Mangler ved virksomhedsoverdragelse: Købers undersøgelsespligt og sælgers oplysningspligt

Abstrakt

This thesis examines deficiencies in acquisitions regarding buyer’s duty to investigate and seller’s duty of disclosure. The thesis clarifies how the conduct of the buyer and seller is influenced by the fact that the parties do not have the same information before entering into the acquisition agreement. In that context, the thesis examines in which cases the buyer is obligated to investigate, and in which cases the seller is obligated to disclose information. The thesis determines the content of the buyer’s duty to investigate and the seller’s duty of disclosure to determining the legal position for the buyer and seller. The aim is to determine how the fulfilment of the duties affects the legal position for the parties. After this, the thesis infers which incentives, which allocation of risk, and which costs the case law analyzed in the thesis leads to. At the end of the thesis, the legal position and the results on the conduct is involved to analyze if the legal position is optimal.
Based on the involvement of the Danish Sales of Good Act, principles of law and case law, the thesis concludes that the buyer does not have a duty to investigate in all cases, because the buyer’s duty to investigate is conditioned on the seller’s actions. The buyer cannot invoke deficiencies if the buyer does not investigate when the buyer is obligated to do so. The seller’s duty of disclosure involves that the seller is obligated to disclose information that is crucial to the buyer, and information the seller knows of, should know of, or suspects. Based on economic theories and case law, the thesis infers that the seller incurs liability when the seller does not achieve the required level of due care, and the same applies for the buyer. The difference between the two cases is that the seller can make mistakes in the sense that the seller does not achieve the required level of due care despite the fact, that the seller is convinced so.
The thesis concludes that both parties have the incentive to fulfil the duty to investigate and the duty of disclosure, respectively, when the seller and buyer incur liability if they do not achieve the required level of due care. Therefore, the optimal allocation of risk is when both the buyer and seller incur liability.
The thesis infers that the buyer’s duty to investigate is not optimal, and the buyer’s duty should therefore be altered. The seller’s duty of disclosure, however, is optimal and should not be altered.