§ 627 BGB: Influencer contracts termination exclusion | IT-Medienrecht

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Legal Classification and Exclusion of Section 627 BGB in Trust-Based Contracts

Contracts between influencers and their agencies or between managers and artists are often based on a close relationship of trust. Both parties depend on long-term collaboration. However, this inherent trust can create a loophole for termination without notice under German law.

Specifically, Section 627 of the German Civil Code (BGB) allows for extraordinary termination of certain service contracts "at any time" and without good cause. This poses a significant risk for agencies and managers. An influencer or artist could unexpectedly withdraw from the contract, even if the collaboration was intended for the long term.

This article provides a detailed analysis of Section 627 BGB. We explain the conditions under which this special right of termination applies. Furthermore, we explore how and whether Section 627 BGB can be contractually excluded to ensure a stable commitment. We also analyze the limits and permissibility of such an exclusion in long-term agreements.

Our discussion will consider contracts emphasizing long-term cooperation and mutual trust. We will also highlight differences between the exclusive manager model (one manager – one artist) and the agency model with multiple influencers. Finally, we draw parallels with player consultants in professional soccer.

Understanding Section 627 BGB

Section 627 of the German Civil Code (BGB) is part of German service contract law. It grants an extraordinary right of termination without good cause for specific employment relationships. This applies to service contracts of a special nature, which involve "services of a higher nature" and are based on special trust.

Examples from legal practice include contracts between clients and lawyers, patients and doctors, or artists and managers. In these situations, no contractual partner should be forced into a personal service relationship against their will if the trust is broken. This holds true even if there is no traditional "good cause" as defined by Section 626 BGB.

Simply put, if a service contract involves a special relationship of trust and remuneration is not based on fixed periods, either party can terminate the contract at any time without notice. Unlike Section 626 BGB, which requires good cause, Section 627 BGB does not require any justification. It is a statutory right reflecting the personal elements of the contractual relationship. This provision protects the autonomy of both parties, allowing immediate termination if trust is lost.

Requirements for Applying Section 627 BGB

According to Section 627 (1) BGB, two important requirements must be met:

If both conditions are met, Section 627 BGB allows both parties to terminate the contract at any time without notice. This right exists in addition to other termination options, such as ordinary termination with notice or termination for good cause under Section 626 BGB.

This provision is particularly relevant for those seeking a quick termination without meeting the strict "good cause" standard. Often, it is the client (influencer/artist) who is dissatisfied or has lost trust. However, the service provider could also utilize this right, for example, if the collaboration becomes unacceptable due to serious breaches of trust by the artist.

Legal Consequences of Termination under Section 627 BGB

Termination according to Section 627 BGB takes effect immediately upon receipt of the notice. The law provides some protection against abuse in Section 627 (2) BGB: the terminating party must pay compensation if the termination occurs at an "inopportune time." This prevents termination shortly before a major project's completion, for example.

In our context, if an artist terminates their manager during an important ongoing campaign without good cause, they may have to compensate the manager for expenses or lost commissions. Nevertheless, the contract itself ends, and only subsequent compensation claims remain.

In summary, Section 627 BGB reflects the fragility of relationships of trust. No one should be forced to continue a close personal collaboration if the foundation of trust is missing. This significantly impacts long-term influencer marketing and artist contracts, which are nearly always based on personal support and often remunerated on a success basis.

Applicability to Contracts Between Influencers and Agencies

Let's specifically examine influencer agency contracts or artist-manager contracts. To what extent do such business relationships fall under Section 627 BGB? In legal practice, the answer is usually: Completely.

Typical contractual arrangements in the media and entertainment industry generally fulfill the aforementioned requirements:

  1. Personal Relationship of Trust: An artist or influencer entrusts their manager/agent with sensitive career areas, including contract negotiations, public relations, and strategic decisions. This relationship is highly personal and comparable to traditional artist-manager or player-consultant relationships. Courts have repeatedly confirmed these are services based on special personal trust.
  2. Impact of Manager's Skill: An influencer's success depends not only on their creativity but also on the manager's skill and commitment. Conversely, the manager invests time and reputation in their protégé. A bond of trust develops, similar to an entrepreneur with a management consultant or an athlete with their agent. For example, as early as the 1980s, the Federal Court of Justice (BGH) classified artist management contracts as services of a higher nature, affirming the fundamental applicability of Section 627 BGB.
  3. No Remuneration by Time Period: In practice, influencer managers are typically paid via commissions (e.g., 20% of commissions or sponsorship income procured by the agency). Fixed salaries are uncommon. This means remuneration is performance-related and not tied to fixed time intervals, fitting the scope of Section 627 BGB. If a manager were employed on a fixed monthly lump sum, Section 627 BGB would not apply. However, most agency contracts lack such fixed remuneration, making Section 627 BGB applicable.

The combination of personal support and the commission model means that influencer contracts generally fall under Section 627 BGB, unless otherwise agreed. For agencies and managers, this implies that the influencer can terminate the contract immediately at any time without special contractual precautions. This applies regardless of any specific term or notice period stipulated in the contract.

Even a contractually agreed multi-year commitment could be effectively nullified by a Section 627 BGB termination. The law allows these obligations to be broken. Consider this example: an agency signs a two-year contract with an influencer, allowing ordinary termination only at the contract's end. After one year, the influencer wants to switch agencies.

Without a clause excluding Section 627 BGB, the influencer could invoke their statutory right of termination and leave immediately. The remaining year of the contract would be void. The agency might be left without compensation, except for a possible claim for damages in cases of "untimeliness," which is often uncertain and difficult to quantify in practice.

From a manager's perspective, Section 627 BGB is thus a source of danger. It can undermine all investments made in building a talent's career. This is particularly difficult for exclusive contracts with a fixed term, which are also not secure. Therefore, there is a strong interest in limiting or excluding this right of termination at any time to create planning security.

Contractual Exclusion of Section 627 BGB: Prerequisites and Limits

Given the far-reaching consequences, the critical question arises: Can Section 627 BGB be excluded by contract? Can parties agree that this statutory right of termination should not apply, leaving only the contractual termination provisions? The basic answer is: Yes, exclusion is possible, but only under specific conditions and with certain restrictions.

Dispositivity of the Norm

Firstly, Section 627 BGB is not a mandatory consumer protection provision. Instead, it is dispositive law, meaning contracting parties can, in principle, agree to different terms. The principle of freedom of contract applies, especially in commercial transactions (B2B). An influencer operating commercially and an agency can agree to waive the immediate right of termination.

Even if an artist might formally be classified as a consumer, Section 627 BGB is not an unrestricted right. Unlike some other termination rights, there is no explicit legal prohibition against its exclusion. The prevailing legal doctrine therefore holds that Section 627 BGB can be waived, provided no other legal limits are violated.

Individual Agreement vs. General Terms and Conditions

However, the crucial factor is how the exclusion is agreed. If an individually negotiated contract expressly states, for example, "The application of Section 627 BGB is excluded by mutual agreement," this is generally effective. Both parties consciously waive the statutory right of termination. Such a waiver is comparable to other contractual arrangements, like excluding ordinary termination for a specific period. As long as the influencer enters the waiver voluntarily and with full information (ideally with legal advice), it is valid.

The situation may differ if the exclusion is hidden in the General Terms and Conditions (GTC). Agencies often use standard contracts for all their talent. A clause might read: "Section 627 BGB does not apply. Ordinary termination is excluded before the end of the minimum term." In a dispute, a court would examine this clause under the standards of Sections 305 et seq. BGB (control of general terms and conditions).

Section 307 BGB, prohibiting provisions that unreasonably disadvantage a contractual partner, is particularly relevant. A complete waiver of the statutory right of termination can be seen as a significant disadvantage for the influencer. It deprives them of an important right to shape the contract. Especially with long-term commitments, the influencer would lack any means of self-defense against a broken relationship of trust if Section 627 BGB were entirely abolished.

In the past, courts have viewed clauses that deny the beneficiary their right under Section 627 BGB with skepticism. For example, a contractual clause in a model agency contract that excluded termination before two years was declared invalid due to circumvention of Section 627 BGB. The inappropriateness lies in binding the influencer far more strictly than dispositive law allows, without compensation or special justification.

Transparency is also key. A clause must clearly indicate that the otherwise applicable right of termination does not apply. Hidden formulations or euphemisms (e.g., "long-term commitment is agreed") implicitly excluding Section 627 BGB do not meet these requirements. In case of doubt, they would be surprising and thus invalid, contrary to Section 305c BGB. Best practice is to regulate the waiver explicitly and clearly, for instance, in a separate paragraph.

Legal Limits on Exclusion

Even if formally and effectively agreed, the contractual exclusion of Section 627 BGB is subject to statutory limitations. These include:

Effective Design of an Exclusion Clause

To reliably exclude Section 627 BGB, a clear and fair contractual approach is recommended:

Despite all contractual possibilities, one fact remains: you can exclude Section 627 BGB, but you cannot solve the problem of lost trust itself. If personal chemistry is destroyed, no artist or manager will want to continue working together long-term, regardless of the contract. In practice, contractual clauses mean that a party wishing to leave prematurely must negotiate a termination or severance payment instead of leaving immediately. Legally, a valid exclusion offers considerable advantages for the agency: the influencer cannot unilaterally terminate without notice without risking contractual consequences.

Long-Term Contracts and Drafting Tips

Influencer and artist contracts are frequently designed for the long term. In this context, the exclusion of Section 627 BGB is particularly useful yet also vulnerable. Here are some relevant aspects for long-term contracts:

1. Intent of Long-Term Cooperation

Many contracts include a preamble or clause emphasizing the parties' aim for a trusting, long-term cooperation. An example, as mentioned, is: "This contractual relationship is designed for long-term cooperation and is based on mutual trust." Such wording highlights the special nature of the relationship. However, it is not sufficient on its own to exclude Section 627 BGB. On the contrary, it describes the exact situation where Section 627 BGB normally applies! Therefore, it is crucial to additionally clarify that there is no right of termination at any time.

2. Minimum Terms and Extensions

It is customary to specify a minimum term for long-term contracts (e.g., 2 or 3 years). During this period, ordinary termination—and, thanks to the exclusion of Section 627 BGB, extraordinary termination without cause—is not possible. After the minimum term, the contract often automatically extends for another year unless notice of termination is given. This mechanism respects the 5-year limit of Section 624 BGB, as the contract can be terminated after five years at the latest, while still creating a medium-term commitment.

The minimum term must be reasonable: the longer it is, the more likely a court might question its appropriateness, especially if the influencer was in a weaker position. Terms of between 1 and 3 years are customary and accepted in the industry. Longer terms require strong justifications.

3. Protection of Trust vs. Planning Security

Long-term cooperation in a trust relationship is a double-edged sword. While it relies on trust, losing it makes further cooperation difficult. However, a long-term strategy (e.g., for a rising influencer) requires consistency and planning security. At contract inception, both parties usually believe in mutual success and desire stability. The contract should reflect this desire without entirely ignoring the legitimate interests of both parties.

It is advisable to create a certain balance. For example, the contract could include a mechanism for mediation or discussions in case of conflict, before separation. Such soft clauses do not replace Section 627 BGB but indicate that the commitment is not blindly enforced if the relationship has broken down.

4. Example of a Balanced Clause Text

A simplified model contract clause could read:

"The parties acknowledge the special trusting nature of their cooperation. Nevertheless, they agree that an ordinary right of termination before the end of the contract term is excluded; Section 627 BGB does not apply. The contract term is 24 months and automatically extends by 12 months unless terminated with 3 months' notice to the end of the term. The right to terminate for good cause remains unaffected. In the event of significant trust issues, the parties shall first hold a clarifying discussion to find an amicable solution."

This clause balances interests in a long-term influencer contract. It prevents short-term departures while providing exit points and the option to invoke good cause. Important: Even the best clause is useless if it is ultimately ineffective. Therefore, avoid overly harsh wording. Words like "trust" and "long-term" have a positive justifying effect and can increase acceptance of a strict termination rule under Section 307 BGB, which considers overall circumstances.

5. Documentation of Long-Term Nature

Agencies often emphasize long-term support in marketing materials or verbal negotiations. Caution is advised: in a legal dispute, an influencer could argue they were unaware of not having an early exit option. It is therefore wise to document in writing (e.g., in a negotiation protocol or preamble) that the long-term commitment was consciously entered into. This makes it harder to claim later that the clause was surprising or misunderstood. Ultimately, long-term contracts are common and necessary in the industry. The exclusion of Section 627 BGB can be a game-changer, determining whether the planned term is truly valid. Careful wording and conscious agreement are key to enforcing the contract's long-term nature.

Difference: Exclusive Manager vs. Agency with Several Influencers

Not all mentoring relationships in the influencer or artist sector are identical. There are broadly two models:

  1. The Exclusive "Manager Model": Here, a manager or a small management company provides very intensive and usually exclusive care for a single artist (or very few). Examples include a music manager handling only one band or a personal agent for a top influencer. The relationship is often akin to personal management.
  2. The "Agency Model" with Many Clients: In this model, an agency has a pool of influencers/artists under contract. Each influencer is one of many, receiving similar services (e.g., arranging advertising deals, campaign management). Support is more personal than purely automated platforms, but agency resources are divided among many talents.

Differences Regarding Section 627 BGB and Termination Regulations

In summary, manager contracts are typically more individually tailored and potentially stricter in commitment, while agency contracts are standardized and tend to be for shorter terms. However, Section 627 BGB is relevant in both scenarios. From an influencer's perspective, it may make a psychological difference whether they are "just one of many" or have a personal manager to whom they owe loyalty. Legally, the right to terminate freely remains unless validly waived.

For managers and agencies, this means the contractual exclusion of Section 627 BGB should be reviewed regardless of the model. Enforcement and control may differ based on contract type (GTC control vs. individual contract), but the need to protect against sudden departures is universal.

Excursus: Professional Footballers and Player Consultants – Parallels and Differences

The world of professional soccer offers an illustrative comparative example. Here, too, closely confidential service contracts exist between players and their advisors/agents. Many professional footballers engage a player consultant who negotiates transfers, arranges sponsorship contracts, and acts as a career advisor. The situation is similar to artist managers in many respects:

In summary, player consultant contracts are a parallel field where Section 627 BGB theoretically applies similarly. It is often mitigated in practice by clever contract drafting. Experience teaches that short contract terms, combined with (where permissible) exclusion of the free right of termination, are common practice. The industry accepts this because trust is paramount, but also acknowledges that no one can be forced into a relationship indefinitely. Legal advice is common here; top players and consultants have their contracts reviewed by lawyers. Influencers and managers should learn from this: professional negotiation of contract terms ensures clarity.

Conclusion: Draft Contracts Carefully – Seek Legal Assistance

The legal analysis clearly demonstrates that Section 627 BGB can become a stumbling block for agencies and managers if ignored. If unregulated, this provision allows an artist or influencer to terminate a seemingly fixed commitment on short notice, should they lose confidence or receive better offers. For management, this means uncertainty. Investments in a talent's career may not pay off due to premature contract termination.

The good news is that this risk can be managed through proactive contract drafting. An effective exclusion or at least a restriction of Section 627 BGB is feasible and common in the industry. However, the wording of such a clause requires a balancing act. It must be clear, legally sound, and fair to hold up in an emergency. Particular care is needed when using standard contracts (general terms and conditions) to avoid falling foul of Section 307 BGB. It is also crucial to consider other termination rights, such as Section 626 BGB or the five-year clause in Section 624 BGB.

Agencies and managers should not hesitate to seek professional legal advice when drafting contracts with influencers or artists. A specialized lawyer in media and contract law understands the pitfalls and knows which clauses are accepted by courts. They can suggest suitable individual solutions, such as combinations of term, waiver of termination, and special termination rights, to secure the business relationship without unduly restricting the contractual partner.

From the agencies' perspective, it is essential to create contractual planning security. If investing in an influencer, the contract should prevent them from leaving overnight. Simultaneously, the contractual partner must feel they are treated fairly. A one-sided contract only provokes future termination attempts, potentially with judicial assistance. Legal precision and balanced drafting yield significant benefits here.

Ultimately, relationships of trust are sensitive. No contract can guarantee a broken relationship will continue, nor should it. Instead, the art of the contract lies in establishing clear rules for worst-case scenarios. This way, both sides know their positions, and in the event of a breakup, there's an orderly process instead of a legal vacuum or hasty actions. Managers and agencies optimizing their contracts in this way protect their business and signal professionalism. Influencers and artists signing such contracts understand what they are committing to, which ultimately fosters stable relationships based on trust.