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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).

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.

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

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

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

Here is the clause:

"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."

I just want to follow the law. How should I proceed?

  • I had the impression that they interpreted the fact that I took another offer, as an offense and personally. Just my very personal opinion... – HelloWorldGuy Sep 30 '15 at 0:56
  • If they don't have more than just your name and your address in Argentina, I really don't see how they could harm you anyway, in my opinion they would need some Personal ID, such as Passport number. – user2819 Sep 30 '15 at 1:23
  • taking it as a personal offense, that sounds like a very European trait (part of the "this is just how it is" mindset). When you find a lawyer (prob. one who is based in Germany but speaks English, they can do a review of the document for you and provide recommendations without a huge expense). Another alternative might be to ask the folks at the new company; if they are large enough, they may have a law department that can provide some assistance. – coderworks Sep 30 '15 at 14:01
  • @coderworks The new company may also take offence at the poster signing a contract and then breaching the contract. – gnasher729 Dec 26 '18 at 22:03
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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.

E.g., as you noted, the contract, or that clause, might not be enforceable. Or, it looks like it could 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.

A lawyer would also be able to advise you on what legal recourse the company could have under German law. E.g., they might just be bluffing because the cost of any "legal steps" beyond a letter would be greater than what they could conceivably recover. Or, 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.

  • What do you mean by ruining any opportunity of doing business in Germany @feetwet? And what about the fact that they don't have much of my personal information? – HelloWorldGuy Sep 30 '15 at 0:29
  • @HelloWorldGuy - I don't know, which is basically my point. E.g., there are some countries where it's conceivable that some legal actions could prevent you from ever getting a visa. Regarding your personal information: It sounds like you're asking "what can I practically get away with," whereas your explicit question is "what can I legally get away with?" Nevertheless, the answer to both is the same. – feetwet Sep 30 '15 at 1:23
  • Just to add some more information, I have the visa already. I see your point. It's quite hard to really know. My opinion is that, it does not make any sense, since I didn't even start working for them and they didn't spend a single coin with me. Then just paying 5000 EUR may not be very smart from my point of view. – HelloWorldGuy Sep 30 '15 at 1:41
  • @HelloWorldGuy You signed a contract. – gnasher729 Dec 26 '18 at 22:05
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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.

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.

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.

However, best lawyer up!

Search for "Kündigung vor Beschäftigungsbeginn" (Cancellation before the start of employment)

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".

  • By "DA", do you mean "District Attorney"? The legal system in Germany is very different: it is a civil law system. Also, they won't sue for fraud, they will sue for breach of contract - fraud is a criminal matter. – Martin Bonner Oct 12 '17 at 15:59
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I don't know if my answer will help you, but I was in the same situation.
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.
They had my Tunisian address and my complete name, and of course my signature in the contract.
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.
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 ..

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