3.4.1 Contractual liability

The individual investor can bring a contractual claim on the basis of the prospectus if his contractual counterparty to the securities sales contract is the issuing company X N.V. or lead manager Y N.V. or other sponsoring banks depending on the structure of the issue.

In case of a guichet issue,1 X N.V. is the counterparty; the syndicate bank merely acts as an intermediary for the issuer. In that case, the bank has the option to guarantee the issue but it does not become the counterparty of the investor. If the syndicate takes over the securities, the securities are actually issued to the banks. The subsequent resale of the securities to the investors makes the banks counterparty to the securities sales contract. The investor can bring a claim against the sponsoring bank from which he purchased his securities. He can request the court to annul the contract with the issuer or sponsoring bank respectively and/or demand payment of damages on the basis of error of facts (dwaling),2 fraud (bedrog) or breach of contract (wanprestatie).3

In practice, only professional investors subscribe in their own name and at their own expense (op eigen naam en voor eigen rekening). Therefore, they qualify as a contractual counterparty and they can subsequently bring a contractual claim against issuer X N.V. or sponsoring bank Y N.V. The non-professional investors, however, are not party to the sales contract; their securities brokers act in their own name (and at the investor's expense) and therefore qualify as a contractual party. The securities broker is the only person who can bring a claim against the issuer or the baraks. The discussion of contractual prospectus liability is limited at this point because most prospectus liability claims of consumers are based on a tort claim.4