receive the document in a language other than that referred to in that provision be able to exercise their right to refuse to accept that document without suffering any procedural disadvantage in view of their cross-border situation.

“46 Consequently, if the document to be served is not drawn up in or translated into one of the languages referred to in this provisionthe period of one week provided for in Article 8(1) of Regulation No 1393/2007 shall not begin to run at the same time as the period prescribed for lodging an appeal under the legislation of the Member State to which the authority which issued the document belongs belongs as otherwise the practical effectiveness of this provision in conjunction with Article 47 of the Charter would be impaired. On the contrary, the period for lodging an appeal must, in principle, begin to run after the expiry of the period of one week provided for in Article 8(1) of Regulation No 1393/2007.”

Conclusion

Recipients of court documents from other EU countries should ensure that the foreign court strictly observes the rights of the recipient in accordance with the EU Regulation. In case of doubt, violations will result in the service being invalid. Time limits under the national law of the country of origin cannot begin to run until effective service has been effected on the addressee. This includes the recipient having the full one-week period for consideration under Art. 8 EUTMR 2007 [Note: The new EUTMR 2020 now provides for a two-week period in Art. 12].

Do you have any questions?

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International procedural law

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The following article provides an overview of how a judgment issued in the EU in civil and/or commercial matters can be enforced in other EU Member States – here using Germany as an example.

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Bid low and look high – How to deal with unfair offers in construction law

August 23, 2022/in Commercial law

LEGAL+ NEWS

Building law guide: Bid low and look up high - How to deal with unfair offers in building law

Problem description

Many fellow sufferers will be familiar with the following constellation: As the client or building owner, you have opted for the most favorable of the offers obtained, which are comparable in quality. It is not uncommon for the rude awakening to come with the final invoice at the latest. The final costs often exceed the offer many times over.

What went wrong? First of all, when it comes to the question of whether the “additional payment” can be demanded from the contractor commissioned, it is of course of central importance what was agreed in the contract ultimately concluded on the basis of the offer (see the following article).

But what happens if the contractor has submitted a so-called bait offer? This refers to an offer that the contractor has deliberately, i.e. intentionally, submitted at a particularly low price in order to “land” the contract.

It is surprising that this practice receives little attention in case law, although this approach is by no means rare.

Solution approaches

The starting point is the question of whether a bidding contractor is permitted to underestimate the quantities and expenses required to perform the work for which it is bidding in order to then take into account the additional quantities and expenses that will almost certainly be required later in the form of supplements. Such unfairly acting contractors regularly rely on gaps in the specifications to justify their subsequent additional charges.

In principle, this procedure is not permitted!

The strategy of“bid low and add high” is unlawful. The bidding company may not simply retreat to a particularly favorable calculation approach in order to improve its prospects of being awarded the contract with the disadvantageous consequence for the client that the risk of a subsequent supplement increases accordingly.”

This can be clearly inferred from the case law of the BGH.

By way of example, the notable judgment of the BGH of February 25, 1988 (case no. VII ZR 310/869), which has become known under the keyword “frivolity”, should be mentioned. In this judgment, the BGH stated (note: “plaintiff” refers to the “frivolous” bidder):

“The clients must have been aware that the soil and water conditions were only incompletely specified in the tender documents. Since the soil report did not contain any water permeability values and pumping tests had obviously not been carried out, only rough estimates could be considered from the outset. If the plaintiffs did not want to accept this in their calculation, they should have asked the defendant to supplement the tender documents accordingly. Therefore, there is much to suggest that the principles which the Senate has long developed for the case that a specification is recognizably incomplete for the contractor should be applied here (e.g. MDR 1966, 317 = NJW 1966, 498; most recently Senate judgment, MDR 1988, 43 = BauR 1987, 683).

Ultimately, however, this can be left to one side because a claim for damages is already ruled out here for another reason. The basis for a claim for damages based on culpa in contrahendo is always “disappointed trust” (Senate judgment, MDR 1966, 317 = NJW 1966, 498; cf. also Ingenstau/Korbion, VOB 10th ed. A § 9, para. 5). This cannot be said to be the case here because, according to the findings of the Higher Regional Court, the plaintiffs calculated “frivolously” in their offer and accepted the present dispute about the additional costs incurred. How correct this statement is is shown above all by the fact that the plaintiffs in their offer for the water maintenance costs for lot 2 only estimated DM 2.00 per running meter, while the plaintiff to 1 had shortly before demanded DM 75.00 per running meter for lot 1. The fact that in the case of the lot in question here it was not plaintiff 1 alone, but rather together with plaintiff 2, who submitted the offer, is irrelevant, since both bidders clearly had the calculation documents from the earlier offer for lot 1 at their disposal. The reason given for the difference in approach, firstly that the costs for the dewatering work for lot 2 had been partially allocated to the construction site equipment, and secondly that it had been possible to calculate “lower” because a lot of groundwater had already been extracted from the construction area by the dewatering for lot 1, does not explain such a wide divergence in the cost estimates for the two lots.

Rather, this disproportionately large, objectively unjustifiable difference shows that the plaintiffs ultimately calculated more or less “in the blue” – if not even “speculatively” – without any reasonable reference to the invitation to tender (cf. Senate judgment, MDR 1988, 43 = BauR 1987, 683, 685 = ZfBR 1987, 237, 238). In doing so, they not only significantly increased the risk that unforeseeable “additional claims” would later be made (in this case around one hundred times the bid price stated for the dewatering) (cf. Senate loc. cit.), but virtually conjured up the risk in order to be able to take advantage of it without jeopardizing their prospects of being awarded the contract. Anyone who acts in this way cannot invoke “disappointed trust”.

The following principles can be inferred from the above extract, which stand in the way of any subsequent proposals:

Gaps in supply must not be accepted in silence.
Calculating “frivolously” is prohibited.
Supplements cannot be based on tenders submitted “in the blue”.

Conclusion:

Anyone who finds themselves in the situation described above should, in addition to general contractual agreements, also carefully examine the original offer to determine whether it was a “frivolous” offer.

Do you have any questions?

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Corona as a disturbance of the business basis?

June 22, 2022/in Commercial law, Contract Law, Nicht kategorisiert

LEGAL+ NEWS

Corona as a disruption to the basis of business? Pacta sunt servanda - even in Corona times!

In two recent landmark rulings, the Federal Court of Justice clarified that the principle of “pacta sunt servanda” (“contracts must be honored”) must be observed even in unusual circumstances that no one had anticipated, such as the coronavirus crisis. That’s right!

Problem description: Corona as interference with the basis of the transaction?

Countless contractual relationships have not been implemented as planned since the start of the coronavirus crisis (see also this article). The government corona measures, for which none of the contracting parties are naturally responsible, were mostly to blame. This has raised the exciting question of how to deal with cases in which the main contractual service – e.g. the provision of the premises in tenancy law constellations – could still be provided despite the corona measures, but the use of the premises was not possible for the tenant in whole or in part as a result of the corona measures.

In the past two years or so, the courts of lower instances have all too easily awarded the burdened party – in the aforementioned example, the tenant – the right to reduce or even cancel their own obligation to perform (e.g. rent payment) with reference to Corona as a disturbance of the basis of the transaction. Often a blanket approach was taken and, for example, a division was ruled.

This approach is not legally tenable according to recent BGH rulings. This case law must be endorsed!

The BGH’s clarifications on corona as a disruption of the basis of the transaction in detail

Starting point: pacta sunt servanda

As already mentioned at the beginning, the Federal Court of Justice has clarified in two recent decisions, which point the way for the right to contract adjustment in accordance with Section 313 BGB (disturbance of the basis of the contract), in a welcome and clear manner that contracts must also be adhered to in the event of a subsequent serious change to the contractual basis.

Assessment of the agreed and/or contractual risk distribution – who bears the risk of use?

This applies in particular and of course if the risk realized as a result of the changed circumstances is legally and/or contractually assigned to a contracting party.

Using the example of commercial tenancy law, the BGH in its Judgment of January 12, 2022, Ref. XII ZR 8/21 , explains how strictly the obligation to comply with a concluded commercial lease agreement is to be understood.

The following applies:

The subject of this new ruling by the BGH on January 12, 2022 was the complete closure of a store that had become necessary due to official measures imposed by the coronavirus authorities.

For the tenant, this meant a complete loss of use of the commercial space he had rented for the period of closure.

On this issue, the BGH found that

the complete loss of the possibility of use does not constitute a defect in the leased property or a case of impossibility of surrendering the leased property, and
In the case of contractual relationships under tenancy law, the so-called usage risk lies with the tenant by law.

According to the BGH, the object of the usage risk is in particular the tenant’s expectation of being able to generate profits.

Even more significant is the further finding of the BGH that the assumption of the prescribed risk of use also includes circumstances occurring subsequently, e.g. in the form of official measures. The BGH stated:

“In the case of commercial leases, however, the risk of use of the leased property is generally borne by the tenant. This includes, above all, the risk of being able to make a profit from the rented property. If the tenant’s expectation of profit is not fulfilled due to a circumstance that subsequently arises, a typical risk of the commercial tenant is realized. This also applies in cases in which subsequent legislative or official measures result in an impairment of the tenant’s business operations (Senate ruling of July 13, 2011 – XII ZR 189/09 – NJW 2011, 3151 para. 8 f. mwN).”

Right to contract adjustment as a major exception

As a consequence of the fact that the risk of use also includes circumstances that occur subsequently and may have a serious impact, the BGH further clarified that a claim by the affected party for an adjustment of the contract cannot be considered under the aspect of interference with the basis of the transaction pursuant to Section 313 BGB if and to the extent that the circumstances in question, on which such a right of adjustment is based, are covered by the contractual risk assumed by this party.

The BGH has once again explained this with welcome clarity:

“In principle, however, there is no scope for taking into account the provisions on the frustration of contract (Section 313 BGB) insofar as it concerns expectations and circumstances which , according to the contractual agreements, should fall within the scope of risk of one of the parties. Such a contractual distribution of risk or assumption of risk regularly excludes the possibility for the contracting party to invoke a disturbance of the basis of the transaction if the risk materializes (Senate ruling BGHZ 223, 290 = NJW 2020, 331 marginal no. 37 with further references).”

Interim conclusion on the significance of corona as a disruption of the basis of the transaction

“Pacta sunt servanda” means that assumed contractual obligations generally continue to apply unchanged even in the event of a subsequent serious change in the circumstances underlying the contract.

In particular, if a certain contractual risk, e.g. the risk of use, has been assumed by one party in accordance with the agreements made, circumstances relating to this assumed risk cannot form the basis of a claim for contract adjustment.

NOTE:

Even if an interpretation of the circumstances of the individual case shows that the circumstances that occurred in the case in question “exceed” the risk assumed, this does not mean that the agreed distribution of risk becomes irrelevant.

Rather, in such cases, as the BGH has also made clear, the party bearing the risk according to the agreements made does not bear the realized risk alone. Based on the circumstances of the individual case, it must be determined how the parties are to participate in the consequences of the realized risk. The BGH stated:

“Contrary to the plaintiff’s view, the defendant in the present case did not contractually have the sole risk of use in the event of a pandemic-related closure of its retail store.”

What is important about the above statement is that the BGH only assumes that in this case the risk of use does not lie solely with the tenant, even in the case of complete closure.

Content and loss of the right to amend the contract

In the event that the affected party is exceptionally granted a right to adjust the contract in accordance with the prescribed criteria, the BGH has again attached great importance to the principle of pacta sunt servanda on the legal consequences side, i.e. with regard to the content of any contract adjustment.

In a further ruling dated March 2, 2022, ref. no. XII. ZR 36/21, the BGH initially pointed out that it is not sufficient for a right to adjust the contract that the changed circumstances in question exceed the contractually assumed risk. In its ruling of January 12, 2022 (case no. XII ZR 8/21), the BGH stated that

“Even if the business closure associated with the pandemic

If the impairment of use of the rented property cannot be attributed solely to the tenant’s risk of use, this does not mean, however, that the tenant can always demand an adjustment of the rent for the period of closure.”

Rather, it must be added that, again taking into account all the circumstances of the individual case, adhering to the contract unchanged appears to be completely unreasonable.

The agreed distribution of risk is particularly important for the question of reasonableness. The BGH explicitly highlighted this in this further coronavirus rulingfrom March 2, 2022 (case no. XII ZR 36/21):

“Whether it is unreasonable for the tenant to adhere to the unchanged contract also requires comprehensive consideration in this case, in which all circumstances of the individual case must be taken into account (Section 313 (1) BGB). An adjustment can only be demanded to the extent that one party cannot reasonably be expected to adhere to the unchanged contract, taking into account all circumstances of the individual case, in particular the contractual or statutory distribution of risk. According to Section 313 (1) BGB, the court must therefore choose those legal consequences that are reasonable for the parties , taking into account the distribution of risk (MünchKommBGB/Finkenauer 8th ed. § 313 para. 89) and by which a distribution of the realized risk in line with the interests of the parties is achieved with the least possible interference with the original provision. the least possible interference with the original regulation is established (BGH judgment of September 21, 1995 – VII ZR 80/94 – ZIP 1995, 1935, 1939 mwN).”

The aforementioned statements of the BGH contain another important and very welcome finding. This is that, in the event that a claim for contractual adjustment is upheld, an adjustment must be chosen that represents the least possible interference with what was originally agreed. The BGH has thus once again emphasized the great importance of the pacta-sunt-servanda principle.

According to the BGH, contract adjustments are “millimeters of work”.

Any adjustment to the content of what has been agreed requires special justification, which must be justified taking into account the criteria described above and weighing up all the circumstances of the individual case.

NOTE:

It follows logically from the above that the party entitled to claim under certain circumstances can also lose its right to adjust the contract again – and for good!

This applies if the party definitively rejects the right of adjustment offered to it. The latter was the case in the ruling by the BGH on March 2, 2022 .

In this case, the wedding celebration in dispute had to be canceled for the planned date due to coronavirus. The landlord of the wedding venue had offered alternative dates, but the bride and groom were no longer interested in these and only wanted a refund of the rent already paid.

The BGH has ruled that the claim for repayment of the rent does not exist. The couple should at least have agreed to postpone the party. As they had refused to do so, the obligation to pay the rent remained.

The BGH stated (from para. 41 of the judgment):

(…) However, it is an error of law that the Court of Appeal did not sufficiently consider whether the plaintiffs’ claim under Section 313 (1) BGB for an adjustment of the contract is limited to the postponement of the wedding celebration offered by the defendant, because this alone can establish a distribution of the pandemic risk in line with the interests of the parties with the least possible interference with the original arrangement. (…) However, it did not adequately take into account the fact that the defendant had already offered the plaintiffs a large number of alternative dates on March 26, 2020, including for 2021, which would have enabled the plaintiffs to make long-term plans, also taking into account the further development of the pandemic. The defendant repeated this offer to rebook the date free of charge on April 25, 2020. However, the plaintiffs were not prepared to enter into further negotiations with the defendant regarding an appropriate contract adjustment and rejected the offer to reschedule the date across the board. This shows that the plaintiffs were not interested in a solution that was in line with their interests, but only wanted to achieve a termination of the rental agreement and thus unilaterally shift the risk of canceling the celebration to the defendant.

(…)

The adjustment of the contract sought by the plaintiffs to the effect that they are released from their obligation to pay rent in whole or in part is therefore out of the question because they can reasonably be expected to accept the defendant’s offer to postpone the date of the planned wedding celebration, taking into account all the circumstances, including the contractual distribution of risk (Section 313 (1) BGB). (…)”

NOTE:

The aforementioned ruling from March 2, 2022 is also significant from another perspective. In this ruling, which was issued following the first Corona ruling of January 12, 2022 (BGH ruling of February 12, 2022, file no. XII ZR 8/21), which, as is well known, concerned commercial tenancy law, the BGH has now also ruled for the consumer sector that the principle of “pacta sunt servanda” must be applied very strictly and that an adjustment to the contract can therefore only be justified in absolutely exceptional cases.

Corona as a disturbance of the business basis? – Overall conclusion

Pacta sunt servanda! Even in Corona times.

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Action from abroad – service effective?

June 3, 2019/in Nicht kategorisiert

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Action from abroad - service effective?

Being sued is always unpleasant. However, if you have to deal with a lawsuit from abroad, the annoyance is considerably greater for various reasons, just to mention the often considerable costs. The first question you should ask yourself when you find a claim from abroad in your letterbox is: Is service of the claim effective at all? This is often not the case, which brings you various advantages (e.g. saving time, possibility of taking your own procedural steps, etc.).

Using the example of an action from another EU country, the requirements for effective service and the recommended reaction are described below.

Conditions for the effectiveness of service of process from (EU) foreign countries

According to the EU Service of Documents Regulation (Regulation (EC) No. 1393/2007 of the European Parliament and of the Council of November 13, 2007 on the service of judicial and extrajudicial documents in civil or commercial matters), there are two essential requirements for effective service:

As a rule, the complaint must be submitted in a German translation. Exceptions can only be considered if you as the defendant can prove that you speak the language of the plaintiff.
The complaint must be accompanied by the form in accordance with Annex II to the EU Service of Documents Regulation in German, together with instructions on the right to refuse acceptance.

The plaintiff must also be able to provide proof of service. If the foreign court sends the claim by ordinary mail, it is advisable in any case to ignore the incoming mail.

Legal situation if one of the requirements for effective service is not met

Defects in service have the following legal consequences:

Lack of translation of the complaint from abroad

If there is no translation, the following applies:

A right to refuse acceptance exists if the recipient does not understand the language of the original. In the case of English, there is some dispute here, but for all other languages it can be clearly stated that the German recipient can insist on a translation and may therefore refuse acceptance.

In principle, acceptance would have to be refused to the bearer (= post office).

This is practically impossible with a registered letter, as is usually the case, because the contents are not yet known at the time of delivery. The law therefore provides for a period of one week within which the document must be returned using the above-mentioned form, which must also contain the return address.

Lack of form and/or effective instruction in the case of legal action from abroad

As stated above, the translated complaint must also be accompanied by the form in German. If the form is missing or is not in German, there is no effective instruction.

In particular, the lack of effective notification, but also the lack of the form as such, constitutes a defect in service which, unless remedied, will render the service ineffective.

Options for action in the event of delivery errors

A foreign title (judgment) based on an action not validly served would be subject to an obstacle to enforcement in Germany.

As the defendant, you could therefore consider not taking any further action. This applies in any case if there is a lack of effective information. According to the case law of the European Court of Justice (ECJ ruling of 2.3.2017 (C-354/15), the mere expiry of a deadline cannot remedy the lack of instruction. The instruction must therefore be made up for.

However, the legal situation described above is not entirely certain. Especially not if the defendant remains completely inactive. This is because European procedural law endeavors to ensure the smoothest possible legal protection in the European area. The latter means that the plaintiff may be required to respond to the court in the country of origin despite the lack of service.

Conclusion / Recommendation

It seems advisable to act with caution even if service deficiencies are identified. This means that at least the foreign court should be made aware of any deficiencies in service.

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Procedural law: The inactive expert witness

July 15, 2019/in Commercial law, Nicht kategorisiert

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Procedural law: The inactive expert witness - tightening due to reform of expert witness law with effect from 15.10.2016

The inactive expert is a major dilemma for those affected. The legislator has certainly recognized this and, with a reform of the law on expert witnesses with effect from 15.10.2016 (Act of 11.10.2016, Federal Law Gazette I p. 2222), has anchored quite relevant tightenings in civil procedure law.

The following article provides an overview of the problems surrounding the inactive expert and the current legal situation since the recent reform of the law on expert witnesses.

Problem description: The inactive expert

Expert opinions are of considerable practical importance in the context of legal disputes. Particularly in liability law disputes, the question of the justification of a claim regularly depends on questions that the court called upon to decide cannot answer itself due to a lack of sufficient expertise. The court then inevitably appoints a (supposedly) suitable expert.

In this way, an expert regularly becomes the focus of civil proceedings, which often involve claims in the millions.

In view of the considerable importance of experts in civil proceedings, it is surprising that the Code of Civil Procedure offers little recourse if – as is often the case – the expert does not or only insufficiently fulfill his duties to prepare the commissioned expert report. In particular, a defaulting or even inactive expert effectively means that the civil proceedings in question come to a standstill and therefore represents a major nuisance for the parties concerned.

The legislator has recognized weaknesses in the legal framework and has introduced some notable tightening as part of a reform of expert witness law (Act of 11.10.2016, Federal Law Gazette I p. 2222) with effect from 15.10.2016. In the author’s initial experience, there has so far been a lack of consistent application of these stricter regulations by the courts.

Legal situation: The inactive expert witness in civil proceedings

The legal situation since 15.10.2016 is as follows:

Overview: Expert witness law of the ZPO

If an expert fails to prepare the commissioned expert opinion within a reasonable period of time, the question arises as to what legal basis exists for responding to this.

The relevant regulations in the Code of Civil Procedure (ZPO) are as follows:

The starting point is § 407 ZPO:

“§ SECTION 407 ZPO
Obligation to provide the expert opinion

(1) The person appointed as an expert shall comply with the appointment if he is publicly appointed to provide expert opinions of the required type or if he publicly practices the science, art or trade, knowledge of which is a prerequisite for the expert opinion, or if he is publicly appointed or authorized to practice the same.

(2) The person who has declared his willingness to do so in court shall also be obliged to provide the expert opinion.”

Accordingly, once appointed, the expert is legally obliged to prepare the expert opinion. According to Section 408 ZPO, reasons for refusing the expert opinion are limited to those that would also entitle a witness to refuse to testify. This constellation can be disregarded in the present case.

The consequences of failure to provide an expert opinion are set out in sections 409, 411 (para. 1 and 2) ZPO:

409 ZPO
Consequences of failure or refusal to provide an expert opinion

(1) 1If an expert does not appear or refuses to provide an expert opinion although he is obliged to do so, or if he withholds files or other documents, the costs incurred as a result shall be imposed on him. 2A fine shall also be imposed on him. 3In the event of repeated disobedience, the fine may be imposed once again.

(2) An immediate appeal shall be lodged against the decision.

The aforementioned standard deals with the case where the expert indicates that he does not wish to provide the expert opinion despite having accepted the obligation to do so. The mandatory legal consequence is consequently the imposition of a fine and the imposition of the costs resulting from the refusal

Of greater practical importance is § 411 ZPO, which regulates the procedure when a written expert opinion is commissioned – which is the rule:

411 ZPO
Written expert opinion

(1) If a written expert opinion is ordered, the court shall set a deadline for the expert to submit the signed expert opinion.

(2) 1If an expert who is obliged to provide an expert opinion fails to meet the deadline, a fine shall be imposed on him. 2The fine must be threatened in advance with the setting of a grace period. 3In the event of repeated failure to meet the deadline, the fine may be imposed again in the same manner. 4The individual fine may not exceed EUR 3,000. 5§ 409 Para. 2 applies accordingly.

The most important finding of this standard, which has been tightened as part of the reform of expert witness law with effect from October 15, 2016, is that the court must set a deadline for the expert witness to prepare the expert opinion from the outset (previously: “should”).

If the “person refusing to provide an expert opinion” fails to meet this mandatory deadline, a fine of up to EUR 3,000 “shall” be imposed. However, this only applies after he has first been threatened with the imposition of such a fine. In the event of another default, a fine can be imposed again – once (!).

The possibility of withdrawing or at least reducing the expert’s claim to remuneration is probably of the greatest relevance. This follows from § 8a of the Judicial Remuneration and Compensation Act(JVEG):

“§ 8a JVEG
Cessation or limitation of the right to remuneration

(1) The entitlement to remuneration shall lapse if the authorized party fails to notify the consulting body without delay of such circumstances that justify its rejection by a party, unless it is not responsible for the omission.

(2) The beneficiary shall only receive remuneration to the extent that his performance can be utilized as intended if he

1. has breached the obligation under section 407a (1) to (4) sentence 1 of the Code of Civil Procedure, unless he is not responsible for the breach;

2.has provided a defective service;

3. in the course of providing the service, has created reasons through gross negligence or willful misconduct which entitle a party to object on grounds of suspected partiality; or

4. has not completed his or her performance despite the imposition of a further fine.

Insofar as the court takes the performance into account, it is deemed to be usable.”

Accordingly, the expert’s remuneration can be withdrawn or at least reduced if he breaches the duties incumbent upon him. In the present context § Section 8a (2) no. 4 JVEG of particular importance:

This is because, in the event that a fine is imposed twice without result in accordance with Section 411 (2) ZPO, it follows that the expert’s remuneration can be withdrawn in this case. Further details on this regulation can be found in the underlying explanatory memorandum to the law (BT -Drucksache 17/11471; p. 259):

“Only in the event that the remedies described by law (administrative fine for failure to meet a deadline and for repeated failure to meet a deadline) remain unsuccessful should the claim to remuneration be reduced in accordance with the proposed number 4. In this context, a reduction seems preferable because in the case of partial services rendered on time and usable, complete elimination seems inappropriate. For the other cases in paragraph 2, too, the remuneration should not generally be completely waived, but (only) granted for the usable services. However, if usable services or parts of services are not determined, the entitlement to remuneration shall lapse completely.”

It can be stated that in the event of a failure to produce usable results, the claim to remuneration must be denied in full despite the double fine imposed.

Interim conclusion on the expert witness law of the ZPO

The existing regulations on the practically very important problem of inactive experts are surprisingly sparse. It is pleasing that the reform of the law on expert witnesses with effect from 15.10.2016 has introduced a sanction mechanism to be initiated as soon as the expert opinion is commissioned:

If an expert refuses to act despite being fined twice within the meaning of Section 4011 (2) of the German Code of Civil Procedure (ZPO), he is threatened with the complete loss of his remuneration if there is no usable result at the time of the fruitless expiry of the last deadline.

*The inactive expert: Interesting case law***

As outlined above, the legal situation regarding the inactive expert is extremely thin and incomplete. This makes the case law all the more important, from which the following (excerpts) can be taken.

OLG Stuttgart, decision of 2.5.2019 (8 W 103/19): Expert opinion assignment means “sovereign claim”

With regard to the legal status of the court-appointed expert, the Higher Regional Court of Stuttgart rightly pointed out in a recent decision that the expert holds a sovereign position:

“The appointment of an expert by the court is a state sovereign claim that is not subject to the rules of contract law (OVG Berlin, JurBüro 2001, 485; Hartmann, Kostengesetze, 48th edition, § 1 JVEG, para. 11).”

On the one hand, this finding by the Higher Regional Court of Stuttgart demonstrates the special duties of the expert. However, the flip side of this is the extremely weak legal position of the parties, who are dependent on the expert opinion. In particular, the expert opinion mandate does not have any protective effects in favor of the parties. It is therefore very difficult to establish a legal basis for a party’s claims (for damages) against the expert due to a delay in preparing the expert opinion. In the event of a grossly negligent incorrect expert opinion, the special provision of Section 839a BGB applies.

OLG Frankfurt, decision of June 9, 2011 (1 W 30/11): Admissibility of a complaint for failure to act if court/expert remains inactive for too long – so-called “do-what-complaint”

The Higher Regional Court of Frankfurt, among others, has correctly declared the possibility of a so-called complaint of failure to act to be admissible if an expert opinion is delayed for an unreasonably long period of time.the Higher Regional Court of Frankfurt (decision of June 9, 2011, case no. 1 W 30/11) stated in its first guiding principle:

“A complaint of failure to act is exceptionally admissible for constitutional reasons if the court of origin does not act or does not act with the required acceleration (so-called “do-what complaint”).

The point of contact here is not the expert, but the court, which fails to take appropriate action to persuade the expert to take action.

BGH, decision of July 27, 2006 (VII ZB 16/06): Proclamation of dispute against expert abusive and therefore inadmissible.

Irrespective of the fact that liability of the expert due to damages resulting from his inactivity is (probably) out of the question anyway, the BGH already clarified in 2006 that a third-party notice against an expert in the same proceedings is inadmissible. The corresponding guiding principle states (see decision of July 27, 2006, case no. VII ZB 16/06):

“The notice of dispute against a court expert in order to prepare liability claims against him for allegedly incorrect expert services provided in the same legal dispute is inadmissible.”

The background to the decision is cases in which, from the perspective of one party, it becomes apparent that an expert is (grossly) negligently preparing an incorrect expert opinion to the detriment of this party. In such cases, the expert may be liable in accordance with Section 839a BGB. According to the BGH, a third-party notice cannot be used to prepare a liability claim against the expert.

Conclusion on the inactive expert

The Code of Civil Procedure contains only a few provisions for the case of an inactive expert. The sanction mechanism introduced with the reform of the law on expert witnesses with effect from October 15, 2016 is particularly important and should therefore be emphasized once again.

In my opinion, the most effective means of encouraging inactive experts to fulfill their duties is to make it clear to the defaulting expert that he is at risk of losing his remuneration completely if he repeatedly fails to meet the deadline. Of course, this presupposes a number of things:

The court must have set a deadline for the expert to submit his signed report.
If the above-mentioned deadline is not met, the expert must have been threatened with a fine and given a grace period to complete the service.
This fine must be imposed.
The expert must have been threatened with a further fine and given a further grace period to complete the service.
The further fine must be legally binding.
The expert’s claim expires when the further administrative fine order becomes legally binding. It is not necessary to set a further deadline, nor is a general further examination of fault required.

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Evidential value of private expert opinions

July 16, 2021/in Commercial law, Nicht kategorisiert

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The probative value of private expert opinions

The evidential value of private expert opinions is very close to that of court expert opinions. In practice, this is often not the case:

Many courts tend to regard private expert opinions, i.e. expert opinions commissioned outside the proceedings, as a nuisance. These expert opinions, which are usually “labeled” as biased, are therefore in most cases considered to be of lesser value than court-commissioned expert opinions and are downgraded in the judgment with clichéd justifications. However, this approach, which is widespread in practice, is not covered by supreme court case law! In fact, expert opinions provided by the parties are important for the constitutionally guaranteed legal protection of the parties. This is the only way to fully uncover – not infrequent – errors in court reports.

The following article deals with the legal treatment of expert opinions not commissioned by a court in the context of or in preparation for civil proceedings.

Principle of the free evaluation of evidence

In order to be able to correctly classify the evidentiary value of private expert opinions, it is first important to understand how the court forms its conviction with regard to the legal case before it in accordance with the Code of Civil Procedure.

Pursuant to Section 286 (1) ZPO, the principle of free evaluation of evidence applies:

“The court must decide whether a factual allegation is to be regarded as true or not true, taking into account the entire content of the hearings and the result of any evidence taken. The judgment shall state the grounds on which the court’s conviction was based.”

Accordingly, the court forms its opinion “freely” on the basis of the collected content of the proceedings. “In particular, “freely” means that the court is free to assess the individual results of the evidence and, not least, all other perceptions gathered during the proceedings. This means, for example, that the court is not bound by any weighting of the individual pieces of evidence and other findings. For example, the court may attach more importance to a private expert opinion submitted to it than to the court expert opinion obtained on the same subject of evidence. It therefore follows from the principle of the free evaluation of evidence that the evidential value of private expert opinions can be higher in individual cases than that of a court-commissioned expert opinion.

However, “freedom” in the assessment does not mean that the court may disregard evidence. If this were the case, there would be a significant violation of the constitutionally guaranteed right to be heard. Further restrictions on the principle of the free assessment of evidence apply if this is expressly provided for by law, e.g. in Section 286 (2) ZPO:

“The court shall only be bound by statutory rules of evidence in the cases specified by this Act.”

One example of this is the legally standardized probative value of certain documents.

Overview: Types of evidence

The private expert opinion must be placed in context with the forms of evidence standardized in the Code of Civil Procedure. The Code of Civil Procedure recognizes the following forms of evidence: Inspection

- Visual inspection
- Proof by documents
- Witness evidence
- Expert evidence
- Party hearing

Visual inspection

“Visual inspection” means that the court forms an impression with its own eyes. The classic example is the so-called on-site visit. However, visual evidence can also be provided by taking photographs.

Proof by documents

Documents are the most reliable form of evidence. A statement of fact supported by documents means that the fact evidenced by the document is not in dispute in the first place, so that there is no need to take evidence in the true sense of the word. A distinction is made between private and public deeds. Private deeds “only” provide evidence of the declaration documented in the deed. Public deeds prove the entire documented process. The pitfall of this form of evidence lies in the fact that “full proof” presupposes that an indisputably or demonstrably genuine document exists, although in practice it is rare for the authenticity of a document to be called into question.

Witness evidence

Evidence through the testimony of witnesses is aimed at testifying to facts. The subject matter is concrete, direct perceptions of the witness.

Expert evidence

Evidence by experts means that knowledge that the court lacks is compensated for by the specialist knowledge of others. The expert is therefore an assistant to the court, which is why the classification as evidence in civil proceedings is misleading. Theoretically, the expert’s technical support can be obtained purely verbally, but in practice a written expert opinion is usually commissioned, which is then discussed verbally if necessary or at the request of a party.

The judge, not the expert, decides whether the disputed assertion is to be regarded as proven. The expert only has to provide the technical basis for the court’s assessment of the evidence.

Party hearing

Hearing the parties themselves is the weakest form of evidence. Although it is the most direct, it is also the least objective means of clarifying a disputed issue. Accordingly, this means of evidence is only admissible in rare cases (e.g. lack of evidence).

The legal situation regarding private expert opinions

Private expert opinions cannot be satisfactorily subsumed under the evidence listed above. The evidentiary value of private expert opinions is therefore not easy to determine.

There is no doubt that a written private expert opinion is a document, which can therefore be introduced as documentary evidence in a legal dispute. However, nothing is gained from this, as the evidentiary value as a document is limited to the fact that the expert has provided the expert opinion. It cannot be “formal” expert evidence because the evidence is not taken by the court within the framework of the relevant procedural regulations(Sections 402 ZPO ff.). What remains is the questioning of the private expert by way of formal witness evidence. But even this does not lead any further, because the expert as a witness can only “offer evidence” of his own perceptions (see Section 396 ZPO), e.g. of his impressions gained during a site inspection.

Case law “solves” the dilemma as follows:

According to the view that has always prevailed in case law, expert opinions submitted by a party are “only” substantiated (qualified) party submissions supported by documentary evidence.

As part of the free assessment of evidence under 286 ZPO described above, the court must include the private expert opinion in its assessment. The Federal Court of Justice made a revealing statement in its judgment of May 11, 1993(VI ZR 243/92):

“(…) The trial judge may certainly utilize a private expert opinion, but may not disregard the fact that it is generally not evidence within the meaning of §§ 355 et seq. ZPO, but rather (qualified) substantiated party submissions (…) the court’s own taking of evidence, in particular the obtaining of a court expert opinion, is only rendered unnecessary by a private expert opinion if the trial judge can arrive at a reliable answer to the question of evidence without legal error on the basis of this substantiated party submission alone (…). A private expert opinion can only be used as an expert opinion in the sense of evidence with the consent of both parties (see BGH, judgment of May 5, 1986 – III ZR 233/84 – NJW 1986, 3077, 3079) [BGH 05.05.1986 – III ZR 233/84]. (…)”

At first glance, the case law cited above may appear to cast doubt on the evidential value of private expert opinions. On closer inspection, however, the private expert opinion is (almost) equivalent to a court expert opinion. The private expert opinion can even make it unnecessary to obtain a court expert opinion if the court is able to arrive at a reliable answer to the question of evidence on the basis of its own expertise using the private expert opinion.

A ruling by the Higher Regional Court of Frankfurt am Main from April 3, 2017 (case no. 29 U 169/16) is also worth noting here. According to this ruling, a private expert opinion can be used as formal expert evidence under certain circumstances, e.g. if the court expressly summons the private expert as an expert witness and the opposing party fails to object to its use as expert evidence. The OLG stated:

“(…) Insofar as the defendant complains that the Regional Court assessed the statements of expert witness Z1 as expert evidence, this is not objectionable in the present case. During the hearing of expert witness Z1, the Regional Court stated that it was not only hearing expert witness Z1 as a witness in accordance with the summons of 7 July 2015, but also as an expert witness. The fact that the expert Z1 had previously acted as the plaintiff’s private expert did indeed constitute a reason for refusal within the meaning of 406 ZPO (…) however, the defendant did not assert a refusal despite being aware of the relevant circumstances. However, if a party fails to assert a reason for refusal, this can in principle no longer be asserted later as a procedural error within the meaning of § 404 ZPO, but merely represents a circumstance to be taken into account in the assessment of evidence (…).”

But the same applies elsewhere:

If the court lacks its own expertise and is confronted with specialist knowledge by means of a private expert opinion as a qualified party submission, it may not disregard this under any circumstances, but must review the results of the private expert opinion by means of formal expert evidence.

Private expert opinion versus court expert opinion

The above means the following for the evidentiary value of private expert opinions that are set against a formal court opinion:

Objections by the parties to the findings of a court expert must be taken into account by the court. Such objections can regularly arise from deviating private expert opinions, which are to be assessed by the court as so-called qualified party submissions as described above.

The court expert and the court must then deal with the content of the private expert opinion.

The court may not simply – as is often the case – accept the findings of the court expert with clichéd reference to, for example, “greater persuasiveness”. If the divergences between the private expert opinion and the court expert opinion cannot be resolved in a comprehensible manner, further clarification of the facts is required.

The above-mentioned obligation to deal with private expert opinions that deviate from the court opinion is based on the case law of the Federal Constitutional Court as the highest German court. In a ruling dated May 15, 2012(1 BvR 1999/09), the Federal Constitutional Court stated – not for the first time

“(…)Art. 103 para. 1 GG obliges the courts to take note of the submissions of the parties to the proceedings and take them into consideration when making their decision. It does not follow from this that they are obliged to expressly assess every submission of the parties in the grounds for the decision (see BVerfGE 88, 366 <375 f.> with further references). However, the essential factual assertions that serve the prosecution or defense must be dealt with in the reasons (see BVerfGE 47, 182 <189>). If a court does not address the essential core of a party’s factual submission on an issue that is of central importance to the proceedings in the reasons for the decision, this indicates that the submission has not been taken into account, unless it was irrelevant or obviously unsubstantiated according to the court’s legal position (see BVerfGE 86, 133 <146>).”

“(…) In view of the complainant’s objections based on several private expert opinions, the Court of Appeal should at least have given a logically comprehensible reason for its adherence to the court expert opinion (see BGH, decision of May 18, 2009 – IV ZR 57/08 -, juris, para. 7). There is no such justification. The Regional Court merely refers to the expert opinion and adopts its conclusions without investigating the objections arising from the private expert opinions. The uncritical adoption of the expert opinion of the court-appointed expert and the lack of mention of the private expert opinions in the challenged decision suggest that the Regional Court did not take note of the opposing viewpoint of the complainant, or at least did not consider it (see BVerfG, decision of the First Chamber of the First Senate of October 7, 1996 – 1 BvR 520/95 -, juris, para. 19). The violation continues in the order rejecting the objection to the hearing (…)”

In its ruling of January 21, 1997 (case no. VI ZR 86/96), the Federal Court of Justice described the court’s obligation to evaluate the statements deviating from the expert opinion in its ruling as follows:

“(…) Expert opinions are subject to the free evaluation of evidence(Sections 287 I, 286 I ZPO). Accordingly, the court may in principle deviate from an expert’s opinion if it is not convinced by the expert’s statements. However, if a court does not wish to follow the expert findings or conclusions of an expert, it must demonstrate the relevant expertise (see Senate, NJW 1988, 3016 = VersR 1988, 837 (under II 2a)).

A permissible deviation of the court from an expert’s report always requires the presentation of the relevant considerations in the sense of a plausible and comprehensible justification in the judgment (cf. for the case of contradictory expert opinions Senate, NJW-RR 1987, 1311 = BGHR-ZPO § 412 Obergutachten 1 (under II 2b)), which may not be based on the fact that the court makes use of its own expertise which it is not entitled to. (…)”

It follows from this:

The court is not obliged to deal with the opinion of the private expert on every single point. However, in addition to the court expert opinion, it must also take into account the corresponding (contradictory) statements in the private expert opinion on all key points and explain this in a comprehensible, i.e. verifiable, manner in its reasons for judgment.

Conclusion on the probative value of private expert opinions

The admittedly somewhat confusing legal situation with regard to the evidentiary value of private expert opinions is that private expert opinions are – almost – equivalent to court expert opinions.

As described above, experts serve to provide the court with missing expertise. In the absence of its own expertise, the court may not simply give preference to the expertise of a court expert over the differing expertise of a private expert.

The party adversely affected by the content of a court expert opinion therefore has the option of at least “neutralizing” the court expert opinion by means of private expert objections. It is necessary and sufficient for the private expert to justify his or her findings that deviate from the court expert opinion in a comprehensible and professional manner with reference to the court expert opinion. The aim must be to cast doubt on the court expert’s findings. If this is successful, the court must investigate these doubts.

Incidentally, it also follows from the above legal situation that the costs of private expert opinions may be reimbursable. It is true that case law still regards this as an exception. However, if it is easy to justify that it was necessary to obtain a private expert opinion in order to provide your own expert opinion with the necessary quality, there is a good chance that you will be able to claim these costs later as necessary legal costs.

Do you have any questions?

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Data protection

BGH ruling “Influencer II”

September 19, 2021/in Nicht kategorisiert

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BGH ruling "Influencer II"

In its “Influencer II” ruling, the Federal Court of Justice clarified in response to rejected claims by the VSW (“Association of Social Competition”) that the influencer only has to provide an advertising label for their post if they receive a consideration from the company in question. The press release states:

In the press release states:

“(…) With regard to commercial acts in favor of third-party companies, the assumption of a violation of Section 5a para. 6 UWG is ruled out because the defendant did not receive any consideration for the contested contributions and these contributions therefore satisfy the overriding special provisions of Section 6 para. 1 no. 1 TMG, Section 58 para. 1 sentence 1 RStV and Section 22 para. 1 sentence 1 MStV (see the above comments on proceedings I ZR 125/20). Accordingly, there is also no violation of No. 11 of the Annex to Section 3 (3) UWG. “

Do you have any questions?

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About Daniel Meier-Greve

Entries by Daniel Meier-Greve

LEGAL+ NEWS

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Guide to GmbH law: Managing director activities in the GmbH – On the duties and liability risks of the managing director of a GmbH

A. Introduction

B. The duties of the managing director

I. Starting point: Business Judgement Rule

II Duty to manage the company diligently and properly

1. promotion of the purpose of the company

2. binding to the law (so-called legality obligation)

3. no binding commitment to contracts

III Duty of loyalty

IV. Exemption from and reduction of liability

1. allocation of responsibilities if there are several managing directors

2. delegation of duties

3. instructions from the shareholders

4. finally: liability relief in the employment contract

C. Cases of internal liability of the managing director

I. Increased liability for damages in cases of § 43 para. 3 GmbhG

II Compensation obligations in the event of a breach of the duty to file for insolvency, section 15a (1) InsO

D. The external liability of the managing director

I. External liability under civil law

1. quasi-contractual liability due to so-called culpa in contrahendo (c.i.c.), §§ 280 para. 1, 311 para. 3 BGB

2. liability in tort, Section 823 (1) and (2) BGB

3. damages due to delay in filing for insolvency

II External liability in tort for breaches of duties under public law

1. tax liability

2. liability for the payment of social security contributions

III Finally: Liability for fines arising from breaches of supervisory duties

E. Conclusion

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Problem definition

The judgment

Conclusion

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Problem definition

The “LKW-Walter” ruling by the ECJ

Conclusion

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Corona as a disturbance of the business basis? – Overall conclusion

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*The inactive expert: Interesting case law***