Do guest performance contracts with the theaters have to be in writing?
Time and again, directors come to me and report that a guest performance contract is not honored by the theater at the last moment on the grounds that such a contract “requires the written form” and that a verbal agreement about a production alone is not effective. In other words, the theater cancels a jointly planned production shortly before the start of rehearsals and wants to avoid paying the (possibly pro rata) remuneration to the directors. However, they have already reserved the agreed period for the production and therefore usually do not receive a new commission at short notice – the schedules for the coming season have long been fixed.
If the theater terminates the director’s guest performance contract without having a special right of termination, the agreed remuneration must generally be paid at least proportionately, see http://kanzlei-laaser.com/rechtsgebiete/vertragsrecht/.
According to NV Bühne, employment contracts must be in writing, cf. I p. 2 NV Stage. A guest performance contract within the meaning of § 1 para. V NV Stage, the provisions of the NV Stage are not applicable – apart from a few exceptions. Accordingly, the formal requirement of § 2 para. I p. 2 NV stage does not apply. This means that guest performance contracts can be concluded verbally.
In case of doubt, the question arises as to whether the parties have already reached a sufficiently definite agreement on all issues to be clarified and thus whether there is a so-called intention to be bound. The party claiming that the contract has been concluded must also prove this. Email correspondence between the house and the directors can also be helpful here.
The commencement of contract negotiations creates certain obligations for both parties, e.g. to inform the other party of any circumstances that could lead to the contract not being concluded. “When negotiating an engagement, all accompanying declarations and other circumstances that are likely to mislead the negotiating partner into believing that he could definitely expect an engagement are relevant for the determination of fault at the conclusion of the contract. A theater manager is therefore obliged to make unambiguous and immediate declarations.”see Praxishandbuch Theater- und Kulturveranstaltungsrecht, Kurz/Kehrl/Nix, Edition 2, Chapter 5 para. 37.
Conclusion
The theater already has pre-contractual obligations before a contract is concluded. It can therefore be liable for damages even without a contract.
