In this new specialist article, our real estate experts Dr Markus Heider, Katharina Meeser and Patrick Wüstefeld, LL.M. (Stellenbosch) analyse the development of case law on the seller's duty of disclosure in the transaction up to the "data room" decision of the Federal Court of Justice in September 2023. They highlight important aspects that must be taken into account, particularly in the context of due diligence:
The scope of the seller's duties of disclosure always depends on the individual case. The buyer's legitimate expectation that the seller will inform him about a significant circumstance is of decisive importance in determining this. Relying on the buyer's expectation harbours a high degree of legal uncertainty for the seller. To date, case law has provided only partial clarity.
The trend in case law is towards an ever-increasing extension of the seller's duty of disclosure.
From a lawyer's point of view, the seller is therefore advised to provide the buyer with extensive information.
