A GmbH's claim for damages against its auditor in the event of breaches of duty during the audit of the financial statements depends on the auditor's fault and contributory negligence on the part of the GmbH itself, according to the Stuttgart Higher Regional Court in its judgment of 22 February 2022 (12 U 171/21).

The complaint was filed by an insolvency administrator of the assets of a limited liability company (GmbH), which used a pyramid scheme to submit a fictitious business activity to the auditor. Pursuant to § 323 para. 1 (3) HGB, there is a claim for damages in case of intentional and negligent breach of duty.

However, the failure to check balance confirmations alone cannot constitute causality giving rise to liability: the fraudulent directors would most likely also have falsified balance confirmations for submission, the damage would have occurred in the same way.

Even if causality existed, there is a far predominant contributory negligence on the part of the GmbH pursuant to § 254 para 1 BGB, since the GmbH deceived the auditors from the outset and, in the case of documents falsified in advance, there is only slight negligence on the part of the auditor. Also, for reasons of equity, the auditor should not be liable towards the GmbH for damage caused by itself.