Contracts

There are different types of contracts for different employment relationships (see Types of employment), collaborations, live performances and projects. This module outlines the most important contracts used in the cultural sphere in Germany and provides some general information on the conclusion of contracts as well as breaches of contract and possible consequences (the statements are based on German law).

The information on the conclusion of contracts should be considered particularly if one of the contract partners is headquartered abroad. If misunderstandings arise in dealing with foreign partners – which can happen quickly due to different cultural norms – one often feels especially helpless.
It is particularly important to take into account those aspects that only come into play in cross-border activities; for example, when agreeing on a dancer’s remuneration, the applicable foreigner’s tax should be considered. These aspects are also relevant if it is necessary to determine who bears the cost of transport for an exhibition project or which country’s law applies in the event of a dispute when domiciles and places of business of the parties to the contract are located in different countries.

In Germany, many model contracts are available for different needs. These are provided by professional associations in the cultural sector, for example (see associations and organisations in the fields of performing arts, visual arts and music).
touring artists has commissioned the annotation and, in some cases, the drafting, of several contracts (see model documents on the right). These apply to the fields of performing and visual arts, but not to the large and diverse music sector.
The explanations provided should be of interest to artists and persons in the cultural sector who are presented with a contract by a German contractual partner. Furthermore, they also outline what must be considered with regard to certain points when drafting a cross-border contract.
The model contracts are intended to serve as orientations aids and should be adapted to the respective situation or customised to reflect the specific negotiations.

In addition, it is essential to be familiar with some basic principles of contract law that will help you draft an adequate contract yourself. Some basic principles are outlined here:

In principle, there is general freedom of contracts in Germany. This means that anyone has the right to conclude freely composed contracts. A distinction is made between freedom to enter into a contract and freedom of scope, i.e. freedom to choose contractual partners, freedom of content, freedom of form and freedom of cancelation (see information provided by the Federal Agency for Civic Education - only available in German).

• Freedom to enter into a contract is the right to decide whether, where, when, how and with whom to conclude a contract.
• Freedom to choose contractual partners means that one can freely choose one's contractual partner.
• Freedom of content (or freedom of scope) is the right to freely determine the content of the contractual provisions.This also means that completely new types of contracts not provided for by law can be created (freedom of type) and are only limited by type coercion (Typenzwang) in certain areas.
• Freedom of form refers to the fact that contracts can generally be concluded without the need to observe a certain form or that one is free to choose a form not mentioned in the relevant legislation. However, this does not apply if a legal form is prescribed, e.g. in the case of an insurance contract. In such cases, the legally prescribed form ensures legal certainty.
• Freedom of cancelation means that contractual partners may cancel contracts that have already been concluded by mutual argeement. Unilateral termination of the contract is not permitted.

In Germany and the EU, however, general contractual freedom is limited by numerous exeptions, e.g. by

• general prohibitions of unlawfulness, immorality and extortion,
• regulations concerning general terms and conditions,
• the prohibition of discrimination on the basis of ethnicity and origin, sexual orientation, religion, disability, etc. in accordance with the General Act on Equal Treatment (AGG),
• labour law,
• regulations in the case of compulsory insurance and
• rules on consumer protection and public services.

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