German Employment Law - Contractual penalties for not commencing a job
<p>I have signed a contract with a German company, and one of the clauses says that if I am unable to start working for them, in the case of intentionally resigning, then they would charge me one month of paid salary (5000 EUR).</p>

<p>I didn't even work one day for them, and they only have my emails and physical address in Argentina, but they don't have anything else.</p>

<p>I have signed the contract, but meanwhile I found another job, in Germany too. And I would like not to proceed with them.</p>

<p><em>Do</em> I really need to pay them one month of salary? Is this something legal to have in a contract?</p>

<p>They have told me that if I don't pay, they will take legal steps.</p>

<p>Here is the clause:</p>

<p><em>"The employee shall pay a penalty for breaking the  contract in the amount of the monthly salary, if he or she fails to take up the employment."</em> </p>

<p><strong>I just want to follow the law. How should I proceed?</strong></p>

<p>I am not a lawyer: If they sue you it will probably be for fraud, then the DA will investigate and can easily find out who you are. If they can prove that you signed the contract is another story. If the clause in the contract is valid yet another.</p>

<p>Getting a lawyer might be wise, especially if your visa depends on a clean legal record. Have you talked to them yet? If you can afford it, you or your new company could pay off he months salary to the old company.</p>

<p>In my opinion it's fair, they probably turned down a lot of other applicants an will either need to search again or find a good temp to replace you. Think there was something that you cannot quit a contract before it starts, but another option would be to start working for them and then realizing during the test period that it's a bad match.</p>

<p>However, best lawyer up!</p>

<p>Search for "Kündigung vor Beschäftigungsbeginn" (<em>Cancellation before the start of employment</em>)</p>

<p>Quick google suggests that they might be right if they have it in the contract, but the lawyer will know for sure. Look for someone who does "Arbeitsrecht".</p>

<p>This sounds like, primarily, a nuanced contractual question.  So if you want a legal opinion you have to hire a lawyer competent in German contract law.</p>

<p>E.g., as you noted, the contract, or that clause, <em>might</em> not be enforceable.  Or, it looks like it <em>could</em> turn on the contractual definition of whether you had yet become an "Employee."  Without being able to review the entire contract and whatever else has been exchanged between the parties I couldn't even guess at an interpretation even under the legal system with which I'm familiar.</p>

<p>A lawyer would also be able to advise you on what legal recourse the company <em>could</em> have under German law.  E.g., they <em>might</em> just be bluffing because the cost of any "legal steps" beyond a letter would be greater than what they could conceivably recover.  <em>Or</em>, depending on your circumstances and the counterparty's litigiousness, Germany might provide them real means of ruining your opportunity to ever do business in Germany.</p>

<p>I don't know if my answer will help you, but I was in the same situation.<br>
The company in Germany which I signed for them a contract, introduced a clause where they said they will charge me an amout if I'll be unable to start the work in the right time.<br>
They had my Tunisian address and my complete name, and of course my signature in the contract.<br>
I knew a friend who was in the same situation, and he got alot of problems with DA, so I contacted a lawyer, and this last told me to search about "Cancel the contract before starting work", which was not introduced in the contract, and then he suggested to me to start the work, and to make a cancellation from the first day of work (which in my contract, I have then to work 2 weeks), and I did this way.<br>
I suggest for you to make the same, to not get any problem in the future,  mostly DA in Germany are not easy like you think ..</p>

contract-law employment germany