The Federal Court of Justice (BGH) again had to decide on liability issues in the area of capital investment law in 2021 and was able to further specify its previous case law. Recent developments in this area are always significant for investors whose investment has suffered losses.
Liability for prospectus errors
Prospectuses for capital investments are always at the center of legal disputes. As a rule, this involves the correctness and completeness of the information contained therein and the question of who is responsible for it. This responsibility can result from special legal regulations (prospectus liability in the narrower sense) or from other circumstances, such as the culpable use of an incorrect prospectus (prospectus liability in the broader sense). The Federal Court of Justice continues to draw a clear distinction between these two grounds for liability and makes it clear that narrow prospectus liability excludes broad prospectus liability, cf. decision of October 12, 2021 – XI ZR 26/19.-
Withdrawal of capital by the operator of a plant
If a significant amount of capital is withdrawn from an investment model by its operator, the operator is obliged to inform at least the investors who are obliged to pay further installments about the circumstance of the withdrawal of capital. If this obligation is not complied with, the investors have a claim for damages insofar as they would not have paid any more installments in the knowledge of the withdrawal of capital, cf. judgment of January 28, 2021 – III ZR 157/19.
Liability for damages due to breach of trust
Capital investments are often organized in the legal form of so-called public companies, which do not have their own legal personality, but in which the shareholders themselves are in the foreground. If the managing director of such a company commits an act of embezzlement, it is not the company that is harmed, but the investors as their shareholders. After the end of their participation, they can demand compensation from the managing director, cf. judgment of January 28, 2021 – III ZR 157/19.
Horwath & Meier specialize in the areas of banking and capital market law and corporate law. We will be happy to represent you in all matters relating to capital investments