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From the magazine SZW-RSDA 5/2017 | S. 661-671 The following page is 661

Besserstellung der Revisionsstelle in der aktienrechtlichen Verantwort­lichkeit? – Prozessrechtliche Bemerkungen zu Art. 759 Abs. 2 E-OR

The draft for the revision of the stock corporation law proposes to limit auditor liability. In case the audit firm has merely caused damage by negligence, it shall be liable only up to the amount it would have to pay due to a recourse claim (draft art. 759 (2) CO).

The proposal, which dates back to 1983, does not reliably limit auditor liability. This is because art. 148 (3) CO provides that amounts which cannot be recovered from one joint and several debtor must be borne by the other debtors. However, the injured party would have to complete a procedural obstacle course to reclaim its damage from the auditor based on art. 148 (3) CO.

In addition, it will be no longer sufficient for claim­ant to prove auditor liability, i.e. negligence, damage and causality. In the same lawsuit the liability of the officers and directors has to be established, and finally the internal shares of the joint and several debtors will have to be assessed. All these complex issues will have to be solved…

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