Federal Court of Justice rules on (model) conciliation applications

On June 18, 2015, the BGH will decide in three proceedings whether (model) conciliation applications meet the requirements for conciliation applications that can suspend the statute of limitations pursuant to Section 204 (1) No. 4 BGB. The subject of the proceedings are claims by investors in closed-end real estate funds for damages from the defendant financial services company.

In the conciliation application in dispute, the plaintiffs submitted, among other things:

“I/we assert claims for damages arising from incorrect investment advice. The background is the investment in the real estate fund F. GmbH & Co. KG (F.). … The above-mentioned real estate fund was presented to me/us and it was suggested to me/us that it was a safe and profitable investment. The risks and disadvantages of investing in this real estate fund were not explained. …”

The Higher Regional Court of Celle followed the decision of the lower court (Regional Court of Hanover, judgment of December 3, 2013, 7 O 125/13) and decided the following on April 14, 2014 (OLG 11 U 314/13):

“(…)1 The conciliation application (Annex B 4) has only suspended the limitation period to the extent that breaches of duty are specifically named therein. This is because only an application for conciliation that describes the asserted claim with sufficient precision suspends the limitation period (Staudinger/Peters, BGB, Neubearbeitung 2009, Section 204, para. 61; Palandt/Ellenberger, BGB, 72nd edition 2013, Section 204, para. 19). The suspension of the statute of limitations pursuant to Section 204 (1) no. 4 BGB – which the plaintiffs have to prove – requires that the claims asserted in the conciliation proceedings can be distinguished and delimited from other claims by their identification. Contrary to the opinion of the plaintiffs, it is not important in this respect whether, from the point of view of the subject matter of the dispute, it is a matter of a uniform factual situation. From a natural point of view, the advice that preceded the investment decision constitutes such a uniform life event, which cannot be divided into individual duties to provide information and advice with regard to the subject matter of the dispute (see BGH, judgment of October 22, 2013, XI ZR 42/12, cited in juris, paras. 17 and 19). The statute of limitations pursuant to Sections 194 et seq. BGB, however, is subject to the substantive claim within the meaning of Section 194 (1) BGB. The subject matter of the dispute can therefore include several substantive claims, each of which is subject to an independent limitation period (see BGH, loc. cit., para. 25). In the case of an allegation of incorrect investment advice, each alleged breach of duty constitutes such an independent claim (see BGH, judgment of March 24, 2011, III ZR 81/10 cited in juris, para. 15 with further references). The limitation period for these individual claims must be treated separately, so that both the commencement and the suspension of the limitation period must relate to the individual claim and thus incidentally to the individual breach of duty. It is therefore necessary for the defendant to be able to identify the individual breaches of duty on the basis of which the relevant application was made. If a uniform claim, i.e. a specific breach of duty, is asserted, the substantiation of the corresponding submission can be made up for in the contentious proceedings. However, in the case of several individual claims that are not based on a uniform claim and are therefore independent, individualization after the expiry of the limitation period cannot be made up for in the subsequent court proceedings (see BGH, loc. cit., paras. 16 and 17, as well as Senate decisions of 22 May 2012, 11 U 14/12, of 4 February 2014, 11 U 259/13, and of 28 March 2014, 11 U 278/13) (…)”.

We will report on the outcome of the proceedings.

Date notice of the BGH