Strukturfragen des Dienstvertrages

Although contracts for freelance services and contracts of employment are two of the most important types of contract in legal practice, the abstract substance of the duty of the party obliged to perform the services is seldom questioned. Kerstin Tillmanns characterizes both types of contracts for services as contracts of controlled performance. In doing so, she differentiates between these contracts and contracts for work and services, in which the party undertakes to bring about a particular result, and shows the boundary of the admissibility of success-related remuneration components in the contract for services. She rejects attempts to adapt the substance of the duty to the criterion of average kind and quality (Section 243 Paragraph 1 of the German Civil Code), and maintains that the substance of the duty is to be determined according to the objective, individual performance of the party obliged to perform the services. If these services are not suited to the functions to be performed, this has to have an effect on the obligation of the other party.