Last Updated on June 27, 2021 by LawEuro
German Civil Code (BGB) German law
Title 8
Service contract and similar contracts*)
*) Official note: This title serves to implement 1. Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions (OJ L 39, p. 40), and 2. Council Directive 77/187/EEC of 14 February 1977 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of businesses (OJ L 61, p. 26).
Subtitle 1
Service contract
Section 611
Typical contractual duties in a service contract
(1) By means of a service contract, a person who promises service is obliged to perform the services promised, and the other party is obliged to grant the agreed remuneration.
(2) Services of any type may be the subject matter of service contracts.
Sections 611a and 611b
(repealed)
Section 612
Remuneration
(1) Remuneration is deemed to have been tacitly agreed if in the circumstances it is to be expected that the services are rendered only for remuneration.
(2) If the amount of remuneration is not specified, then if a tariff exists, the tariff remuneration is deemed to be agreed; if no tariff exists, the usual remuneration is deemed to be agreed.
(3) (repealed)
Section 612a
Prohibition of victimisation
The employer may not discriminate against an employee in an agreement or a measure because that employee exercises his rights in a permissible way.
Section 613
Non-transferability
The party under a duty of service must in case of doubt render the services in person. The claim to services is, in case of doubt, not transferable.
Section 613a
Rights and duties in the case of transfer of business
(1) If a business or part of a business passes to another owner by legal transaction, then the latter succeeds to the rights and duties under the employment relationships existing at the time of transfer. If these rights and duties are governed by the legal provisions of a collective agreement or by a works agreement, then they become part of the employment relationship between the new owner and the employee and may not be changed to the disadvantage of the employee before the end of the year after the date of transfer. Sentence 2 does not apply if the rights and duties with the new owner are governed by the legal provisions of another collective agreement or by another works agreement. Prior to expiry of the period of time under sentence 2, the rights and duties may be changed if the collective agreement or the works agreement no longer applies or, where it is not the case that both parties are bound by a collective agreement in the scope of applicability of another collective agreement, the application of that collective agreement is agreed between the new owner and the employee.
(2) The previous employer is jointly and severally liable with the new owner for duties under subsection (1) to the extent that they arose prior to the date of transfer and are due before the end of one year after that date. If such duties are due after the date of transfer, however, the previous employer is only liable for them to the extent that corresponds to the part of their assessment period that ended on the date of transfer.
(3) Subsection (2) does not apply if a legal person or a commercial partnership ceases to exist through conversion.
(4) The termination of the employment relationship of an employee by the previous employer or by the new owner due to transfer of a business or a part of a business is ineffective. The right to terminate the employment relationship for other reasons is unaffected.
(5) The previous employer or the new owner must notify employees affected by a transfer in text form prior to transfer:
1. of the date or planned date of transfer,
2. of the reason for the transfer,
3. of the legal, economic and social consequences of the transfer for the employees, and
4. of measures that are being considered with regard to employees.
(6) The employee may object in writing to the transfer of the employment relationship within one month of receipt of notification under subsection (5). The objection may be addressed to the previous employer or to the new owner.
Section 614
Due date of remuneration
Remuneration is to be paid after performance of the services. If remuneration is assessed by time periods, then it is to be paid at the end of the individual time periods.
Section 615
Remuneration in the case of default in acceptance and business risk
If the person entitled to services is in default in accepting the services, then the party owing the services may demand the agreed remuneration for the services not rendered as the result of the default without being obliged to provide cure. However, he must allow to be credited against him what he saves as a result of not performing the services or acquires or wilfully fails to acquire through use of his employment elsewhere. Sentences 1 and 2 apply with the necessary modifications in cases in which the employer bears the risk of loss of working hours.
Section 616
Temporary prevention from performing services
The person obliged to perform services is not deprived of his claim to remuneration by the fact that he is prevented from performing services for a relatively trivial period of time for a reason in his person without fault on his part. However, he must allow to be credited against him the amount he receives for the period when he is prevented under a health or accident insurance policy that exists on the basis of a statutory duty.
Section 617
Duty of medical care
(1) If, in a permanent service relationship that completely or mainly takes up the economic activity of the person obliged to perform services, the person obliged is integrated into the joint household, then the person entitled to services must, in the event of illness, grant him the necessary food and medical treatment up to a duration of six weeks, but not beyond termination of his service relationship, unless the illness was caused by the person obliged by intent or gross negligence. The provision of food and medical treatment may be granted by the admission of the person obliged to a hospital. The costs may be credited against the remuneration owed for the period of illness. If the service relationship is terminated by the person entitled to services under section 626 on the grounds of illness, then termination of the employment caused by this is not taken into account.
(2) The duty of the person entitled to services does not arise if provision has been made for the food and medical treatment by an insurance company or a public health institution.
Section 618
Duty to undertake protective measures
(1) The person entitled to services must furnish and maintain premises, devices and equipment that he must provide for performance of the services in such a way and must arrange services that must be undertaken on his order or under his supervision in such a way that the person obliged to perform services is protected against danger to life and limb to the extent that the nature of the services permits.
(2) If the person obliged has been integrated into the common household, then the person entitled to services must provide the installations and make the arrangements, with regard to the living and sleeping space, the provision of food and work and leisure time, that are required with a view to the health, morality and religion of the person obliged.
(3) If the person entitled to services fails to fulfil the duties it has with regard to the life and the health of the person obliged, then the provisions of sections 842 to 846 governing torts apply with the necessary modifications to his duty to provide damages.
Section 619
Absolute nature of welfare duties
The duties incumbent upon the person entitled to services under sections 617 and 618 may not be cancelled or restricted in advance by contract.
Section 619a
Burden of proof when the employee is liable
Notwithstanding section 280 (1), the employee must only provide the employer with compensation for damage arising from the breach of a duty under the employment relationship if he is responsible for the breach of duty.
Section 620
Termination of services relationship
(1) The service relationship ends at the end of the period of time for which it has been entered into.
(2) If the duration of the service relationship neither is specified nor may be inferred from the nature or the purpose of the services, then either party may terminate the service relationship under the provisions of sections 621 to 623.
(3) The Part-Time Work and Fixed-Term Employment Act [Teilzeit- und Befristungsgesetz] governs employment contracts entered into for a specified period of time.
Section 621
Notice periods for service relationships
In the case of a service relationship that is not an employment relationship within the meaning of section 622, termination is allowed
1. if the remuneration is assessed by days, on any day to the end of the following day;
2. if the remuneration is assessed by weeks, at the latest on the first working day of a week to the end of the following Saturday;
3. if the remuneration is assessed by months, at the latest by the fifteenth of one month to the end of the calendar month;
4. if the remuneration is assessed by quarters or longer periods of time, observing a notice period of six weeks, to the end of a calendar quarter;
5. if the remuneration is not assessed by time periods, at any time; in the case of a service relationship that completely or mainly takes up the economic activity of the person obliged; however, a notice period of two weeks must be observed.
Section 622
Notice periods in the case of employment relationships
(1) The employment relationship of a wage-earner or a salary-earner (employee) may be terminated with a notice period of four weeks to the fifteenth or to the end of a calendar month.
(2) For notice of termination by the employer, the notice period is as follows if the employment relationship in the business or the enterprise
1. has lasted for two years, one month to the end of a calendar month,
2. has lasted for five years, two months to the end of a calendar month,
3. has lasted for eight years, three months to the end of a calendar month,
4. has lasted for ten years, four months to the end of a calendar month,
5. has lasted for twelve years, five months to the end of a calendar month,
6. has lasted for fifteen years, six months to the end of a calendar month,
7. has lasted for twenty years, seven months to the end of a calendar month.
In calculating the duration of employment, time periods prior to completion of the twenty-fifth year of life of the employee are not taken into account.
(3) During an agreed probationary period, at most for the duration of six months, the employment relationship may be terminated with a notice period of two weeks.
(4) Provisions differing from subsections (1) to (3) may be agreed in collective agreements. Within the scope of applicability of such a collective agreement, the different collective agreement provisions between employers and employees who are not subject to collective agreements apply if the application of collective agreements has been agreed between them.
(5) In an individual contract, shorter notice periods than those cited in subsection (1) may be agreed only
1. if an employee is employed to help out on a temporary basis; this does not apply if the employment relationship is extended beyond a period of three months;
2. if the employer as a rule employs not more than 20 employees with the exception of those employed for their own training and the notice period does not fall short of four weeks.
When the number of employees employed is determined, part-time employees with regular weekly working hours of not more than 20 hours are counted as 0.5 employees and those working not more than 30 hours are counted as 0.75 employees. The agreement in an individual contract of longer notice periods than those stated in subsections (1) to (3) is unaffected by this.
(6) For notice of termination of employment by the employee, no longer notice period may be agreed than for notice of termination by the employer.
Section 623
Written form of termination
Termination of employment by notice of termination or separation agreement requires written form to be effective; electronic form is excluded.
Section 624
Notice period in the case of contracts lasting more than five years
If the service relationship is entered into for the lifetime of a person or for a longer period of time than five years, then it may be terminated by the person obliged at the end of five years. The notice period is six months.
Section 625
Tacit extension
If the service relationship is continued after the end of the service period by the person obliged with the knowledge of the other party, then it is deemed to be extended for an indefinite period of time unless the other party objects to it without undue delay.
Section 626
Termination without notice for a compelling reason
(1) The service relationship may be terminated by either party to the contract for a compelling reason without complying with a notice period if facts are present on the basis of which the party giving notice cannot reasonably be expected to continue the service relationship to the end of the notice period or to the agreed end of the service relationship, taking all circumstances of the individual case into account and weighing the interests of both parties to the contract.
(2) Notice of termination may only be given within two weeks. The notice period commences with the date on which the person entitled to give notice obtains knowledge of facts conclusive for the notice of termination. The party giving notice must notify the other party, on demand, of the reason for notice of termination without undue delay in writing.
Section 627
Termination without notice in the case of a position of trust
(1) In a service relationship that is not an employment relationship within the meaning of section 622, notice of termination is allowed, even without the requirement specified in section 626, if the person obliged to perform services, without being in a permanent service relationship with fixed earnings, must perform services of a higher nature with which people are customarily entrusted on the basis of special trust.
(2) The person obliged to perform services may only give notice in such a manner that the person entitled to services can obtain the services elsewhere, unless there is a compelling reason for untimely notice of termination. If he should give notice in untimely fashion without such cause, then he must compensate the person entitled to services for damage arising from this.
Section 628
Partial remuneration and damages in case of termination without notice
(1) If after commencement of performance of the service, the service relationship is terminated on the ground of section 626 or 627, then the person obliged to perform services may demand a part of his remuneration corresponding to his services performed thus far. If he gives notice without being prompted to do so by action of the other party in breach of contract, or if he should prompt termination by the other party by his own action in breach of contract, then he has no claim to the remuneration to the extent that his previous services are of no interest to the other party as a result of the notice of termination. If remuneration is paid in advance for a later period of time, then the person obliged must reimburse it under the provisions of section 346 or, if notice of termination is given by reason of a circumstance for which he is not responsible, under the provisions on the return of unjust enrichment.
(2) If notice of termination is prompted by the conduct of the other party in breach of contract, then the other party is obliged to compensate the damage arising from the dissolution of the service relationship.
Section 629
Time off for search for employment
After the termination of a permanent service relationship, the person entitled to services must grant the person obliged, on demand, reasonable time to seek another service relationship.
Section 630
Duty to provide a reference
Upon the termination of a permanent service relationship, the person obliged may demand from the other party a written reference on the service relationship and its duration. The reference must extend, on demand, to the services performed and conduct in service. The reference may not be provided in electronic form. If the person obliged is an employee, section 109 of the Trade Code [Gewerbeordnung] applies.
Subtitle 2
Treatment contract
Section 630a
Duties typical of the contract in the treatment contract
(1) The treatment contract obliges the party agreeing to provide medical treatment for a patient (treating party) to provide the promised treatment, and the other party (patient) to pay the agreed remuneration unless a third party is obliged to effect payment.
(2) Unless agreed otherwise, the treatment must take place according to the medical standards that are generally recognised at the time of the treatment.
Section 630b
Applicable provisions
The provisions on the service relationship, which is not an employment relationship within the meaning of section 622, are to be applied to the treatment relationship unless this subtitle determines otherwise.
Section 630c
Cooperation between the contracting parties; obligations to provide information
(1) The treating party and the patient should work together to implement the treatment.
(2) The treating party is obliged to explain to the patient in a comprehensible manner at the beginning of the treatment, and where necessary during the same, all and any circumstances that are relevant to the treatment, in particular the diagnosis, the anticipated health development, the therapy and the measures to be taken on the occasion of and subsequent to the therapy. If circumstances are recognisable for the treating party which give rise to the presumption of malpractice, he/she shall inform the patient thereof on request or in order to avert health risks. If the treating party or one of his/her relatives designated in section 52 subsection (1) of the Code of Criminal Procedure has committed malpractice, the information in accordance with sentence 2 may only be used for evidential purposes in criminal or regulatory fine proceedings pursued against the treating party or against a member of his/her family with the consent of the treating party.
(3) If the treating party knows that the complete assumption of the treatment costs by a third party is not secured, or if sufficient indications of this emerge under the circumstances, he/she must inform the patient in text form prior to commencing the treatment of the likely costs of the treatment. Further requirements from other provisions as to form remain unaffected.
(4) The patient does not need to be informed where this can exceptionally be dispensed with because of special circumstances, in particular if the treatment cannot be postponed or the patient has explicitly waived being informed.
Section 630d
Consent
(1) Prior to implementing medical treatment, in particular a procedure affecting the body or health, the treating party is obliged to acquire the consent of the patient. If the patient is unable to consent, the consent of a party entitled to do so is to be acquired unless a living will in accordance with section 1901a (1) sentence 1 permits or prohibits the measure. Further requirements with regard to consent ensuing from other provisions remain unaffected. If consent to a measure which cannot be delayed cannot be acquired in good time, it may be implemented without consent if this is in line with the implicit will of the patient.
(2) The effectiveness of the consent is contingent on the patient, or in the case of subsection (1) sentence 2 the party entitled to give consent, having been informed in accordance with section 630e (1) to (4) prior to giving consent.
(3) Consent may be revoked at any time, without complying with a specific format, and without stating reasons.
Section 630e
Obligations to provide information
(1) The treating party is obliged to inform the patient of all and any circumstances which are relevant to consent. This includes in particular the nature, extent, implementation, anticipated consequences and risks involved in the measure, as well as its necessity, urgency, suitability and prospects for success with regard to the diagnosis or the therapy. Alternatives to the measure must also be referred to in the information if several equally medically indicated, customary methods may lead to significantly different strains, risks or chances of recovery.
(2) The information must
1. be provided orally by the treating party or by a person who has the requisite training to carry out the measure; additionally, documents may also be referred to which the patient receives in text form,
2. be provided in good time so that the patient can take his/her decision on consent in a well-considered manner,
3. be understandable for the patient.
The patient shall be provided with duplicates of documents which he/she has signed in connection with the information or consent.
(3) The patient does not need to be provided with information where this can be exceptionally dispensed with because of particular circumstances, in particular if the measure cannot be delayed or the patient has explicitly waived being provided with the information.
(4) If, in accordance with section 630d (1) sentence 2, the consent of a party entitled to do so is to be obtained, the latter shall be informed in accordance with subsections (1) to (3).
(5) In cases coming under section 630d (1) sentence 2, the major circumstances in accordance with subsection (1) shall also be explained to the patient in a manner that he/she is able to understand, where the latter is capable of absorbing the explanation on the basis of his/her state of development and ability to understand and unless it is inconsistent with his/her well-being. Subsection (3) shall apply with the necessary modifications.
Section 630f
Documentation of the treatment
(1) For the purpose of documentation, the treating party is obliged to keep medical records in paper form or as electronic documentation in a direct temporal link with the treatment. Corrections and alterations of entries in the medical records are only permissible if, in addition to the original content, the point in time at which they were carried out remains recognisable. This is also to be ensured for medical records that are kept electronically.
(2) The treating party is obliged to record all measures in the medical records which are relevant in medical terms for the current and future treatment and its results, in particular the establishment of the medical history, diagnoses, examinations, results of examinations, findings, therapies and their effects, procedures and their impact, consent and information. Physicians’ letters are to be included in the medical records.
(3) The treating party must keep the medical records for a period of ten years after the conclusion of the treatment unless other periods for their retention exist in accordance with other provisions.
Section 630g
Inspection of the medical records
(1) The patient is on request to be permitted to inspect the complete medical records concerning him/her without delay to the extent that there are no considerable therapeutic grounds or third-party rights at stake to warrant objections to inspection. Reasons must be provided for a refusal to permit inspection. Section 811 is to be applied with the necessary modifications.
(2) The patient can also request electronic duplicates of the medical records. He/she shall reimburse to the treating party the costs incurred.
(3) In the event of the death of the patient, the rights ensuing from subsections (1) and (2) to exercise the interests under property law fall to his/her heirs. The same applies to the closest relatives of the patient where they assert immaterial interests. The rights are ruled out where inspection runs counter to the explicit or presumed will of the patient.
Section 630h
The burden of proof in case of liability for malpractice and errors in providing information
(1) An error is to be presumed to have been committed by the treating party if a general treatment risk has materialised which was fully manageable for the treating party and which led to the injury to the life, limb or health of the patient.
(2) The treating party is to prove that he/she has acquired consent in accordance with section 630d and provided information in accordance with the requirements of section 630e. If the information does not comply with the requirements of section 630e, the treating party may assert that the patient would also have consented to the measure had proper information been provided.
(3) If the treating party has not recorded a medically-necessary major measure and its result in the medical records, counter to section 630f (1) or (2), or if, counter to section 630f (3), he/she has not retained the medical records, it is to be presumed that he/she has not carried out this measure.
(4) If a treating party was not qualified to carry out the treatment which he/she performed, it is to be presumed that the lack of qualification was the cause of the occurrence of the injury to the life, limb or health.
(5) If gross malpractice has committed, and if this is susceptible as a matter of principle to cause an injury to life, limb or health of the nature which in fact took place, it is to be presumed that the malpractice was the cause of this injury. This is also to apply if the treating party omitted to take or record a medically-necessary finding in good time where the finding would with sufficient certainty have led to a result which would have given rise to further measures, and if failure to carry out such measures would have constituted gross malpractice.
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