The Federal Labour Court (Bundesarbeitsgericht, BAG) ruled on 26 November 2020 (case no. 8 AZR 58/20) that expiry periods in an employment contract which lead to the lapse of all remaining claims under the employment contract after the expiry of a certain period of time after the end of the employment relationship are invalid.
The court had to deal with the following facts:
The employer asserted a claim for damages in the amount of 101,372.72 Euros in the context of a counterclaim on the occasion of a dismissal protection suit. The employee previously worked as a commercial employee in the company and was responsible for financial and payroll accounting. After she had posted private invoices of the limited partner – her husband – paid with company funds many times, the employer had terminated the employment relationship.
The company filed a counterclaim against the dismissal protection action brought by the employee, in which it asserted the above-mentioned claims for damages. The employee objected to the following clause of the employment contract:
“§ 13 Time limits for forfeiture: All claims arising from the employment relationship shall be asserted in writing within a preclusive period of 2 months after the due date and, in the event of rejection by the other party, shall be enforced within a preclusive period of one month.”
The lower court, the Regional Labour Court of Rhineland-Palatinate, judgment of 18.06.2019 (case no. 5 Sa 169/18), did not consider the company’s claims to be excluded under the forfeiture clause. An interpretation of the expiry clause at issue, taking into account its meaning and purpose, showed that the clause did not include the present claim for damages. The court came to this conclusion with regard to the provision of section 202 (1) of the German Civil Code (BGB), according to which liability for intent could not be facilitated in advance by a legal transaction.
The BAG has now overturned this decision. It concluded that such a forfeiture clause used in the GTC covered all claims arising from the employment relationship without exception, which resulted from section 310 (3) no. 2 BGB. More precisely, all mutual contractual and statutory claims that the parties have against each other arising from the employment relationship are basically covered, thus also claims for damages arising from intentional breach of contract and intentional tort.
However, in the present case there was a violation of section 202(1) BGB, so that the clause was invalid pursuant to section 134 BGB. Both parties can refer to this, including the employer who has made the clause himself.
In its previous case law, the BAG had not considered claims arising from intentional breach of contract and intentional tort to be covered by general terms and conditions – in this respect, this is an important change in case law that employers will have to observe in future when drafting pre-formulated contracts. Liability for wilful breach of contract and wilful tort must in future be expressly excluded from the forfeiture clauses so that the clause can apply to the other claims.

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