Obligation to provide services in household and business: Definition and Legal Framework
The obligation to provide services in household and business is a central concept in German civil, labor, and tax law. It concerns personal or economic activity rendered based on an obligation arising from a contractual relationship, or due to social or family ties. Within the household and in business, services are primarily performed to accomplish everyday tasks such as household management, childcare, care provision, as well as entrepreneurial and freelance activities.
Conceptual Distinction: Service and Service Obligation
A service, in general, refers to an activity performed for the benefit of another, which is not a work performance under a contract for work and services (§ 631 BGB), but rather a continuous, often dependent and personal service. The ‘service obligation’, in turn, refers to the binding obligation of a person to perform a personal or economic service, based on legal, contractual, or family requirements.
Forms of Service (Obligation) in Household and Business
- Household-related services: This includes housekeeping, cleaning, gardening, child-rearing, or care services.
- Service in business: These include contractual obligations within companies, service agreements in liberal professions, and self-employed services (e.g., consulting, transport, brokerage).
Legal Regulations in Civil Law
Service contract (§§ 611 ff. BGB)
Central to the service obligation is the service contract under German law (§ 611 German Civil Code – BGB). The contractual relationship obliges the service provider to perform the agreed services, without owing a specific result. A typical example is the employment relationship. In the household, this obligation may arise, for example, through employed domestic help, caregivers, or within the context of family law relationships.
Obligations Arising from the Service Contract
- Primary obligations: Personal provision of the service, duty of care, loyalty.
- Secondary obligations: Confidentiality, protection of privacy, consideration.
Service within Marital and Family Law Relationships
Spouses and life partners owe each other support, loyalty, and care (§ 1353 BGB). The obligation to provide household-related services pertains to the partnership but generally does not constitute a legally enforceable claim, except in special cases (e.g., under maintenance law).
Children and parents can, under certain circumstances, be obligated to provide services, e.g., within the framework of maintenance claims or parental care (§§ 1601 ff., §§ 1626 ff. BGB).
Service Obligation in Labor Law
The obligation to provide services is one of the central primary obligations of the employment relationship (§ 611a BGB). The employee is required to perform the services agreed in the employment contract. In the household, this applies, for instance, to domestic workers, childminders, or caregivers.
Content and Scope of the Service Obligation in the Employment Relationship
- Working hours and workplace: Determined by contract or the employer’s right to issue instructions.
- Obligations of loyalty and confidentiality: Protection of trade secrets, prohibition of competition.
- Contractual and statutory boundaries: Compliance with the Working Hours Act, maternity protection, youth labor protection.
- Termination in case of refusal to provide services: Violation of the service obligation can lead to a warning or dismissal.
Service (Obligation) in Self-employment and Freelance Professions
In business and freelance activities, the service obligation establishes the responsibility to properly perform the assumed tasks. In addition to the Civil Code, industry-specific regulations apply here, such as the Commercial Code (HGB) or professional statutes.
Service Obligation in Tax Law
Household-related services and services in business are significant for tax purposes. According to § 35a EStG, expenses for household-related services can, under certain conditions, be deducted from taxes. Companies can have expenses for services recognized as business expenses.
Distinction from Other Types of Contracts
The service obligation differs significantly from the obligation in a contract for work and services (§ 631 BGB), as the latter requires a specific result. Other primary and secondary obligations arise in lease, loan, or work contracts.
Compulsory and Mandatory Services
Certain service obligations may also arise from statutory provisions, e.g., within the scope of official duties (volunteer work, legal representation) or public obligations (reporting duty, service to the community). In the private sector, however, compulsory services are strictly limited by fundamental rights (Art. 12 Basic Law, freedom of occupation).
Termination of Service Obligation
The service obligation regularly ends upon fulfillment, expiration of time, termination, or for extraordinary reasons (e.g., impossibility, death, termination for cause under § 626 BGB in employment relationships).
Rights and Claims in Case of Breach of Service Obligation
If the obligated person fails to fulfill their service obligation, claims for damages, substitute performance, or—under continuing obligations—for termination may arise. Additional labor law sanctions are possible in employment relationships.
References and Further Legal Sources
- German Civil Code (BGB), in particular §§ 611 ff., 631 ff.
- Commercial Code (HGB)
- Income Tax Act (EStG), especially § 35a
- Basic Law (GG), especially Arts. 2, 12
- Working Hours Act (ArbZG)
- Case law of the Federal Labor Court (BAG)
The service obligation in household and business is a complex legal term, the significance of which encompasses numerous regulations in civil, labor, and tax law. The precise legal classification depends on the individual subject matter, the contractual relationship, and the respective social or economic context.
Frequently Asked Questions
What legal prerequisites apply to the obligation to perform services in the household?
In legal terms, the obligation to perform services in the household is primarily governed by the German Civil Code (BGB), especially in relation to family and employment relationships. The most important foundations arise from marital and family law (§§ 1356, 1360 BGB), under which spouses and life partners are obliged to contribute to the family through work and assets. The exact arrangement of such services, such as housework or childcare, must be agreed upon in each case within the context of the marital partnership, with no legal requirement for a specific division or quantification of household duties. Immediate compulsory enforcement of household services is, however, inadmissible; in other words, breaches of duty cannot be judicially enforced or executed. Nonetheless, non-fulfillment may have an impact on maintenance claims or divorce proceedings. Outside family relationships, such as for employment in a household, the general provisions of labor law apply, which include in particular the Proof of Employment Act, the Minimum Wage Act, and obligations to register for social security.
To what extent does the service obligation in the household differ from that in business from a legal perspective?
Legally, the service obligation in the household differs fundamentally from that in business. Within the household, service obligations are mainly based on family law requirements (§§ 1353–1362 BGB) and focus largely on voluntary participation, protection of personality, and the principle of consensus. In contrast, employment law, especially §§ 611a ff. BGB, governs business arrangements between employers and employees. Here, the parties enter into an employment contract that specifically regulates the type, scope, and remuneration of the owed service, and work performances may, under certain conditions, be expressly required and, in case of disputes, enforced in court. Violation of the service obligation in business may result in individual labor law sanctions such as warnings, dismissal, or claims for damages, while in the household possibilities for sanctions are limited and mainly lead to claims for maintenance or asset adjustment.
Are there statutory upper or minimum standards for the scope of services in the household?
The law does not provide precisely defined upper or lower limits for the scope of services in the household. Instead, the required contribution is based on the prevailing living conditions of those involved and their individual capabilities (§ 1360 BGB). This means that economic, health-related, and professional circumstances must all be taken into account. In contrast to regular employment, where working time laws and collective agreements apply, there are no legal requirements for working hours or rest times in managing a private household. However, in the case of individuals employed in the household (e.g., domestic helpers), labor law protection applies, especially the Working Hours Act (ArbZG) and the Minimum Wage Act, so that minimum standards—such as a maximum of 48 hours per week or minimum wage entitlements—can be legally enforced.
Under what conditions is remuneration for services in the household required?
Remuneration for services in the household is generally only required if there is a contractual employment relationship, such as when employing a maid or domestic helper for whom an employment contract is concluded and labor and social security regulations have to be observed. Within family or partnership relationships, the principle of gratuitous cooperation applies. Remuneration arises only on a contractual basis or as compensation in special circumstances—for example, during separation or for proven extraordinary services, as may be recognized for family care or special provision under certain circumstances. To avoid misunderstandings, it is advisable to set out employment relationships in writing even in private households, to clearly and securely define claims.
How can disputes over the scope or fulfillment of the service obligation in household or business be legally resolved?
Disputes regarding the service obligation in the household generally cannot be enforced by a court, since the law does not allow for compulsory enforcement of personally rendered services (§ 888 ZPO). However, violations may indirectly affect asset or maintenance claims (e.g., in divorce or asset equalization proceedings) and, in individual cases, be established as a disturbance of cohabitation before the family court. In business, on the other hand, it is possible to enforce the agreed service by legal action, claim damages for non-fulfillment, or to initiate measures under employment protection law in response to contractual breaches. Jurisdiction lies with the labor court, or for household employment, with the competent labor court at the employer’s place of residence.
To what extent are there obligations to register and contribute to social insurance for services provided in the household?
Anyone who pays for services by third parties in their household is obliged to report the employment to the Minijob Centre or the responsible pension insurance institution and, if applicable, pay contributions to social insurance (Social Security Code IV, § 7 SGB IV, and § 8 SGB IV). For so-called mini-jobs, special registration systems and flat-rate contributions apply. If services are provided free of charge as part of family obligations, there are no obligations to register or pay contributions for social insurance. For family caregivers who perform particularly time-consuming care responsibilities, pension insurance entitlements can be acquired under certain circumstances through the nursing care fund.
What impact does the service obligation have on maintenance law?
In maintenance law, the service obligation is a key factor in calculating so-called family maintenance (§ 1360 BGB) and care or household maintenance. The provision of household or care services can reduce maintenance claims, as they are valued as a non-monetary contribution to family support. If one partner does not fulfill their service obligation, this may, under certain conditions, lead to an increased cash maintenance claim for the other. In the context of separation and divorce consequences, maintenance is often determined according to how the services provided so far are to be assessed and whether they create an obligation to earn, for example, when after separation a formerly house-managing partner is expected or required to take up employment.
