During a trip to the national team at the beginning of November, he had contact with a club colleague who had tested positive for Corona. As a result, he had to go into domestic quarantine and was not allowed to participate in the upcoming matches of the national team and his club. Due to a later further contact with a person who tested positive in his private environment, Kimmich’s period of quarantine was renewed.

The footballer’s employer, FC Bayern München, subsequently decided to dock Kimmich’s pay and that of other colleagues who had not been vaccinated for the duration of the quarantine ordered by the authorities. The measure was intended to increase the pressure on the remaining unvaccinated players in order to prevent individual players from being regularly unavailable to the employer for assignments in the Bundesliga or Champions League.

From a legal point of view, the question arises whether it is lawful for employers to act in this way towards their employees.
The German Civil Code (BGB) stipulates that employees who do not perform their work do not receive a salary.
However, the Infection Protection Act (Infektionsschutzgesetz, IfSG) stipulates that those who have to go into quarantine by order of the authorities should not be subject to any loss of wages. Affected workers are therefore paid monetary compensation.

However, the IfSG has an exception since summer 2020. According to this, no monetary compensation is paid to anyone who could have avoided quarantine by taking advantage of a vaccination that was publicly recommended in the area of the affected person’s usual place of residence. Kimmich could therefore have avoided his quarantine by taking advantage of a Corona vaccination. There is therefore a legal basis for not paying the salary for the period of quarantine for unvaccinated persons.

In the meantime, it has become known that the footballer Kimmich is actually currently ill with Corona. Kimmich, and workers in general, whether vaccinated or not, will receive compensation for this period of absence from work through continued payment of wages in the event of illness.

Author: Patrick Stumpp

Der Beitrag No salary for unvaccinated people in quarantine erschien zuerst auf Rechtsanwälte Seidler & Kollegen.

The case before the Higher Regional Court concerned a father (testator) with two sons. In March 1996, the father concluded an inheritance and compulsory portion waiver agreement with the first son (plaintiff) and appointed the second son (defendant) as his sole heir in a will in April 1996.

Many years later, in August 2009, the father and the first son concluded another notarised contract in which both declared in agreement to annul the contract of March 1996. When the father died in 2017 and was undisputedly inherited by the second son alone on the basis of the will of April 1996, the first son claimed the compulsory portion against his brother as sole heir.
The sole inheriting brother (defendant) refused the compulsory portion on the grounds that the termination agreement of August 2009 was invalid because the father had no longer been legally competent at that time, citing examinations of his father in 2003 and 2004, in which a neurologist had diagnosed mnestic deficits in the father, as well as further examinations by a neurologist in January 2009, in which the father was diagnosed with moderately pronounced dementia with Alzheimer’s disease.

The first son (plaintiff), on the other hand, refers to the notarial termination agreement of August 2009 and argues that the notary – as can be read at the beginning of the document – had convinced himself first-hand of his father’s legal capacity in the course of the notarisation, so that there could be no doubt about this. The father knew about the significance of his declarations before the notary. The termination agreement of August 2009 was therefore effective and his waiver of the compulsory portion of March 1996 was therefore irrelevant.

The Higher Regional Court upheld the second son, the sole heir, and dismissed his brother’s action for information and payment of the compulsory portion. In doing so, the court essentially dealt with the evidentiary value of the notary’s finding on the father’s capacity to contract and stated in this regard that a psychiatric specialist qualification is required for the assessment of the medical prerequisites of the capacity to contract/test. According to the court, a notary does not have the necessary medical expertise to assess the extent of a dementia disease. His testimony, as well as the testimony of other persons who were in social contact with the testator during the period in question, had no particular probative value due to the lack of professional qualification.

Conclusion: If the testamentary capacity is to be proven with certainty, neither a confirmation of the notary nor the certificate of the family doctor is sufficient. What is required is a diagnosis by a neurologist.

Author: Dr Klaus Krebs

Der Beitrag On the effectiveness of statements on testamentary capacity erschien zuerst auf Rechtsanwälte Seidler & Kollegen.

In the event of a company closure due to a general lockdown ordered by the state, the employer is not obliged to continue paying wages.
The Federal Labour Court (Bundesarbeitsgericht, BAG) has ruled that a mini-jobber is not entitled to wages if she was unable to work due to the pandemic-related official closure order (Urt. v. 13.10.2021, Az. 5 AZR 211/21).

The employer operates a trade in sewing machines and accessories. The plaintiff has been employed as a marginal employee at the branch in Bremen since October 2019. The monthly wage amounts to € 432.00. As of April 2020, the shop was no longer allowed to open due to the general lockdown. The company then introduced short-time work for some employees.

This was not possible for others – such as the employee who later filed the complaint. As a marginally employed person in a mini-job, she could not receive short-time work benefits due to the lack of legal requirements. The employer therefore did not pay her wages for the lockdown period in April 2020. The employee now sued for continued payment of wages. She based her legal opinion on the fact that the closure of the business due to official orders was a case of operational risk to be borne by the defendant as employer. Operational risk is understood to mean that the employer must pay its employees their wages even though it cannot employ them.

After the first two instances had ruled in favour of the plaintiff, the Federal Labour Court has now dismissed the action. The court did confirm that the principles of operational risk should not be changed. However, the court was now of the opinion that the employer did not bear the risk of a loss of working hours if, in order to protect the population from serious and fatal courses of disease, official orders closed down all facilities not necessary for the care of the population almost nationwide. This situation did not concern the operational risk inherent in a particular enterprise. Rather, the impossibility of work was the consequence of a sovereign intervention to combat a dangerous situation affecting society as a whole. However, the employer was not liable to pay for this.

The court thus clarified that if nationwide plant closures for reasons of health protection affect society, employers and employees as a whole equally as a sovereign act, the financial consequences are also not to be borne by the employers.

The Oberbadische Zeitung

Der Beitrag No obligation to continue to pay wages in the event of a Corona lockdown erschien zuerst auf Rechtsanwälte Seidler & Kollegen.

Timely succession planning can help here. Several variants are conceivable. If all of the aforementioned persons are to be considered, the community of heirs, which is prone to disputes, can be avoided by designating one heir in a will, e.g. the second wife as the husband’s heir, and the other persons, i.e. in particular the children from the husband’s first marriage, with legacies. In the same will, the wife names the joint children as her heirs – depending on their age, possibly under execution of the will – and provides the husband with a legacy, e.g. usufruct of the house. The advantage of this is that the wife’s assets are not transferred to the husband in this way. Otherwise, the husband’s children from his first marriage would participate in his estate upon his death, e.g. by asserting claims to a compulsory portion.

Another variant is to provide for the children from the first relationship with advance gifts in such a way that in the event of inheritance their claims, in particular claims to the compulsory portion, are covered or at least greatly reduced. This can be achieved by always giving gifts with the verifiable stipulation that this will be done by offsetting against compulsory portion rights.

The most certain way to ensure that children from other relationships no longer interfere with the estate planning is to waive the compulsory portion of these children. Such a waiver must be notarised once the modalities have been determined. Experience shows, however, that no waiver of the compulsory portion is made without consideration, i.e. the waiving child will demand money for his or her waiver. How much that is remains a matter of negotiation. The current amount of the claim is only one criterion.

It is also conceivable that the relationship with the child or children from the first marriage has cooled down for whatever reason and they are not to be considered at all, not even within the framework of a waiver of the compulsory portion with settlement. In this case, there are some pitfalls to be aware of.
It would be too short-sighted for the spouses to appoint each other as heirs. For if the second spouse dies, this would not give rise to any claims on the part of the children of the longer-lived spouse from his or her first marriage, because there is no relationship of kinship between the testator and these children.
The problem, however, is that the assets now accumulate with the longer-living spouse with the consequence that – if he or she dies later – his or her children from the first marriage participate in this large estate with their compulsory portion claims.
The other way round is not without problems either: if the partner with children from the first marriage dies first, their compulsory portion claims can be very high and cause the asset situation of the longer-living partner to falter.
Which measures are to be used to counteract this is always left to an examination of the individual case.

Author: Dr Klaus Krebs

Der Beitrag Wills for the second marriage erschien zuerst auf Rechtsanwälte Seidler & Kollegen.