Federal Court of Justice: Conditions for an unavoidable error of law in the case of a failed capital investment

The defendant had raised loans from investors, initially as a sole trader and later for the GmbH he had founded, with the value of which he acquired real estate. The loans and interest were to be repaid from the profits made. The defendant did not have a license from the Federal Financial Supervisory Authority (BaFin). In 2012, the plaintiff investor concluded a loan agreement with the defendant for € 15,000.00. In the following year, the public prosecutor's office initiated investigations against the defendant based, among other things, on the suspicion of a violation of the German Banking Act (KWG) by conducting unauthorized deposit transactions. During the investigation proceedings, the defendant instructed his defense lawyer, who is also a specialist lawyer for banking and capital market law, to revise his investment model. The lawyer drew up a new investment concept based on subordinated loans, which in principle did not require a permit, together with contract forms and an exposé explaining the investment model. In 2014, the parties transferred the plaintiff's loan into a new loan relationship with the qualified subordination clause drafted by the lawyer for € 17,000.00 with the GmbH managed by the defendant. At the same time, the plaintiff concluded a further loan with the GmbH, and a third loan in December 2015. In the summer of 2015, the public prosecutor's office deemed the new concept not to require a license and discontinued investigations in this regard. The GmbH later became insolvent, whereupon the plaintiff terminated the loans without notice and demanded reimbursement of his payments from the defendant, as the subordination clause was invalid. The defendant invoked a culpably unavoidable error of omission (Section 17 StGB).

The BGH overturned the appeal judgment, which had affirmed claims for damages, and dismissed the claim due to a lack of fault on the part of the defendant.

The BGH was able to leave open the question of sufficient transparency of the clause and thus the effectiveness of the subordination clause, as the defendant was in any case in an unavoidable error of prohibition in accordance with Section 17 sentence 1 StGB. Civil liability pursuant to Section 823 (2) BGB was therefore also ruled out.

The decision shows that, contrary to widespread opinion, a written expert opinion is not required per se for a plausibility check in addition to the involvement of a specialized, competent lawyer. The decision therefore also has considerable significance for the area of lawyers' liability.

The information provided by a relevant specialist lawyer should generally be regarded as reliable, i.e. objective, careful, responsible and based on a dutiful examination of the factual and legal situation. However, the person seeking advice may not rely on the information provided by a lawyer solely because it is favorable to his or her project. Neither a courtesy opinion that is commissioned merely as a safeguard and is not open-ended nor information that is clearly superficial and inadequate can exonerate an acting party. A detailed expert opinion is generally required to establish an unavoidable error of omission, particularly in the case of recognizably complex facts and difficult legal issues.

A case-by-case examination is always required to determine which requirements must be met to clarify whether an investment model requires a license and how legal advice or information must be structured in order to be able to rely on it. This also applies to the question of whether the lawyer must put the result of his work in writing so that it can be further checked for plausibility.

By commissioning a specialist lawyer for banking and capital market law to draw up a new, license-free contract, the defendant had initially done what was necessary to ensure that the investment model would no longer be subject to the licensing requirement in future. In principle, he was entitled to trust that he would be able to carry out activities without a license on the basis of the lawyer's concept and the contracts and documents drafted by him. The mandate to draw up a clause for a license-free transaction also included checking whether the clause was effective. The necessary thoroughness of the lawyer's work was obvious due to the considerable amount of time spent and the lawyer's findings from the criminal investigation proceedings. The defendant also did not have to question whether the public prosecutor closing the investigation had checked the effectiveness of the clauses. Since there was no reason for the defendant to have any doubts, there was no need for a further plausibility check of the drafting of the commissioned specialist lawyer for legal correctness, e.g. by means of a written expert opinion. Under the present circumstances, the defendant did not have to explain the consultation in detail during the trial.

Nor could the defendant be reproached for not having contacted BaFin, as the involvement of BaFin is a possible, but not the only means of choice for assuming the unavoidability of a prohibition error.

A decision that is well worth reading, which strengthens the practice of the legal profession and gives further contours to questions of unavoidable prohibition error in investment law.