No liability for negligently incorrect internal expert opinion

Aug 29, 2025 Benn-Ibler Rechtsanwälte

The Supreme Court (OGH) had to deal with the question of whether a management consultant is liable for internal expert opinions that later became relevant in connection with a bond issue and insolvency.

In 2017, the plaintiff subscribed to a bond issued by the subsequently insolvent AG (issuer). The defendant had previously prepared reports on behalf of the issuer's group holding company, including a brand valuation and over-indebtedness tests. These reports were expressly confidential and intended only for the client.

The plaintiff claimed that the reports had been deliberately prepared incorrectly and had created the appearance of solvency. She had relied on the economic data published by the issuer regarding its creditworthiness and assets as well as the solvency of the company. Had she been aware of the existing material insolvency or the incorrect presentation of the issuer's balance sheet figures, including the existing equity capital, and the fact that the unqualified audit opinion based on this was ultimately issued incorrectly, the plaintiff would not have purchased the bonds.

This caused damage to her and other investors. For this reason, the plaintiff sought damages from the management consultant.

No liability for negligence

The Supreme Court clarified that expert opinions that are clearly intended for internal use only do not have any protective effect in favor of third parties. Since the plaintiff had not relied on the expert opinions, liability for negligent preparation of expert opinions does not apply.

According to the Supreme Court, the fact that the person providing the information must abstractly expect that the information will somehow reach outsiders is not sufficient to establish liability towards third parties.

Possible liability for intentionally false expert opinions

The situation is different if the expert opinions were intentionally prepared incorrectly in order to deceive investors or to enable a delay in insolvency proceedings. In this case, liability may arise for immoral damage (Section 1295 (2) of the Austrian Civil Code (ABGB), Section 1300 ABGB) or as a contribution to a breach of duty under insolvency law (Section 69 of the Austrian Insolvency Code in conjunction with Section 1301 ABGB).

The court of first instance did not make sufficient findings as to how the expert opinion assignments came about, what the defendant's managing director's expectations were, whether the expert opinions were incorrect, and whether they were the cause of the plaintiff's investment decision.

In the absence of these findings, the Supreme Court overturned the decisions of the lower courts and referred the case back for further proceedings.

Supreme Court 7 Ob 69/25k (June 25, 2025)