16.05.2019
When does the limitation period begin for damage caused by incorrect investment advice?
The three-year limitation period according to § 1489 ABGB generally begins with knowledge of the damage and the person who caused it, even if the injured party cannot yet quantify the amount and is not aware of all the consequences of the damage, or these have not yet fully occurred. According to established case law of the OGH (2 Ob 233/12x; 8 Ob 66/14k), the damage in the case of incorrect investment advice lies in the fact that the investor's assets are made up differently due to incorrect information from the advisor than they would have been if the advisor had acted in accordance with their duty. The damage from incorrect investment advice therefore occurs as soon as the financial product that was not actually wanted is purchased.
The Supreme Court (1 Ob 50/19p) recently had to answer the legal question of when this limitation period began for a foreign currency loan. An investor had taken out a loan in Swiss francs, but was inadequately informed about the risk.
The Supreme Court remained true to its line (8 Ob 109/17p; 5 Ob 177/15p; 1 Ob 88/16x; 3 Ob 240/16i) regarding the statute of limitations for investor losses: The decisive factor for the question of the statute of limitations for claims arising from advisory errors in investment and/or financing concepts is the point in time at which the injured party realises that the overall concept is not risk-free, or not to the extent promised, contrary to the assurances. The decisive factor for the start of the statute of limitations is therefore knowledge of the riskiness of the entire model.
The three-year limitation period according to Section 1489 ABGB had already started to run with the consultation because the investor had realised from that point on that the foreign currency financing he had entered into was associated with risks and in particular that his loan liability had increased due to exchange rate changes. A coverage gap had already been forecast at that time and there was therefore a risk that the investor would not be able to pay off the loan amount at the end of the term of the foreign currency loan. The investor knew at that time that an (allegedly) promised essential feature of the financing was not present. His knowledge of the damage was not changed by the fact that he was not specifically recommended to convert the foreign currency loan into euros at that time, but was only given the option of doing so.
The three-year limitation period according to § 1489 ABGB begins to run when the damage (and the person who caused it) is known. In the case of errors in advice that lead to the purchase of an unwanted investment product, this knowledge is given when the buyer becomes aware that he has purchased a financial product that is riskier than he intended (contrary to the advisor's assurances). The point in time at which the investor becomes aware of the damage depends on the circumstances of the individual case (OGH 1 Ob 151/00p).