A Vertragsstrafe (contractual penalty) requires the employee to pay a pre-set sum for a defined breach, for example not taking up the job or ending the contract early in breach of it. As a pre-formulated clause it is subject to fairness review (AGB-Kontrolle): the trigger and amount must be clearly defined and reasonable. An excessive or blanket penalty is void.
At a glance
- Permitted only for clearly defined breaches; the trigger and consequence must be transparent (§ 307 BGB)
- The amount must be reasonable; for not starting or an early breach-of-contract departure, usually at most one gross monthly salary, benchmarked to the notice period
- A blanket penalty for any breach is intransparent and void
- A void standard clause is not reduced to the permissible level but falls away entirely
FAQ
What can a penalty be agreed for?
For specifically named breaches, such as not taking up the job, an early breach-of-contract departure, or breaching a confidentiality or non-compete duty. A blanket "on any breach" automatism does not hold.
Must the employer prove a loss?
No. The penalty is forfeited regardless of any actual loss. A higher actual loss can, however, be claimed in addition.
Is a contractual penalty culturally appropriate?
Legally possible does not always mean advisable. A penalty signals distrust, can deter strong candidates and hurt employer branding, and is perceived very differently across countries. In a trust-based culture, people are retained through good conditions rather than the threat of penalties; keep it the exception for genuine, hard-to-quantify risks.
Last updated: August 2026
This article provides general information and is not a substitute for legal advice in individual cases.
Jonas Stoffel
