Service contract (Germany)
According to German law, a service contract exists if one contracting party has undertaken to perform certain services and the other party has undertaken to pay the agreed remuneration. This includes self-employed or employed; dependent, self-determined or externally determined services.
A typical example of a service contract is the employment contract . In contrast to the free service contract, the employee does not owe independent services in the employment contract. The employment contract also differs from the "normal" service contract in that it contains more extensive mutual rights and obligations (for example continued payment of wages in the event of illness according to § 3 EntgFG, vacation entitlement, dependency on instructions, welfare and loyalty obligations). But not only the employment relationship, but basically every service is contractually treated in Germany via the service contract according to BGB .
Historically, the service contract developed from the Locatio conductio operarum of Roman law . The person obliged to serve ( locator ) had to provide services personally and carefully ( diligentia ). The fulfillment interest was pursued by means of the actio locati . The employer ( conductor ) was liable for payment of wages ( merces ). The duty-taker was able to pursue this with the actio locati. Protection against dismissal was not granted.
Ordinary everyday services were performed by slaves , followed by freedmen and children . During the expansion of the Roman Empire, this type of employment increased, only with the decline of the slave economy , craftsmen and day laborers established themselves in the business area.
The service contract is a mutual contract by which one part is obliged to perform the promised services and the other part is obliged to pay the agreed remuneration. The parties to the contract are called the authorized service provider (the creditor of the service) and the service contractor (debtor). In the case of a service contract, the person obliged to do service owes self-employed services, i.e. self-employment.
In contrast to the contract for work and services , the service provider owes a performance (effort), but no success. In addition, the service contract is differentiated from the contract for work and services by its design as a continuing obligation . If the service contract is to be terminated before the service is provided, the termination must be carried out by giving notice . However, the demarcation when employing bogus self-employed is much more difficult . Here it is also possible to employ people with a work contract under the special requirements of SGB IV . The problem is the definition usually also the agency agreement ( BGB).
Typical service contracts
Typical service contracts are - apart from the employment contract - for example the treatment contract , the mandate contract with a lawyer , teaching contracts (especially distance learning) and the telecommunications contract (e.g. mobile phone contracts). The architect's contract is, however, different suspected as often, no employment contract, but a contract (albeit with some elements of a service contract). The employment of a civil servant is organized under public law and is therefore not solved through civil law , but through civil servant law , a sub-area of administrative law . Offering software on a rental basis ( ASP solution ) can also be regulated via a service contract.
The remuneration for the service is the main duty of the person entitled to service. The amount of the remuneration is determined by the contractual agreement; In the case of employment contracts, the amount of the remuneration can also be determined according to the collective agreement . With every service contract, the person obliged to serve can demand remuneration, even if the person entitled to service does not accept the service or does not accept it on time. In the case of teaching contracts, the remuneration is therefore also due if an agreed date is not kept. For continued pay in case of sickness and recreation and maternity leave , there are additional legal and tariff regulations.
There are also important provisions for the employment contract in the trade regulations : According to GewO, the employer has the right to issue instructions to the employee ; according to GewO, the employee is entitled to a qualified job reference .