Exclusion clause "Fall of all claims" is void
So far, the Federal Labor Court (BAG) saw contractual clauses, which have only been effective in exceptional cases that are not to be held against the law, not to be violated by the contracting parties when the contract is concluded. The 8th Senate does not stick to this case law. Rather, a blanket exclusion clause in the terms and conditions or pre -formulated contractual terms should, according to which all claims that arise from the employment relationship, if they are not asserted and sued by the claimant within certain deadlines, are now also recorded due to an intentional breach of contract and an intentional unauthorized action. To date that was not the case.
Facts
The parties fought a claim for damages by the employer. The following clause was in the employee's employment contract:
"Section 13 of expiry periods: All claims that arise from the employment relationship must be asserted in writing within an exclusion period of two months after the due date and, in the event of the rejection by the counterpart, within an exclusion period of one month."
After the employer found that multiple private invoices were paid with company funds and the transfers were booked by the employee, the termination took place. In the dismissal protection process, the employer asserted her own and ceded claims for damages. The termination was effective, whereas the counterclaim was rejected.
Decision
The permissible revision was justified. The BAG referred the matter back to the lag. For the continued appeal procedure, the 8th Senate issued the following information: Contrary to the earlier case law of the BAG, claims for damages due to intentional breach of contract and intentional, unauthorized acting are recorded by a flat -rate exclusion clause in the general terms and conditions within the meaning of Section 310 (3) No. 2 BGB - such as § 13 of the employment contract. According to the BAG, however, the expiry clause does not apply to claims asserted by the employer of assigned law because they do not originate in the employment relationship. An expiry of any claims also failed out of its own right, because § 13 of the employment contract is void due to violation of Section 202 (1) of the German Civil Code (BGB). According to Section 306 (1) of the German Civil Code (BGB), this leads to its complete decrease in the lack of a divisibility of the clause while maintaining the contract. However, the employer, although user, does not have to accept the principles of the personal partiality of general terms and conditions against the principles. These principles are not applicable if a clause is void due to a violation of Section 202 (1) of the German Civil Code (BGB). Section 202 (1) of the German Civil Code (BGB) complements the principle of Section 276 (3) of the German Civil Code, according to which the debtor should not be liable in advance. This assessment statement should not be hollowed out by the limitation of limitation; It should also protect those who bring a condition that deviates from this.
Conclusion
Contrary to the previous jurisprudence, claims from intentional breach of contract and intentional tortful action are now being recorded by general exclusion clauses. So they will have to be expressly excluded in the future, otherwise the clause will be void as a whole.
However, not only the employee can rely on this, but also the employer, even though he is user. And since the reasoning of the BAG is not only related to the specific case - which dealt with intentions - this should also apply to claims from, for example, gross negligence or enrichment.
According to BAG, the wording of an exclusion clause, according to the BAG, also includes claims due to an intentional breach of contract and an intentional unauthorized act. According to this, all claims that the parties to the employment contract have against each other are recorded against each other based on their legal relationships based on the employment contract. In the case of a blanket decay clause in the terms and conditions, from which all claims from the employment relationship are recorded without exception, it cannot be assumed that the parties did not want to include such claims that lead to the nullity or ineffectiveness of the expiry clause.
Practical notice
This BAG's decision, which has so far been less noticeable, should - in any case on the employer side - be taken as an opportunity to regularly check your own sample work contracts and to question the highest judicial case law. An interpretation in the fact that claims are not covered due to an intentional breach of contract and an intentional unauthorized act should not be justified by the fact that in the event of an intentional violation of the contract and a deliberate unauthorized act in connection with the employment relationship, it is not an extraordinary case, which is not required by the contracting parties when the contract is concluded.
The mere that the parties to the employment contract with intentional breaches of contract or intentional, unauthorized acts violate the obligations incumbent on them based on the employment contract or on the basis of legal provisions do not follow that this is an extraordinary process that, from the perspective of the employment contract parties, does not require any regulation from the outset.
Rather, intentional actions are about behaviors that experience has shown that experience has shown again and again.
And once again we conclude with the note: eyes open when designing the contract!
