Provision of information and liability for information
Definition and significance
Die Provision of information refers to the act of providing information, i.e., truthful or knowledge-based details, by a person or institution to another party. In the legal context, the provision of information is of particular importance in contract law, corporate law, and data protection law. The liability for information on the other hand, encompasses the legal consequences that arise when damage is caused by the provision of incorrect, incomplete, or misleading information.
Legal basis for the provision of information
Contractual and statutory information obligations
The obligation to provide information may arise from various legal bases:
- Contractual duty to provide information: Parties may contractually agree to provide certain information. This is common in commercial agency, service, or brokerage agreements.
- Statutory duty to provide information: The law stipulates explicit information obligations in numerous areas. For example, Section 242 of the German Civil Code (BGB) (principle of good faith) in connection with secondary obligations requires the provision of information where necessary to enforce or safeguard the rights of the entitled party.
- Special provisions: Specific laws provide for information duties for certain groups of people or situations, e.g., § 384 HGB (German Commercial Code), § 666 BGB (Agent must inform the principal), or § 1605 BGB (mutual duty of disclosure between maintenance creditors and debtors).
No general duty to provide information
A general and unlimited duty to provide information does not exist under German law. The obligation to provide information always requires a special statutory or contractual basis. Without such a basis, a party cannot be forced to provide information.
Scope of the information
The scope of the information to be provided depends on the respective legal relationship and the specific obligation. The information must be complete, accurate, and up-to-date. Partial or false information may have liability consequences. The affected party must disclose the required information within reasonable limits, avoiding disproportionate burdens.
Limits of the provision of information
There are legal restrictions on providing information, in particular due to data protection rights, trade secrets, and personal rights. The interests of the party obliged to provide information must always be safeguarded and balanced against the legitimate interests of the entitled party.
liability for information
Principle of liability for information
Liability for information governs the responsibility of a person or institution for damages arising from incorrect, incomplete, or misleading information. The legal grounds for liability are found in general civil law, in particular in §§ 280 et seq. BGB (contractual liability) and § 823 para. 2 BGB in conjunction with protective laws (tort liability).
Liability cases
Liability may generally arise in the following constellations:
- Breach of contractual duty to provide information: If contractually agreed information is provided incorrectly, incompletely, or late, the party obliged to provide information is liable for damages according to the general principles of contract law.
- Precontractual liability (culpa in contrahendo, § 311 para. 2 BGB): Even before a contract is concluded, relevant information may be owed during contract negotiations. Incorrect statements can give rise to claims for compensation.
- Tortious liability: If a party provides information in legal transactions without being obliged to do so, and the recipient justifiably relies on it, liability under § 823 BGB may arise in the event of damage, for example, in cases of deception (§ 826 BGB) or violation of a protective law.
- Organ and official liability: There are special liability rules regarding the provision of information for company executives, notaries, auditors, or public officials.
Fault and damage
A precondition for liability for information is generally fault (intent or negligence) and an adequately causal damage as a result of the incorrect information. Liability may be excluded if the provider can prove the information was given to the best of their knowledge and belief, and after careful review.
Legal consequences of liability for information
Claim for damages
Anyone who suffers financial loss as a result of wrongful and culpable provision of information can claim compensation pursuant to § 249 BGB. The extent of the damages claim is determined by the differential loss, i.e., the difference between the financial situation with and without the incorrect information.
Causality assessment
For a successful claim for damages, it must be established that the damage was caused by the incorrect information. The injured party must show and prove that they would have made a different decision if the correct information had been provided.
Possible limitation and exclusion of liability
Liability may be limited or excluded by contractual provisions, where legally permissible. Classic examples are limitation of liability clauses or contractually agreed liability caps. However, such limitations are excluded under mandatory statutory provisions.
Special information-related regulations in German law
Commercial and corporate law
In commercial and corporate law, there are various special information rights and obligations, e.g., shareholders’ claims for information against the company or its bodies (§ 51a GmbHG, § 716 BGB for partnerships). Violation of these rights can lead to liability for the obligated party.
Family and maintenance law
In the field of maintenance law, there is a far-reaching duty of disclosure between obligors and beneficiaries (§ 1605 BGB). Information is the basis for determining the amount of maintenance. False or omitted information can have serious consequences for those involved and trigger claims for damages.
Data protection law
Under the General Data Protection Regulation (GDPR), data subjects have the right to information about the data stored about them (Art. 15 GDPR). In the event of incorrect or refused information, claims for damages may arise.
Practical relevance and information
Diligence and documentation
The provision of information should always be carried out with due diligence, especially if legal or economic decisions are based on it. Comprehensive documentation of the informational basis serves as evidence of proper conduct and can reduce liability risks.
Burden of proof
In the event of a dispute, the burden of proof for incorrect or negligent provision of information, the damage, and the concrete causality is generally borne by the entitled party or injured party. However, in individual cases, relief from the burden of proof or a reversal of it may apply.
Summary: The provision of information and the associated liability for information are central elements of German civil law. They govern the obligations to provide information and the responsibility for damage due to false information. Scope and limits are determined by the respective statutory and contractual regulations. Protecting affected interests and careful fulfilment of information obligations are crucial to minimize liability risk.
Frequently asked questions
What legal requirements must be met for valid provision of information?
For legally effective provision of information, it is first necessary that a corresponding claim to information exists. This can arise from the law (e.g., §§ 242, 259, 666 BGB, § 34 BDSG, Art. 15 GDPR), contractual agreements, or good faith. The person obliged to provide information must be able to provide the requested information within the scope of their ability. The information must also be provided completely and truthfully; information that is incomplete or manifestly incorrect does not meet the legal requirements. Depending on the legal basis, special formal requirements or deadlines may exist, such as written form or provision of information within certain periods. The scope of the information may generally not exceed what is necessary for the enforcement of rights, so as not to infringe the data protection or personal rights of third parties.
When and to what extent is the party obliged to provide information liable for incorrect information?
The party obliged to provide information is liable if, intentionally or negligently, they provide incorrect, incomplete, or delayed information, thereby causing damage to the entitled party. Liability can arise from contractual provisions (c.i.c., §§ 280, 282, 286 BGB) or under tort law (§§ 823 et seq. BGB). The requirements for proving fault depend on the circumstances of the individual case; however, in general, simple negligence is sufficient to establish liability. In the case of deliberately untruthful information, there is often in addition to civil liability also criminal responsibility, especially in cases of fraudulent conduct (§ 263 StGB – fraud). The obligation to pay damages relates both to direct financial loss and to any consequential loss caused by the incorrect information. This can be far-reaching, especially in a business context.
Is it possible to limit or exclude liability for information?
A contractual limitation or exclusion of liability for information is generally permissible within the scope of discretionary law. However, such provisions may not violate mandatory legal requirements, in particular § 276 para. 3 BGB (liability for intent). To the extent that exclusion of liability is agreed for gross negligence or intent, it would not be effective. In addition, in dealings with consumers and under standard contract law (§§ 305 et seq. BGB), strict limits apply; impermissible clauses are then void. In individual cases, it must be examined whether and to what extent liability can be effectively reduced, for example, by precise definition of the scope of the information or by expressly clarifying what the information is based on (e.g., “to the best of my knowledge and belief”).
What are the diligence requirements for the provision of information?
The diligence required when providing information depends on the circumstances and interests involved in the individual case. As a rule, the obligor must carefully and conscientiously gather and communicate all relevant information. The required diligence is determined by the significance and scope of the information. For information with far-reaching financial consequences, such as details on creditworthiness or financial status, particularly high standards apply. Appropriate examinations and investigations must be evidenced by the party providing the information; omissions or superficial statements generally give rise to liability. In cases of doubt, it is advisable to provide concrete evidence of the accuracy and completeness of the information.
How can the entitled party claim damages for incorrect information?
If the party obliged to provide information fails to fulfil their duties properly and this causes damage, the entitled party can assert claims for damages. To do this, they must demonstrate and prove that the information was objectively incorrect or incomplete, that a loss occurred, and that there is a causal link between the incorrect information and the damage suffered (the so-called causality test). Asserting the claim is generally done out of court by written request; in case of dispute, an action may be brought before the competent civil court. In some cases, the burden of proof may be reversed or eased in favour of the entitled party, e.g., if the obligation to provide information was not fulfilled and the relevant facts are exclusively within the sphere of the party providing the information.
Does liability for information also apply to third parties who are not direct contractual partners?
Liability for incorrect information may also apply to third parties if so-called protective effects in favour of third parties exist. This is particularly the case if it is evident that the information is provided in the interest of and in relation to a third party and that this party is worthy of protection. It is required that the provider of information expressly includes the third party in the protective scope of the information. In cases of breaches of secondary obligations arising from contracts, precontractual or statutory obligations, third parties may thus also be entitled to assert claims, provided that the further requirements (damage, fault, causality) are fulfilled.
What are the consequences of late provision of information for liability?
Delayed provision of information may give rise to liability if the entitled party suffers a financial disadvantage or other loss as a result of the delay. This is especially relevant when deadlines apply, for example, in connection with limitation periods for claims, business opportunities, or exclusion periods. Liability is subject to the same conditions as for materially incorrect information: there must be wrongful conduct (at least negligence), and the late provision of information must be causally linked to the damage suffered. In certain cases, the delay may give rise to a claim for damages in addition to the primary obligation to provide information.
