Advance payment via a trustee lost: is the trustee liable?

What this is about

A trustee (Treuhänder) — often referred to in international trade as an escrow agent — manages money or assets for two contracting parties who do not yet fully trust each other: the buyer first pays into an escrow account, and the trustee releases the money to the seller only once certain contractually defined conditions have been met. It was precisely such an arrangement that an importer of protective equipment chose in the summer of 2020: for a delivery of nitrile gloves worth around 9.92 million euros, it engaged a firm of tax advisers specialising in trust mandates as trustee.

The case

Even before the actual trust agreement was concluded, the buyer transferred a down payment of one million euros to the escrow account. The agreement, signed a few days later, expressly provided in a separate clause that the trustee was to forward this down payment immediately and without further examination to an account designated by the seller. That is exactly what it did when the seller instructed it accordingly — the money went to a third company. The transaction failed, the seller became insolvent in Austria, and the buyer recovered only around 43,000 euros from the final distribution.

The buyer sued the trustee for the remaining loss — arguing, among other things, that the trustee had provided payment services without the required BaFin authorisation under § 10 ZAG (Payment Services Supervision Act) and had breached its due diligence obligations under the Geldwäschegesetz (GwG, German Anti-Money Laundering Act). The Higher Regional Court (OLG) of Hamburg largely upheld the action and ordered the trustee to pay around 670,000 euros.

The BGH's decision

The BGH (Federal Court of Justice) set aside this judgment in its entirety (BGH, judgment of 21.4.2026 – XI ZR 232/23). The XI Civil Senate even left open whether the authorisation requirement under § 10(1) sentence 1 ZAG is a protective law (Schutzgesetz) within the meaning of § 823(2) BGB (German Civil Code) at all — because even if this is assumed, its protective purpose does not extend so far as to protect customers against financial losses that arise because a payment service provider pays in accordance with instructions but does not fully comply with its due diligence obligations under the Anti-Money Laundering Act. The Senate thereby builds on its own landmark decision from 2008 (BGH, judgment of 6.5.2008 – XI ZR 56/07): even then, it had clarified that the identification and reporting obligations of the Anti-Money Laundering Act serve exclusively the stability of the financial system — not the protection of the financial interests of individual customers. According to the BGH, nothing has changed in this respect as a result of all subsequent amendments to the Anti-Money Laundering Act.

A contractual claim also failed — for a simple reason: forwarding the money to the unknown third-party account corresponded exactly to what the trust agreement itself provided for. Anyone who contractually instructs their trustee to forward a payment without further examination and consultation cannot later accuse the trustee of having done exactly that. Nor was there an unwritten duty to warn: the BGH emphasises that the trustee itself had no superior knowledge compared with the buyer — and that a buyer acting in a business capacity must in principle be aware of the risk of making an advance payment to a business partner who has not yet been fully vetted.

What this means for practice

For practice, this means: anyone who handles an advance payment via a trustee or escrow service should not rely on the trustee's supervisory or anti-money laundering obligations automatically also securing the protection of their own assets. If the trustee breaches these obligations, it is as a rule not liable to the customer for this. The only decisive factor is the specific contractual arrangement: anyone who wants the trustee to have a genuine duty to examine and enquire — for example before forwarding money to a new, previously unknown account — must expressly agree on it. Without such a clause, in an emergency, usually only claims for intentional damage remain, which are difficult to prove.