In its judgment dated 8 May 2012, case ref. XI ZR 262 / 10 (Frankfurt a.M. HRC), the Federal Court of Justice (BGH) abandoned its existing case law whereby the assumption of correct conduct in terms of disclosure was dependent on the fact that there was only one sensible option for correct conduct in terms of disclosure and not multiple options. The focus on the lack of a decisional conflict was not compatible with the protective purpose of the reversal of the burden of proof, according to the Court. The latter is based on the consideration that the purpose of duties of disclosure and of advice, i.e. allowing the investor to make an informed decision on entering into certain transactions, is only achieved where any ambiguities attributable to a breach of the duty of disclosure are to the detriment of the party with the duty of disclosure. If in the event of failure to make a disclosure the party with the duty of disclosure were able to fall back on the fact that it is not realistically possible to prove what the other party would have done in response to disclosure, this purpose would be defeated. The reversal of the burden of proof therefore applies at the point where a breach of the duty of disclosure has been established. It will therefore be necessary to put forward evidence to disprove causality in such cases in future. In this context, the Senate of the BGH held that investor knowledge of commission that the advising bank had received for similar investment transactions in the past could constitute evidence of this kind.