Heinrich-Alexander Graf von MoltkeMittelverwendungskontrolle und Dritthaftung

About this book deutschenglish

The control of the use of funds is a protective instrument which, according to its basic function, serves to protect both the investors and the investment vehicle against misdirection of the assets of the investment vehicle by its management. Although it mostly appears in the context of capital investments due to the expenses associated with its establishment, its scope of application is not limited to capital investments. Apart from the special cases regulated by law, it can be found in particular in the notarial custody but also in idealistically motivated funding models.

The central problem to be analyzed with in this study is not unknown in principle: An investor invests in an investment project, this investment project fails, the investor tries to minimize his loss by asserting claims for damages. If the failure of the investment project leads to the insolvency of the investment vehicle, the investor tries to assert his damages against another, solvent party. Those third parties involved in the investment project move into the center of attention and with it increasingly also the contractual controller of the use of funds.

Since the control of the use of funds is usually carried out by persons with special professional qualifications, this study is part of the legal-dogmatic discussion on the basis of expert and professional liability. The starting point is the question of whether and on what basis a person is liable to a third party for damages on a contractual or quasi-contractual level, while a contractual relationship exists only with another party. Liability under tort law in accordance with the provisions of §§ 823 et seq. of the German Civil Code (BGB) is to be considered as well as a contractual or quasi-contractual liability of the controller of the use of funds.

While the first part of this study examines in-depth the various possibilities for the design and forms of controlling the use of funds and the associated legal problems, the second part of this study is reserved for the third-party liability of the controller of the use of funds vis-à-vis investors.

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