Annahmeunmöglichkeit und Lohnrisiko

Christoph Boës first examines the question of the conditions under which an employee is entitled to receive remuneration even though they were temporarily unable to work due to a disruption in normal business operations (the so-called impossibility of acceptance). Under current law, both sentences 1 and 3 of § 615 BGB appear equally relevant. Which of the two provisions applies depends decisively on whether default in acceptance is excluded by the simultaneous occurrence of impossibility of performance. On the basis of a historical and teleological analysis, the author concludes that this question must be answered in the negative for general contract law as early as 1 January 2002. Accordingly, default in acceptance inherently also covers employment law constellations involving impossibility of acceptance. By contrast, § 615 sentence 3 BGB proves to be merely a declaratory reference to the requirements of sentence 1. Boës then turns to the limits of the employee's claim to continued remuneration. An exclusion of the claim may be considered in particular where the cause of the disruption does not affect only a single business but impacts a large number of businesses on a widespread basis. Up to now, no convincing solution to this problem has been found. The author proposes a delineation based on the concept of default in acceptance, which should capture only those impediments to performance that lie "in the person" of the creditor. The counterpart to this, in the view of the legislature, consists of purely objective impediments to performance. By abstracting from any conduct of the debtor or creditor, such impediments can be identified with legal certainty in individual cases by reference to the specific contractual performance owed.