What are some statements of fact
Regarding the requirements for a factual determination by the appeals court
The plaintiff is asserting tortious claims for damages against the defendant, a stock corporation under Turkish law, because of the acquisition of shares in the defendant. In November 1999, the plaintiff acquired shares in the domestic stock of the defendant, which is based in Turkey, for an amount of DM 28,350. In the presence of witness S, the plaintiff handed over the purchase price to D and received the shares and a payment receipt in return.
In return for the return of this receipt, D handed the plaintiff a statement of holdings in April 2000, according to which he owned 360 shares in the defendant. In a legal letter from May 2010, the plaintiff terminated the participation. His request for repayment of the investment amount was unsuccessful.
The plaintiff alleges that D appeared on behalf of the defendant as an employee of the defendant's business card. In the presence of witness S, D had deceived him into the fact that it was a safe investment with a repayment guarantee from the defendant upon request within three months. The plaintiff demands to be placed as if he had not made the capital investment.
LG and OLG upheld the lawsuit. On the appeal of the defendant, the BGH overturned the appeal judgment and referred the matter back to the OLG for a new hearing and decision.
The revision rightly complains that the OLG did not make its own determinations on the prerequisites for the vicarious agency of the M because it erroneously assumed a binding to the determinations of the LG on the occurrence of the D according to § 529 Para. 1 No. 1 ZPO (§ 286 ZPO).
According to Section 529 (1) No. 1 ZPO, the court of appeal is bound by the facts established by the court of first instance, unless specific indications justify doubts as to the correctness or completeness of the findings relevant to the decision. Concrete clues that are not bound by the lower court findings can result from procedural errors that the court of entry made when establishing the facts. In the present case, the appeal correctly points out that the findings of the LG, based on the content of the testimony of witness S, that D appeared as an employee of the defendant, are not covered by the wording of the testimony recorded in the minutes of the taking of evidence.
Witness S was not questioned before the regional court as to whether the seller of the shares had identified himself as an employee of the defendant. The LG's finding that witness D had expressly appeared on behalf of the defendant and identified himself as their employee, including by presenting a business card, cannot be matched either by the information provided by the plaintiff himself or by the information provided by witness S in the December appointment Reconciling 2012. The contradiction between the content of the evidence recorded in the minutes and the assessment of the evidence by the LG had to give rise to doubts about the correctness of the findings, which the OLG should have dispelled.
Findings on the occurrence of D against the plaintiff are not dispensable because the defendant would have undisputed in the first instance that D was its employee who was bound by instructions. In its response to the lawsuit, the defendant denied that the broker was its employee. In the pleading of March 2011, the defendant emphasized that the agent was self-employed and was not an employee of the defendant. He had the power of attorney to sell shares, to receive funds and to provide general information to interested parties. In the statement of appeal, the defendant again asserted that the seller of the shares did not act for them. The defendant has always denied that the seller was dependent on it.
The appeal judgment was then to be set aside and the matter had to be referred back to the OLG for further negotiation and decision so that the necessary findings can be made up. The legal examination of whether and to what extent a liability of the defendant comes into consideration is only possible on the basis of determinations of the more detailed circumstances of the respective individual case, in particular taking into account the content of a conversation that may have been held with the plaintiff when purchasing the shares, possible.
- The full text of the decision is on the BGH websites released.
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