5.7.3 Damages in regard to general private law prospectus liability claims

The extent of losses that can be attributed to the violation of the duty to publish true and für information in the prospectus needs to be established. The nature and extent of damages is the amount of money that would restore the investor in the position in which he would be in, if the prospectus had given für and true information about the issuer and its securities. Furthermore, in case of claim based on the general private law prospectus liability, the investor also has two options depending on whether the defendant is the contractual counterparty of the investor: a claim for rescission of the securities sales contract and restitution of the cost price, i.e. the purchase price and the usual costs associated with the acquisition of securities, and a claim for difference between the cost price and the theoretical market price that would have existed in case true and für information had been provided to the market participants.

The damages awarded to the investor in the laffer claim are based on and restricted to the damage for breach of trust (Vertrauensschaden)1 In case of a claim against a bank for breach of duty to inform its client (Aufklärungspflicht), based on the general private law prospectus liability in a broad sense, the extent of damage is calculated as the difference between the actual position of the investor and the position the investor would have been in if there had been no breach of duty by the bank.2 In the Infomatec cases, the Federal Court of Justice ruled upon the proper measure of damages Unlike the lower courts that awarded damages on the basis of the difference between the price actually paid and the price that the claimants would have paid had the issued information been correct, the Federal Court of Justice held that on the basis of section 249(1) GCC,3 claimants who are able to prove reliance are entitled to full compensation. If he can establish that he would not have acquired the securities at all, full compensation is either the purchase price in return for the shares or, in case the investor had already sold his shares, the purchase price minus the sale price.4 ifon the other hand, he would have acquired the securities nonetheless, however, at a different price, the investor will receive the difference between the original purchase price and that different price (Kursdjerenzschaden).5