A determination of performance within the meaning of section 315 (3) of the German Civil Code (Bürgerliches Gesetzbuch - BGB) can also be considered for bonuses owed under an employment contract if the amount is to be determined in the individual case at the employer's reasonable discretion.
Accordingly, courts have the possibility to determine the bonus amount themselves. In doing so, it must be guided by the parties' submissions and assess the relevant circumstances.
In particular, it is not incumbent on the employee to make a comprehensive submission on these facts relevant to the bonus amount if he cannot have knowledge of them.
Accordingly, it is important to establish a sufficient contractual basis for the structuring of bonus payments or similar. It is also important in labour law disputes to have a sufficient basis in the contract for the determination of the amount of the bonus.
In labour law disputes, too, the distribution of the burden of presentation and proof must be taken into account so that the chances and risks of a legal dispute can be determined in advance in order to arrive at a realistic assessment of the chances of success.
We are happy to represent you in the field of labour law in questions of contract drafting, individual claims, general out-of-court problems, but also, if necessary, before the competent courts.
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