BankBoston Corp.'s agreement to buy Deutsche Bank's retail banking business in Argentina contains an unprecedented clause protecting the U.S. company from liability for any World War II accounts that may turn up.
"In light of the recent attention to the wartime financial transactions of a number of international financial institutions, BankBoston has examined closely the books of Deutsche Bank Argentina to seek to ensure the assets and liabilities being acquired are not associated in any way with wartime activities," BankBoston said.
BankBoston said Deutsche Bank, Germany's largest bank, believes there are no such assets and will "assume responsibility" for any found.
It is the first agreement of its kind, banking lawyers say, but may well become standard in international acquisitions.
"I would think that very soon all such deals will have these provisions," said Gabor Garai, a merger specialist at the Boston law firm of Epstein, Becker & Green. Mr. Garai was not involved in the BankBoston acquisition.
Spokeswoman Karen Schwartzman said BankBoston brought up the subject of wartime assets early in talks with Deutsche Bank. "There was no disagreement between the parties," she said. "It was important to us, and Deutsche Bank could easily understand our position."
Such discussions are likely to become more common if, as investment bankers expect, the pace of bank consolidation in Latin America heats up.
Deutsche Bank did business in Argentina from 1887 until the Argentine government seized its assets in 1945.
The bank reentered the country with a de novo branch in 1962.
The "wartime-asset" agreement recalls provisions about environmental damage that major American corporations started demanding in merger agreements in the 1970s, Mr. Garai said.
Robert L. Tortoriello, a banking lawyer at Cleary, Gottlieb, Steen & Hamilton, New York, said banks started disclosing how much New York City debt they owned after the city's near-bankruptcy in the mid-1970s. "You started seeing that debt appear in South Dakota banks, places you'd never expect. But everyone started disclosing it."
The question bankers will face as they buy companies holding potentially controversial loans and accounts, Mr. Garai said, is how long they will hold sellers responsible for such assets.
Even if the selling banks assume responsibility for the assets, the cost of taking them back could pale next to the cost of explaining away the problem.
"The size of the assets might not be that big," Mr. Garai said, "but the cost of damage control could be huge."