A Federal Court of Justice decision of January 10, 2017 (Case VIII ZR 33/16) led to a judgment of Frankfurt am Main Higher Regional Court of January 21, 2016 (15 U 181/12) becoming final. The ruling had dismissed the claims for damages filed by deu B.u.S. Verkehrsbetriebe für Personenbeförderung AG as buyer of a company. Heuking Kühn Lüer Wojtek had successfully represented the seller Gerhard Nau against the buyer. The decision brought a 13-year-long dispute to an end that had lasted for eight years at Marburg Regional Court alone.
The trial, in which the client was represented by a team led by Dr. Frank Mitzkus in second instance since 2012, revealed serious uncertainty of ordinary courts when dealing with corporate acquisition contracts. In 2001, deu B.u.S. had acquired a medium-sized bus company from the seller Gerhard Nau, who wanted to retire. A comprehensive catalog of guarantees with limitation of liability was agreed. When the limitation was reached, deu B.u.S. filed a complaint for additional claims under pre-contractual liability (cic) due to profit misrepresentation. After obtaining three different expert reports on the market value, Marburg Regional Court order the seller to pay damages including interest of almost two million euros in the summer of 2012.
Following several proceedings held at Frankfurt am Main Higher Regional Court, the seller's appeal finally succeeded. The appeals court discovered a serious procedural error, because the first-instance judgment at Marburg Regional Court had not been signed by all three judges. On the merits of the case, it denied a claim under cic since the catalog of guarantees was final. Guarantee liability, however, was refused because the specifically claimed damage had already been compensated pre-judicially by means of a purchase price reduction determined in binding manner by an arbitrator.
Counsel to Gerhard Nau (second instance)
Heuking Kühn Lüer Wojtek:
Dr. Frank Mitzkus (Lead),
Dr. Goya Tyszkiewicz, all Hamburg