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Meister Pawlow6 Mar 2013 21:13I live in Böblingen and wanted to have the rooms in my house reconfigured using drywall construction. I found a guy for the job, but he only did messy work. For the past three months, I have been trying to get in touch with him to fix everything, but he doesn’t even answer the phone. So, can anyone recommend someone? The guy was paid in cash and signed—well—a piece of paper. Is there any way I can file a warranty claim with this? Does this paper have any legal value in court?
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Bauexperte6 Mar 2013 23:56Hello,
Higher Regional Court – Undeclared Work: no invoice = no rights
Undeclared work agreement leads to invalidity of the entire contract
As did the lower court, the Higher Regional Court dismissed the claim for damages. The senate determined that the contract agreement violated a legal prohibition. According to § 1, paragraph 2 of the German Illegal Employment Act (Schwarzarbeitsgesetz), agreements to avoid invoicing are prohibited. Such agreements clearly aim to unlawfully evade taxes and thus reduce the agreed payment for the work. The violation of this prohibition pursuant to § 1 para. 2 Schwarzarbeitsgesetz leads, according to § 134 of the German Civil Code, to the invalidity of this part of the agreement. Since this represents an essential part of the contract for work, the invalidity extends to the entire contract.
Undeclared work must remain a risk
The court emphasized that contractual warranty claims cannot be derived from the principle of “good faith” under § 242 of the German Civil Code to circumvent § 1 of the Illegal Employment Act. After all, the undeclared agreement set the stage for the commission of a crime, namely tax evasion. Such conduct does not merit any state protection. Therefore, the contractor is not prevented from invoking the invalidity of the contract due to contradictory behavior. Ultimately, entering into an undeclared payment agreement must carry the risk that no rights under the underlying contract can be enforced. Those who deliberately place themselves outside the legal system cannot expect assistance from it in the event of warranty claims. Otherwise, the legal system would be protecting unlawful behavior, which would contradict the purpose of regulations intended to combat undeclared work. As a result, the plaintiff ended up with no compensation.
(Higher Regional Court Schleswig-Holstein, judgment of 21.12.2012, 1 U 105/11)
Source: my website
Regards, Bauexperte
Meister Pawlow schrieb:Read here:
Does this paper have any value in court?
Higher Regional Court – Undeclared Work: no invoice = no rights
| Time and again, when hiring tradespeople, there is an attempt to bypass tax obligations by agreeing on payment without issuing an invoice. The small financial advantage gained from this often does not justify the potential risks involved. The plaintiff wanted to have her driveway repaved. She wanted to do so as cost-effectively as possible. She intended to purchase the necessary materials herself at a low price. The defendant was contracted to carry out the required work on the 170 m² (1,830 sq ft) driveway of the property. Price agreement: “1,800 euros without invoice.” Shortly after the work was completed, significant unevenness appeared in the paving. The defendant’s attempt to redo the work was unsuccessful. An expert appointed later confirmed a fundamental defect: the sand layer beneath the paving stones was applied too thickly. To fix the issue, the entire driveway had to be dug up again. Cost: over 6,000 euros. The plaintiff sought reimbursement of these costs from the defendant. Clear case of damage Under normal contract law, the situation would have been clear: the defendant performed defective work, and his attempt to correct it according to § 635 of the German Civil Code failed. Claims for reimbursement of expenses would have been valid if the underlying contract had been lawful. |
Undeclared work agreement leads to invalidity of the entire contract
As did the lower court, the Higher Regional Court dismissed the claim for damages. The senate determined that the contract agreement violated a legal prohibition. According to § 1, paragraph 2 of the German Illegal Employment Act (Schwarzarbeitsgesetz), agreements to avoid invoicing are prohibited. Such agreements clearly aim to unlawfully evade taxes and thus reduce the agreed payment for the work. The violation of this prohibition pursuant to § 1 para. 2 Schwarzarbeitsgesetz leads, according to § 134 of the German Civil Code, to the invalidity of this part of the agreement. Since this represents an essential part of the contract for work, the invalidity extends to the entire contract.
Undeclared work must remain a risk
The court emphasized that contractual warranty claims cannot be derived from the principle of “good faith” under § 242 of the German Civil Code to circumvent § 1 of the Illegal Employment Act. After all, the undeclared agreement set the stage for the commission of a crime, namely tax evasion. Such conduct does not merit any state protection. Therefore, the contractor is not prevented from invoking the invalidity of the contract due to contradictory behavior. Ultimately, entering into an undeclared payment agreement must carry the risk that no rights under the underlying contract can be enforced. Those who deliberately place themselves outside the legal system cannot expect assistance from it in the event of warranty claims. Otherwise, the legal system would be protecting unlawful behavior, which would contradict the purpose of regulations intended to combat undeclared work. As a result, the plaintiff ended up with no compensation.
(Higher Regional Court Schleswig-Holstein, judgment of 21.12.2012, 1 U 105/11)
Source: my website
Regards, Bauexperte