A seller does not regularly satisfy its duty of disclosure to the buyer simply by "somehow" posting documents about the fact requiring disclosure in an electronic data room - Federal Court of Justice ruling of 15.09.2023 - V ZR 77/22
The Federal Court of Justice (BGH) has issued an important decision on the effects that the performance of due diligence by the buyer has on the seller's duty of disclosure. In this decision, the BGH states: A seller does not fulfill its duty of disclosure to the buyer simply by somehow placing documents containing the information subject to disclosure in an (electronic) data room. This is not sufficient.
In the view of the BGH, a seller in such a case only fulfills its disclosure obligations towards the buyer if (i) the buyer had the opportunity to take note of the relevant documents/information in an (electronic) data room and (ii) the seller could at the same time have the legitimate expectation that the buyer would actually gain knowledge of the circumstances subject to disclosure by inspecting the data room. If the fact to be disclosed is a circumstance that is of very considerable economic importance for the buyer and if the fact to be disclosed is not readily apparent from the documents provided in the data room, the seller must also inform the buyer of this in the opinion of the BGH.
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