Case law

  • Case Details
    • National ID: XI ZR 167/05
    • Member State: Germany
    • Common Name:link
    • Decision type: Other
    • Decision date: 23/10/2007
    • Court: BGH (Supreme court)
    • Subject:
    • Plaintiff:
    • Defendant:
    • Keywords:
  • Directive Articles
    Doorstep Selling Directive, Article 3, 3.
  • Headnote
    If the purchase price paid for the financed object is overpriced in a manner contrary to public policy, this does not per se lead to an irrebuttable presumption that the financing bank had knowledge of the overpricing, even if the financing bank and the seller or distributor of the object were cooperating in an institutionalised manner.
  • Facts
    The plaintiffs are contesting the forced execution into their property initiated by the defendant home savings and loan association on the basis of a notarised document and apply for a judicial declaration with respect to the purchase and the financing of an apartment.

    In 1992 investment brokers acquired the plaintiff and his wife as customers of a tax saving scheme. They were induced to purchase an apartment for tax saving reasons without having to invest any existing own capital. The brokers worked on behalf of the H. GmbH [transl.: Ltd.], which had been distributing investment objects financed by the defendant on a large scale since 1990. During the negotiations, the brokers on 13 October 1992 inter alia let the plaintiffs sign a “client visit report”, which stated that the rental income from the apartment amounted to DM 339 per month. In addition, the plaintiffs entered into an “object and financing procurement agreement” with the H. GmbH and signed an offer for a loan contract directed at the defendant, in which the rental income of the apartment was also stated as being DM 339. The notarised offer for the purchase made by the seller on 22 October 1992 – whose annex showed that the current rental income from the apartment amounted to only DM 220,84 and the net income only to DM 183,34 – was accepted by the plaintiffs by notarised declaration on 9 November 1992. To finance the purchase price (DM 90.519), which included the expenses for a renovation to be effectuated by the seller, the plaintiffs already had entered into a loan contract with the defendant on 26 October / 4 November 1992.

    According to the agreement the purchase was to be financed by an advance “bullet loan” worth DM 105.000 and two building savings agreement over a sum of DM. 52.000 and DM 53.000 respectively. As agreed in the contract, the plaintiffs joined the rental pool existing for the housing estate. To secure the advance loan and the two building loans becoming due after the allotment date of the building savings agreements, the plaintiffs by notarised document dating from 13 November 1992 had a land charge registered to the benefit of the defendant amounting to the net worth of the advance loan together with interest, accepted personal liability for the repayment of the loan and submitted themselves to the immediate forced execution into their private property.

    After the plaintiffs had no longer paid their due instalments after the advance loan had been disbursed, the defendant in 1997 terminated the loan agreement, demanded payment of DM 108.364,75 und initiated the forced execution into the private property of the plaintiffs.

    With their claim the plaintiffs request the court to declare the forced execution on the basis of the notarised document of 13 November 1992 inadmissible insofar as it is directed at any other asset than the apartment and apply for the declaration that the defendant was not entitled to any claims against them under the loan agreement and that it was – versus the reassignment of the apartment - liable for compensation of any damage arising from the conclusion of the loan agreement and the contract of sale. Their claim had been dismissed in the lower instances.
  • Legal issue
    The Federal Court of Justice has overruled the appellate court’s judgement and has referred the case back for a new decision.

    The defendant’s liability due to the breach of a precontractual duty of information with respect to the financed transaction could not be denied. In case of an institutionalised cooperation between the financing bank and the seller or the distributor of the financed object, the investors can under alleviated conditions successfully invoke a duty of information arising from the superior knowledge of the financing bank with respect to a deceit to the detriment the investor by false statements of the investment broker, seller or fund initiator or false statements in the fund prospectus. The superior knowledge of the bank is rebuttably presumed, if the seller or the fund initiator, the brokers working on their behalf and the financing bank are cooperating in an institutionalised manner, the financing of the investment was also offered by the seller or the broker – even if the offer was made by a special financing broker designated by him – and the falseness of the statements made by the seller, fund initiator or the brokers working on their behalf or printed in the sale or fund prospectus is objectively so evident that it - under consideration of general experience of life - creates the impression that the bank virtually had intentionally ignored the fraudulent misrepresentation.

    According to the facts established by the appellate court, these requirements are met in the case at hand. Taking into account the (according to the plaintiffs) fraudulent misrepresentation made by the broker with respect to the generated rental income, a duty of information of the defendant and a resulting claim for damages is to be considered under the aspect of superior knowledge about the risks of capital investment creating a duty of information.

    According to the facts established by the appellate court, which are binding to this court, the plaintiffs have been deceived by the broker, who had falsely stated a monthly rental income of DM 339 in the client visit report. This statement, which was also contained in the loan agreement, was evidently false. As can be deduced from the annex added to the notarised purchase offer dating from 22 October 1992, the rent for the apartment purchased by the plaintiffs was actually DM 220,84 and the net rental income only DM 183,34. In the light of this considerable difference between the guaranteed and the actual rental income, the falseness of this statement, which was also contained in the loan agreement, could not be overlooked by the defendant if it had not intentionally ignored it.

    Insofar as the plaintiffs have been induced to enter into the contract by these evidently false statements about the rental income an according knowledge of the defendant is rebuttably presumed, since the other requirements for an alleviation of the burden of proof are met according to the facts established by the appellate court. The seller of the apartment, the defendant and the investment brokers were cooperating in an institutionalised manner, since they had planned the sale of apartments and the financing of their purchase by the defendant by way of multi level marketing. The basis of this planned cooperation based on a division of labour was a common marketing concept of the defendant and the H. Group, which included the investment and the loan brokers as well as the administrator of the rental pool. In their negotiations with the customers, the brokers posed as agents of the seller as well as commercial agents of the defendant. The financing concept used by the brokers usually provided a full financing of the purchase via an advance loan granted by a bank which was to be redeemed by two building savings agreements with different allotment dates.

    The defendant had denied any superior knowledge of the false statements of the brokers with respect to the generated income and has offered evidence. It must thus be given the possibility to refute the presumption.
  • Decision

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