Die Dritthaftung staatlich anerkannter Gutachter im deutschen und schweizerischen Recht (The Liability of Officially Recognized Experts Towards Third Parties in German and Swiss Law)
Andrea Büchler and Markus Müller-Chen (eds.), Private Law: National – Global – Comparative, Festschrift für Ingeborg Schwenzer zum 60. Geburtstag, Bern: Stämpfli (2011), 1565–1580
17 Pages Posted: 2 Nov 2012
Date Written: April 2, 2011
Expert opinions by lawyers, accountants, auditors and other professionals are important pieces of information in business practice, and decision makers frequently rely upon such opinions in reaching their decisions. In cases in which the content of an expert opinion is later discovered to have been incorrect or misleading, the question arises whether the expert can be liable towards third parties, i.e. parties other than that which contracted with him for the opinion.
This article compares the liability regimes developed for such cases in German law on one hand and in Swiss law on the other hand. Despite the otherwise frequent similarities between these two legal systems, their approach to third-party liability differs significantly: While German case law traditionally relies on the figure of a contract with protective effects for third parties (Vertrag mit Schutzwirkungen für Dritte), thus basing the expert's liability on the contract he has entered into with his client, the Swiss Supreme Court has recently expressly rejected this approach and relies on tort law (Vertrauenshaftung) instead. The article specifically focusses on the category of 'officially recognized' experts which German case law has subjected to a particularly stringent liability, and elaborates whether this category deserves a similar special role in Swiss law.
Notes: Downloadable document is in German.
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