BGH on compensation for bribes
Posted by Andreas Winkler on April 10th, 2018
Bribes are immoral and justify compensation claims for damages. These can be directed at recipients as well as those who initiated the bribes.
According to sec. 826 of the B?rgerliches Gesetzbuch (BGB), i.e. the German civil code, a person is obligated to pay damages if they deliberately cause harm to another in a way that offends public morality. This also includes agreements involving bribes. We at the commercial law firm GRP Rainer Rechtsanw?lte note that these kinds of agreements are null and void. In its ruling of January 18, 2018, the Bundesgerichtshof (BGH), Germany"s Federal Supreme Court, clarified that such cases give rise to damages claims in relation to not only bribed employees or others who have received payment indirectly but also the business associate initiating the bribe (Az.: I ZR 150/15).
If the plaintiff asserts a claim for damages on account of kickback arrangements made without his knowledge by an authorized representative, then he bears the burden of producing evidence. The BGH stated that this burden of proof is satisfied if the plaintiff can present sufficient evidence pointing to the conclusion of a bribery arrangement. The defendant contesting the kickback arrangement is then subject to the secondary burden of proof, i.e. he needs to demonstrate that there was no such arrangement.
In the instant case, the plaintiff dealt in furniture from Asia. She hired a forwarding company to transport furniture from Asia to Europe that later merged with her firm. The furniture dealer had authorized a since deceased man to take care of the day-to-day administration associated with the forwarding company. In this context, there were increases in the freight costs owed by a certain premium. The furniture dealer neither knew of this arrangement nor did she consent to it. The payments were supposed to ensure that the man in question would continue to take care of freight orders for the plaintiff. The then insolvent furniture dealer later demanded the premiums back.
The Oberlandesgericht (OLG) Hamm [Higher Regional Court of Hamm] dismissed the claim, but this ruling was overturned again by the BGH. The latter held that the plaintiff had adduced sufficient evidence indicating a kickback arrangement. The defendant therefore bore the secondary burden of proof, which it satisfied. The defendant not only disputed the kickback arrangement, but also presented a different set of facts. It was said that after gathering evidence the decision was at the discretion of the trial judge. Said judge was found to have not sufficiently assessed all of the circumstances, with the result that the case was referred back to the OLG.
In cases involving bribes or other immoral acts causing harm, lawyers who are experienced in the field of industrial property rights can offer advice.
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