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Does this paper have value in court?
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OLG –
Shadow work: without
Invoice = without
Rights
Time and again, when it comes to craftsman services, attempts are made to maneuver the due invoice amount past the tax authorities. The small invoice advantage that can be achieved through this often stands in no relation to the possible damage.
The plaintiff wanted to have her driveway repaved. This was to be done as cheaply as possible. She wanted to procure the necessary material herself at a low cost. The defendant received the order to carry out the necessary work on the 170 m² driveway of the property. Price agreement: “1,800 euros without invoice.” As soon as the work was finished, significant unevenness appeared in the paving. An attempt by the defendant to make improvements was unsuccessful. The expert called in identified a fundamental defect: the sand layer under the paving stones was executed too thickly. To eliminate the defect, everything had to be ripped up again. Cost: over 6,000 euros. The plaintiff claimed this amount from the defendant as reimbursement of expenses.
Clear Case of Damage
According to regular contract law for work and services, the situation would have been clear: the defendant had worked defectively, his attempt to remedy the defect within the meaning of § 635 of the German Civil Code failed. The way to assert claims for reimbursement of expenses would have been open with a valid underlying transaction.
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Agreement on shadow work leads to the
Invalidity of the
Entire contract
As did the lower court, the Higher Regional Court (OLG) also dismissed the claim for damages. The senate found that the contractual agreement violated a legal prohibition. According to § 1 para. 2 of the Schwarzarbeitsgesetz (Law on Undeclared Work), the agreement on invoice exemption is prohibited. Such an agreement is clearly intended, according to the senate’s opinion, to unlawfully “save” taxes and thereby achieve a lower contract price. The violation of the prohibition law § 1 para. 2 Schwarzarbeitsgesetz leads, according to § 134 of the German Civil Code, to the invalidity of this agreement. Since a significant component of the contract for work and services is thus invalid, the invalidity of the entire contract is the mandatory consequence.
Shadow work must remain risky
The OLG senate expressly pointed out that contractual warranty claims cannot be derived from the principle of “good faith” according to § 242 of the German Civil Code either. This would, in effect, lead to circumventing § 1 Schwarzarbeitsgesetz. After all, with the “black money” agreement, a criminal offense, namely tax evasion, was prepared. Such conduct deserves no state protection. Therefore, it is not denied to the entrepreneur due to contradictory behavior to invoke the invalidity of the contract. In the end, the risk must remain associated with a “black money” agreement that no rights can be derived from the underlying basic transaction. Whoever places themselves outside the legal system by their own decision cannot expect help from this legal system in case of warranty. Otherwise, the legal system would protect such unlawful conduct. However, this would contradict the purpose of the provisions to curb undeclared work. As a result, the plaintiff ended up with nothing.
(Schleswig-Holstein Higher Regional Court, judgment of 21.12.2012, 1 U 105/11)
Source: my HP
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