What's happening now: News

We are happy to keep you informed about current developments in case law and the latest decisions of the Federal Court of Justice. Here you can read the most important updates from our daily legal practice and rulings at various levels of jurisdiction.

Federal Court of Justice: Conditions for an unavoidable error of law in the case of a failed capital investment
April 2025

In a new ruling dated March 20, 2025 (III ZR 261/23), which is also significant for the liability of lawyers, the Federal Court of Justice (BGH) dealt with the requirements for an unavoidable error of prohibition in cases in which the defendant provider of a capital investment has its investment model redesigned by a specialist lawyer for banking and capital market law due to criminal investigations. If the legal advice can be considered reliable under the circumstances, it is not generally necessary to obtain a written expert opinion or an assessment from BaFin.
Damages for delay even in the event of assignment of the claim for compensation in lieu of performance - Group debt collection
March 2025

The burden of a liability to a third party is recognized as constituting damage in the civil law sense. It does not matter what the injured party and the third party have agreed on the time of performance and the manner in which the liability is to be fulfilled, as the Federal Court of Justice has now clarified. This also applies if the injured party does not owe the third party any direct payment, but merely assigns the claim for compensation against the injuring party to him. Furthermore, the BGH considers it permissible and expedient to commission a debt collection agency or lawyer in the event of late payment even in simple cases, even in cases of group debt collection.
Negative interest rates on current accounts permissible with transparent regulations
February 2025

On February 4, 2025, the Federal Court of Justice ruled that so-called custody fees or "negative interest" may be permissible for consumer current accounts if they are based on transparent clauses, but not for call money or savings accounts.
Insolvency challenges and state immunity
January 2025

On 16.01.2025, the IX Civil Senate of the Federal Court of Justice referred the question to the European Court of Justice in an insolvency law avoidance case (case no. IX ZR 60/24) against the Polish tax authorities as to whether Art. 6 (1) EU Insolvency Regulation contains an implicit waiver of the principle of state immunity by the EU Member States with regard to the recognition of foreign insolvency proceedings if an insolvency administrator asserts under the applicable insolvency law that legal acts (such as payments) are contestable due to creditor prejudice.
Federal Court of Justice: permissible substitution of the claim in dispute in an objection to a default judgment
December 2024

According to an interesting decision of the Federal Court of Justice in terms of procedural law, it is permissible to only pursue a different claim with the objection after a default judgment has been issued than before. The restriction in appeal proceedings, according to which an appeal is inadmissible if it is not also directed at least against the specific complaint arising from the first instance judgment, therefore does not apply to the objection.
Copyright: no freedom of panorama for drone photographs
November 2024

Drone images are not subject to the freedom of panorama under copyright law, as clarified by the Federal Court of Justice in its ruling of October 23, 2024. Images of copyrighted sculptures, installations, paintings, etc. that were created using a drone may therefore not be used commercially, published in magazines or made publicly available online, e.g. on websites or in social media, without the consent of the author.
Unit price contract: Construction schedules are not instructions within the meaning of Section 2 (5) VOB/B.
October 2024

The Federal Court of Justice set out the requirements for a change to the construction process in the unit price contract within the meaning of Section 2 (5) VOB/B in its ruling of 19.09.2024. According to this, a change order requires a legal declaration from which the intention to unilaterally change the contract can be inferred. According to the BGH, the interpretation according to the general rules also shows that reactions to construction schedule disruptions, including in the form of amended construction schedules, do not constitute an amendment in this sense. In addition, the BGH confirmed that a claim for damages pursuant to Section 6 (6) VOB/B requires the breach of a contractual obligation by the client, not merely an obligation.
Commencement of limitation period in the event of improper use of funds in the contract
September 2024

According to a recent ruling by the Federal Court of Justice, if an agent uses funds provided for investment at a bank for an improper purpose, the client's claim for restitution against him only becomes due when it is established between the parties that the funds were not invested in accordance with the order and the agent is therefore no longer in a position to do so. The mere improper use does not start the limitation period if the client has no knowledge of this.
Necessary assertion of a value in dispute enabling an appeal against non-admission in the courts of fact
August 2024

On 11.07.2024, the First Civil Senate of the Federal Court of Justice made an interesting decision for civil procedural practice. According to this decision, the parties must already assert a complaint (and thus an amount in dispute) of more than € 20,000.00 in the factual instances and present the factual requirements for this if they want to keep the path to the third instance open. Furthermore, if the appeal judgment does not contain any facts, the appellant's submission must be assumed in the appeal against denial of leave to appeal proceedings, which can make it easier to assert a violation of the right to be heard.
Medical liability: no reversal of the burden of proof in the case of a (simple) breach of the duty to provide therapeutic information
July 2024

The reversal of the burden of proof in the event of a simple error in the assessment or securing of findings in accordance with Section 630h (5) sentence 2 BGB does not apply if a treating physician has breached the obligation to provide therapeutic information, according to the VI Civil Senate of the Federal Court of Justice in a recent ruling. Sections 630a et seq. of the German Civil Code have not changed its previous case law on the reversal of the burden of proof in medical liability law. The distinction between an error in making a diagnosis and an error in providing therapeutic information still depends on where the focus of the medical error lies according to the circumstances of the particular case.