Black money agreement via WhatsApp = no remuneration for work

A contractor from Bochum is not paid for renovation work in Düsseldorf. Although he and also the client denied this, the Düsseldorf Higher Regional Court was convinced, among other things on the basis of a WhatsApp message, that the parties had entered into a so-called “black money agreement”.

Key Facts

The Düsseldorf Higher Regional Court ruled that the building contractor did not receive any remuneration for the work due to an agreement to pay illegal sums.
The agreement violated § 1 SchwarzArbG, as work was carried out without an invoice and VAT.
The contractor carried out renovation work in Düsseldorf in 2016 and 2017.
He received several hundred thousand euros in advance payments without an invoice during the work.
In a WhatsApp message, the contractor asked for the payment to be split in order to avoid taxes.
The Senate was convinced that the term"F..." referred to the tax office and concluded from this that there was an agreement.
The building contractor's lawsuit failed due to the conviction of the existing black money agreement.

For this reason, the 21st civil senate of the Düsseldorf Higher Regional Court ruled that the building contractor was not entitled to any remuneration for work. On the contrary, the underlying contract violated Section 1 of the German Black Labor Act (SchwarzArbG) because the parties had agreed that the work was to be performed without the issuance of an invoice and by reducing the remuneration for the work by the value-added tax.

In 2016 and 2017, the contractor had performed extensive renovation work for the client in Düsseldorf. During the construction work, the paid to the contractor without invoice several hundred thousand euros as down payments. Regarding another progress payment, the contractor asked via WhatsApp to split the payment by bank transfer to two different accounts, “so that not so much to the eyes of F…. comes”.

After completion of the work, the contractor said he was still entitled to around 275,000 euros, which he sued for. The lawsuit failed because of the black money agreement: the Senate was convinced that “F….” in the WhatsApp message had meant the tax office. This was supported not only by the further circumstances, but also by the fact that the building contractor became entangled in contradictions when he tried to explain who should have been meant instead.

Author: Marian Härtel

Marian Härtel ist Rechtsanwalt und Fachanwalt für IT-Recht mit einer über 25-jährigen Erfahrung als Unternehmer und Berater in den Bereichen Games, E-Sport, Blockchain, SaaS und Künstliche Intelligenz. Seine Beratungsschwerpunkte umfassen neben dem IT-Recht insbesondere das Urheberrecht, Medienrecht sowie Wettbewerbsrecht. Er betreut schwerpunktmäßig Start-ups, Agenturen und Influencer, die er in strategischen Fragen, komplexen Vertragsangelegenheiten sowie bei Investitionsprojekten begleitet. Dabei zeichnet sich seine Beratung durch einen interdisziplinären Ansatz aus, der juristische Expertise und langjährige unternehmerische Erfahrung miteinander verbindet. Ziel seiner Tätigkeit ist stets, Mandanten praxisorientierte Lösungen anzubieten und rechtlich fundierte Unterstützung bei der Umsetzung innovativer Geschäftsmodelle zu gewährleisten.