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Created on Thursday, 21 December 2006 00:00

Last Updated on Friday, 28 December 2012 18:40

Continuation Clauses in Admonishments

If ever you were admonished for disobeying certain rules like contractual duties or violated unfair competition law, you surely will have signed an admonishment subjecting you to pay damages and pay a contractual penalty in the case of future infringements.

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But what happens if you did exactly the same thing again?

Committing the mistake a second time, can you be forced to subordinate to another admonishment? This leads to the question of whether this is a new infringement or only a repetition of the first? In this case, the offender signed an agreement “unter Verzicht auf den Fortsetzungszusammenhang…” waiving the continuation context for a contractual penalty for the case that you repeatedly infringe a person’s right. This eliminates any question if this is repetition or a new infringement. It will be deemed a new infringement.

The offender tried to free himself in court from the contractual penalty with the argument that repeating the offense negligently is not covered by the above stipulation. The BGH (December 10, 1992, re I ZR 186/90) ruled in this matter that, of course, negligently repeating is another case of such admonished repetition.

“Fortsetzungszusammenhang” has a distinct meaning that individual actions are combined to a single one with intending all offenses in civil law. Therefore, the plain stipulation in a contractual agreement on a penalty for repetition cannot be so construed that it excludes negligence and only includes intentional violation.

Best, of course, would be to pay more attention in the future…