Before the notary appointment an important protocol is placed in the document repository. The team therefore marks the task as completed: after all, the buyer has access to the folder. But making a file available and conveying a material piece of information appropriately are different things. This article concerns the preparation of a property sale in Germany. It contains its own editorial procedure and does not constitute a conclusive legal review of your transaction.
What the data room does not automatically prove as a matter of law
In its judgment V ZR 77/22 of 15 September 2023 the BGH explained that a seller can only fulfil his duty to disclose through the data room to the extent that he may reasonably expect the buyer to take note of the circumstance requiring disclosure there. Organisation, access, time window and the significance of the information can play a role in this. [URTEIL]
The concrete case concerned commercial units and possible substantial refurbishment costs. A protocol had been uploaded shortly before the certification. The BGH largely set aside the earlier decision and remitted the matter. [PRESSE] This is neither a rigid general minimum number of inspection days nor a blanket prohibition on digital document rooms.
Treat a material piece of information as a separate process
Our practical recommendation: when a newly discovered point arises, do not merely record the file name and storage location. Describe the actual statement, the document involved and the reason why the information might be significant for the further decision. An internal suspicion and an already existing resolution are not the same thing.
In cases of technical uncertainty first clarify what the document actually states. Do not insert your own damage diagnosis or a definite cost forecast if only an older inspection order exists. The right question may be what significance a documented event has for the specific transaction and how it should be communicated.
Pass this status on to the department responsible for contract drafting or advice. This article does not determine which information is disclosure-required in every individual case. It prevents that decision from being unnoticedly skipped by simply uploading a file.
Link a comprehensible notice to the appropriate document
Prepare a factual notice that specifies which new information has been added and where the complete basis can be found. A subject line such as “Another file” is organisationally weaker than a comprehensible reference to the outstanding issue. The final content must be technically appropriate and fit the specific case.
Do not allow unclear or earlier conflicting statements to remain in parallel as if they were still the confirmed position. Name the earlier information concerned and clarify the necessary correction. A complete document belongs with the notice; extracting a favourable sentence can truncate the context.
Example: The folder is complete, but the decisive query remains open
In a wholly fictional sale an older meeting protocol is supplemented. The previous description spoke only of ongoing routine work. From the new document at least a larger measure emerges that requires further examination.
The selling side now does not merely ask whether the download can be opened technically. With technical support it clarifies the actual status, informs appropriately and records the reaction in the process. The example asserts no already determined special assessment and no automatically void contract. Its purpose is to separate document access from understandable factual information.
Do not simply mark the status as “done” shortly before the appointment
When an important supplement arrives late, the entire next step is coordinated again. Which query is still open? What examination is actually required? Must the planned procedure be adjusted? An internally scheduled signature is not a reason to downplay the significance of new information.
At the same time, lack of time is not automatically a complete legal exoneration of either contracting party. The BGH emphasises the concrete circumstances and treats self-responsibility and possible inspection needs of the buyer in a differentiated manner. [URTEIL] This guide therefore promises neither automatically additional deadlines nor any particular later liability decision.
Hand over the actual state of information
Keep the document used, the appropriate notice, queries and clarified answers together. The documentation should show what was actually communicated and what remains unanswered. A general acknowledgement of receipt is not to be editorially reinterpreted as confirmation of all technical statements.
In the end the contract draft and the actual state of knowledge are considered together. Good filing remains helpful but does not replace appropriate communication. A sale is properly prepared in this respect when material new information has been handled as a concrete task and open questions remain visible instead of disappearing in the digital folder.