• The Fifth Senate of Germany’s Federal Labor Court clarified that remuneration in the event of default of acceptance (Section 615 sentence 1 BGB) cannot be contractually excluded in advance in the event of an invalid termination by the employer or a termination that only takes effect later.
• Although the provision can, in principle, be contractually amended, this does not apply to the protection of livelihood.
• Remuneration is a typical economic basis of life and as such is specially protected.

As recently as March 2023, the Fifth Senate of the BAG ruled that employees could not demand remuneration for work not performed in the meantime following an invalid termination by the employer (BAG, March 29, 2023 – 5 AZR 55/19). Section 615 sentence 1 BGB, which upholds the claim to remuneration in the event of default of acceptance by the employer, had been effectively excluded in the employment contract for this case. In June 2025, the Second Senate asked the Fifth Senate whether it would uphold its previous ruling (decision, June 18, 2025 – 2 AZR 91/24).

Decision of the Fifth Senate of BAG

In its decision of January 28, 2026 (Ref. No.: 5 AS 4/25), the Fifth Senate of the BAG confirmed the fundamental possibility of excluding Section 615 sentence 1 BGB, which regulates the obligation to continue paying remuneration in the event of default of acceptance, in advance by means of a clause in the employment contract. This results from a review of the systematics and legislative...

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