Karlsruhe Federal Court

The Karlsruhe Federal judges reject this instance judicial view however and annul the verdict again. The Court of Appeal assumed that the prospectus, at least in terms of the liability order is unclear and ambiguous. This will create the impression, then enter a personal liability of the investor if the company get into liquidity problems and the plot already was exploited. The Supreme Court does not follow these models. He argues that not can be removed the brochure with the formulation, liability of shareholders with their personal wealth only arise after the recovery of the land of Fund. It is not statement for themselves alone as formulation but the brochure represent a total system to consider, according to the German Federal Supreme Court. This, the linguistic context is not clear that an investor only fall into a personal liability for land recovery. The use of the term “first” could itself not considered yet be found, that meant a temporary primary liability.

Also a certain order could leave cannot be derived. This view of the BGH is justified with the juxtaposition of company assets and the personal assets of the investor in the descriptions of the prospectus. A limitation of the liability of investors was intended from the outset, they must find mention in the agreements with the banks. However, this was not the case. Also, there is no indication could be found that the Bank was obliged to use the land as a priority.

For thorough review of the prospectus an investor would have allowed assume according to the Bundesgerichtshof, a personal use for the debt to worry about only in case of failure of the society and their liquidation. The Supreme Court does not share the view of the Court of appeal, that a reduction of the parts for recycling of parts of society resulting from the testimony of a proportional liability of investors. Already in earlier judgments he clarified, payments from company assets to benefit the investors without a direct reduction of the proportion of the equity. So the personal liability of the shareholder decreased in the external relationship, if the outstanding loan debt under the personal liability amount drops. Therefore, a claim for damages, eliminated based on prospectus errors. Once again can be summarized that the preparation of a prospectus of emission should be well thought through, because only single formulation in doubt can be placed on the gold scales and decide on the question of liability. Contact: Bernd rechtsanwalts GmbH Wilhelm-Weber-str. 39 37073 Gottingen phone: + 49 (0) 551 495 669-0 fax: + 49 (0) 551 495 669-www.bernd-rechtsanwaelte.de manages the Bernd rechtsanwalts GmbH with locations in Dusseldorf, Gottingen and Hannover 19 and represents companies, initiators, financial institutions and investors in all aspects of economic and capital market law. Focus this the corporate and project finance, in particular the concept of capital market products and the creation of prospectuses as well as the financial services and capital market law, in particular in connection with the enforcement and defense of claims and disputes with BFin.