Liability

(1) The depositary is liable to the domestic UCITS, or to the investors of the domestic UCITS, for the loss of a financial instrument held in custody by the depositary or by a sub-custodian to which the custody of financial instruments under section 72(1), point 1, has been delegated. In the event of such a loss, the depositary must, without delay, return to the domestic UCITS, or to the UCITS management company acting for the account of the domestic UCITS, a financial instrument of identical type, or pay a corresponding amount. The depositary is not liable where it can demonstrate that the loss arose as a result of an external event beyond its reasonable control, the consequences of which would have been unavoidable despite all reasonable efforts to the contrary. Further claims arising under the provisions of civil law from contracts or torts remain unaffected.
(2) The depositary is also liable to the domestic UCITS or the investors of the domestic UCITS for all other losses suffered by them as a result of the depositary's negligent or intentional failure to fulfil its obligations under this Act.
(3) The depositary's liability remains unaffected by any delegation under section 73.
(4) An agreement purporting to exclude or limit the depositary's liability under subsections (1), (2), or (3) is void.
(5) For further details on the conditions under which financial instruments held in custody are to be regarded as lost, reference is made to Article 18 of Delegated Regulation (EU) 2016/438. For further details on the conditions under which the depositary is discharged from liability under subsection (1), third sentence, reference is made to Article 19 of Delegated Regulation (EU) 2016/438.