In German law , termination as a legal term describes the unilateral termination of a continuing obligation by means of a declaration of intent with effect for the future.
The termination stands between the principle of " pacta sunt servanda " (contracts once concluded must be observed) on the one hand and the principle of private autonomy , the freedom of contract, which guarantees the right to be able to withdraw from a contract once concluded, on the other. For this reason, the institution of termination is provided for by the legal system, but its effectiveness is linked to numerous formal and material requirements that should adequately take into account the contractual partner's interest in the reliability of contractual relationships.
A termination is possible under certain circumstances for any continuing obligation. An effective termination includes a reason for termination on the one hand and an effective notice of termination on the other. The latter is determined, among other things, by the notice period to be observed and the formal requirements for the notice of termination, e.g. the written form . There may also be dismissal prohibitions, dismissal exclusions or dismissal protection provisions.
The conditions and modalities of termination can be regulated by law or by contract. Finally, a distinction is made between ordinary termination and extraordinary, usually without notice, termination for an important reason.
Origin of the term
The term termination is used in common parlance in the sense of “dissolution”, “annulment”, “refusal” or “dismissal”. Until the 18th century, the term “terminate” meant “make known” or “announce”. Since the beginning of the 19th century, the term replaced the previously common word "denounce" in the sense of "announce the dissolution of a contract".
Requirements for effective terminations
The termination is a unilateral, legally binding declaration of intent aimed at terminating a continuing obligation with effect for the future.
The termination terminates an obligation by one of the contractual partners. The basic prerequisite is that this contractual obligation is aimed at a continuous exchange of services (so-called permanent obligation) and that the contractual obligation exists at the time of termination. A single purchase contract , for example, is not a continuing obligation, because it is terminated by an exchange of performance and consideration and is therefore not accessible to termination. In contrast, z. For example, subscribing to a magazine is a permanent obligation. Here, the subscriber undertakes to accept the respective expenses during the contract period and to pay the agreed fee. Other classic long-term obligations are, for example, the employment contract , the rental agreement or the loan agreement . These continue and can be terminated.
The declaring party must want to terminate a specific contract and must also be aware that he is terminating this specific contract with his declaration. Conversely, the recipient of the declaration must understand that the declaring party wants to terminate a certain contract by giving notice of termination. The declaration of the contractual partner: "Get out of my sight" can, for example, represent a declaration of termination depending on the situation; it can also be understood as such by the recipient of the declaration, depending on the situation. The term “termination” need not be used here.
The termination is legally binding. This means that a contract is irrevocably terminated at the moment of receipt of an (effective) termination or within the applicable notice period. For this reason, a termination cannot be legally “withdrawn”. The declaration that a contractual partner withdraws a termination is therefore interpreted in such a way that the declaring party offers the (new) conclusion of an identical contract with unchanged contractual conditions. In contrast to the (unilateral) notice of termination, however, this offer requires acceptance by the contractual partner. In practice, this assumption is usually made by actually continuing the contract. For example, if the employee resumes work after the employer has declared that he is withdrawing the notice, this resumption of work is understood as an implied acceptance of the employer's offer.
In contrast to bilateral legal transactions , in which an agreement, an acceptance by the other contractual partner is regularly necessary, the termination takes place without an acceptance by the termination recipient. For the effectiveness of the termination, it is therefore irrelevant whether the contractual partner agrees to the termination or not.
Need to receive
The termination must be received, it must reach the contractual partner. This means that the recipient of the notice of termination must become aware of the termination. The general rules on access to declarations of intent that require receipt apply. A written declaration is received when the declaration comes “within the control of the recipient”. If, for example, a written notice of cancellation sent by registered mail / acknowledgment of receipt is not picked up by the addressee at the post office and returned to the sender after the waiting time has expired, it has not been received by the contractual partner and is therefore not effective. It did not come into his "sphere of influence", he had no direct access to the termination. It is irrelevant that the recipient of the notice could have become aware of the notice of termination if he had picked it up.
Conversely, it is sufficient for the written notice of termination, for example, to be dropped in the mailbox. This applies even if the terminating party knows that the recipient of the notice is on vacation. When it is thrown into the mailbox, it comes under the control of the recipient of the notice and has thus been sent.
Hostility to conditions
The termination, as exercising a so-called organizational right, is unconditional. This means that the effectiveness of a pronounced termination cannot be made dependent on the occurrence of a condition . The exercise of design rights is therefore "anti-conditional" because the recipient of the declaration cannot be expected to be uncertain or to be in a state of limbo. He should be able to clearly see whether a contractual relationship has been redesigned, for example terminated, by his contractual partner. If the notice of termination is made subject to such an impermissible condition, the termination is ineffective.
According to the case law, conditional design declarations that do not place the recipient of the declaration in an uncertain position are therefore harmless. This includes, for example, the so-called potential condition, in which the effectiveness of the declaration depends on the will of the recipient of the declaration. The so-called change termination (termination with simultaneous offer to continue the contractual relationship with changed contractual conditions) is declared, for example, under such a potential condition, since it depends on the recipient of the declaration whether he allows the termination to take effect or accepts the changed contractual conditions.
So-called legal conditions (conditio iuris), which are not seen as a condition within the meaning of Section 158 of the German Civil Code (BGB ) and are therefore not covered by the hostility of the termination, are also considered harmless in Germany . The "extraordinary and alternatively ordinary termination" common in labor law is pronounced under such a legal condition. The extraordinary termination is unconditional, the ordinary termination is given under the (legal) condition that the extraordinary termination is ineffective for legal reasons. The Federal Labor Court regards such a termination as "sufficiently clear termination at the next (legally) permissible date". The will of the person giving notice to terminate the employment relationship is clearly recognizable.
For various long-term obligations, the law prescribes a special form of termination, which is a prerequisite for its effectiveness. According to Section 125 of the German Civil Code (BGB), a legal transaction and consequently also a declaration of termination that does not correspond to the legally prescribed or contractually agreed form is void. The written form is required , for example, for terminating an employment relationship ( Section 623 BGB) or a rental relationship for living space ( Section 568 BGB). The written form of termination can also be contractually agreed.
In principle, it is not necessary to justify a declaration of termination. An extraordinary termination of an employment contract must be justified upon request ( Section 626 (2) BGB). A violation of this regulation does not make the termination ineffective , but can only trigger an obligation to pay damages . Certain collective agreements, however, require a statement of reasons. A training contract can only be terminated with a written justification. The termination of a rental contract for living space, on the other hand, requires a written justification ( Section 568 (1) BGB), unless the termination is made by the tenant.
The requirement to state the reasons for the termination must be distinguished from the question of whether the reasons justifying the termination actually exist. In the latter sense, of course, only a “justified” termination is effective.
Ordinary termination must comply with the applicable deadline. Often certain deadlines have to be met. These dates and deadlines result primarily from the content of the contract of the respective continuing obligation. If no individual agreements have been made between the contracting parties, the statutory provisions apply. These also apply if the agreements made deviate from the legal norm in an inadmissible manner.
The notice periods for the ordinary termination of a residential rental contract are regulated , for example, in Section 573c BGB. The dates and deadlines specified there apply automatically if the contract between the tenant and landlord does not contain a corresponding regulation. However, if there are corresponding agreements, these are only effective if they do not place the tenant in a worse position than this statutory provision.
In banking law , periods of disposition are also used, for example in the case of limited deposits in time deposits ("fixed deposits"); however, it is often a fixed-term contractual relationship with an agreed term or investment period that does not require separate termination.
Types of termination
A distinction is made between extraordinary and ordinary termination. In addition, there is a special form of conditional termination, the change termination.
An extraordinary termination (also termination without notice) is a termination through which the contractual relationship is usually terminated for an important reason without observing a statutory, collective bargaining or individual contractual period of notice. The extraordinary termination is regulated in Germany for the general law of obligations in § 314 BGB. In addition, there are special legal regulations for individual obligations, e.g. B. in § 543 BGB for tenancy law or in § 626 BGB for employment relationships according to § 611 BGB (for example in labor law, in contracts with school authorities or with providers of other services). An important reason exists if the terminating party, taking into account all the circumstances of the individual case and weighing the interests of both parties, is unreasonable to continue the contractual relationship until the agreed termination or until a period of notice has expired.
The extraordinary termination cannot be excluded by contract or agreement.
According to Section 314 (Paragraph 3 BGB), the person entitled can only terminate within a reasonable period of time after becoming aware of the reason for the termination. If the important reason is the breach of a contractual obligation, Section 314 (2) of the German Civil Code (BGB) stipulates that extraordinary termination is only permissible after the unsuccessful expiry of a period specified for remedial action or after an unsuccessful warning . In tenancy law and labor law , in particular , this requirement for setting a grace period or for issuing warnings is regulated by special legal norms or established case law. In tenancy law, Section 543 (3) of the German Civil Code (BGB) stipulates when a warning can be dispensed with before the extraordinary termination is issued; in labor law, the warning can be dispensed with in the case of particularly serious breaches of contractual obligations.
An ordinary termination (also: termination in due time) is a termination that ends the contractual relationship, observing a notice period at the end of the notice period. In labor law, in addition to the dismissal regulations of the BGB, the Dismissal Protection Act (KSchG) must be observed. The termination regulations of the BGB are regulated in § 622 BGB. The KSchG contains special provisions compared to the BGB. The KSchG also requires the existence of reasons for termination in addition to compliance with the notice period for ordinary termination. There are three types of termination reasons: personal, behavioral and operational . Unless otherwise stipulated by law, the conditions for termination can also be contractually agreed. In the area of labor law, notice periods are often regulated in collective agreements, with the exception of Section 622 BGB.
A change termination is the termination of a continuing obligation, combined with the offer to continue the contractual relationship under changed contractual conditions. For labor law, it is expressly regulated in Section 2 of the KSchG .
The notice of change is mainly found in rental and employment contracts . However, labor law provides for special protection for employees in the Dismissal Protection Act, which also applies in the event of a notice of termination (e.g. relocation of business premises).
If the addressee of the change termination rejects the offer to continue the obligation under the changed conditions or if he does not declare himself within the period of validity of the offer, the obligation will be terminated by the change termination. The change termination is therefore a conditional termination, in which the occurrence of the termination effect depends on a declaration by the contractual partner.
The change termination must be distinguished from the partial termination, which only relates to part of an existing contract and is generally not permitted.
The change termination is a form of termination of the employment relationship, which is connected with the offer to continue the employment relationship under changed, mostly worse conditions.
Differentiation from other termination facts
In the case of a fixed-term contract, the contracting parties agree upon conclusion of the contract that the contract will end after a certain period of time. The end of the contract therefore occurs automatically with the passage of time, without the need for a (termination) declaration. Since any protection against dismissal can be circumvented by setting time limits, there are special regulations, for example in the area of labor law (§ § 14 ff. TzBfG ) and in the area of tenancy law ( § 575 BGB), which limit the permissibility of time limits.
During the term of a fixed-term contract, this contract can only be properly terminated if a termination option has been contractually agreed. Otherwise, a fixed-term contract cannot be terminated before the deadline expires, or it can only be terminated for good cause.
It can also be agreed that a contract will automatically end when a certain condition , a certain event occurs. These contracts also end without the need for a further declaration by one of the contractual partners as soon as the condition or event occurs, if necessary after the expiry of an agreed period.
A termination agreement is a contract in which the contracting parties agree that another contract will be canceled or terminated. In contrast to termination, a termination agreement requires an agreement between the contracting parties. The termination agreement cannot therefore be declared or demanded unilaterally. If one of the contracting parties does not agree to the conclusion of a termination agreement, the termination agreement will not be concluded and the contract referred to will remain in effect.
In certain cases, a contract can be terminated by avoidance . Similar to the termination, the declaration of avoidance is also a unilateral declaration of intent that requires receipt. The difference to the termination is that the challenge has retroactive effect on the time of the conclusion of the contract and the contract is subsequently treated as if it had never been concluded. In most cases, the challenge is based on an illegal threat or fraudulent misrepresentation (cf. § 123 BGB): One of the contracting parties asserts that he was either forced to conclude the contract or that he was so deceived about a certain fact, that he would not have signed the contract if he had known about the deception. Example from labor law: the applicant untruthfully claims to have a university degree or completed an apprenticeship and is then hired. Example from tenancy law: When asked, the prospective tenant untruthfully claims that he has never given an affidavit and then concludes a rental agreement. In both cases, the contractual relationship can be annulled retrospectively as soon as the contractual partner learns of the deception.
- Cancellation of subscriptions under Subscription
- Termination of bonds under Callable bond
- Termination of employment contracts with termination (German labor law)
- Termination of loan agreements under credit termination
- Termination of home contracts under home contract
- Termination of life insurance policies under surrender (life insurance)
- Termination of rental agreements
- Special right of termination
- Protection against dismissal
- Inner resignation
- ↑ Duden, Volume 7 - Etymology, 2nd edition 1997 Lemma "kund"
- ^ Walter Doralt: Long-term contracts . Mohr Siebeck, 2018, p. 409, 413, 419, 423 , doi : 10.1628 / 978-3-16-155619-7 (OCLC 1042159148 [accessed July 22, 2020]).