Die Gutachterhaftung gegenüber dem Dritten im deutschen und schweizerischen Recht

Abstract

The dissertation presents the liability of an expert towards third parties in a comparative way. The study mainly focuses on the liability of experts engaged by private people, excluding those acting in civil or criminal trials. The aim is to analyze the topic in German and Swiss legal systems and to evaluate the remedies that these legal systems with their different torts law regimes offer to the case.Due to the lack of information in technological and scientific matters in today s environment, expert reports play a crucial role to make monetary decisions. However, these reports have the risk to contain inaccurate information. In this case, the question from the liability perspective is: "If a person relies on an expert report and is a victim of inaccurate information that was included in the report, can he/she have claims against the expert?" There is no doubt about the contractual liability of the expert towards the party of the expert contract. The problem arises not in the case of a contractual party but when another third party claims damages from the expert. In this case, the privity of the contract rule will hinder the third party to claim damages on contractual bases.The thesis provides an insight to the key issues regarding the expert and the liability towards its contractual party in German and Swiss legal systems. Then it explores the liability of an expert towards third parties. In jurisprudence and doctrine, different remedies are given to solve the issue to this problem, which are discussed in the dissertation. The discussion is mainly about the legal grounds and the limitations of this liability. In expert cases, the third parties mislead by the reports generally face economic losses. Under German torts law, claim for pure economic losses are only admissible under strict conditions. The German courts try to solve the expert cases with the legal institute of "contract having protective effect on third parties", but the doctrine criticizes this solution by claiming that jurisprudence expands the contractual liability in an unacceptable way. On the other hand under the Swiss torts law, the reasoning of a pure economic loss is not always easy. To overcome this problem, a liability on trust has been introduced and applied in expert cases.The thesis examines in detail the different legal grounds that could be claimed by a third party against an expert. These are defined as the contract having protective effect towards third parties, the liability of torts, the liability based on trust, the extension of the contractual liability to find out if the legal systems with their different legal grounds for the expert cases really lead to different solutions or base on the same reasons.Within this context, the thesis is filling an important gap to define the conditions and the extent an expert should be held responsible towards third parties. Beside the legal grounds of the liability, it is important to reduce the extent of liability of the expert in a reasonable way, because the number of the third parties relying on a wrongful expert report could be very high. It is very controversial to accept the liability of an expert towards a third party that he or she has never met. Therefore, the protected group of people should be limited according to reasonable criteria s in order to assure the existence of the 'expert branch' and to hold the difference between a contractual liability and a torts liability.