What is a contractual parking penalty? Meaning, legal basis and examples

Many drivers first come across the term contractual penalty (Vertragsstrafe) on a notice tucked behind their windscreen wiper — after parking without permission on a private car park. But what exactly does this legal term mean, what is it based on, and how does it work in practice?

What is a contractual penalty?

A contractual penalty is a sum of money agreed in advance that becomes due if someone breaches a contractual obligation (§§ 339 ff. BGB, German Civil Code). For parking on private ground this means: the operator sets out in its conditions of use who may park, when and how — and which amount becomes due in the event of a breach.

A simple example: a hair salon has two parking spaces which, according to the sign at the entrance, are reserved exclusively for customers. A stranger leaves their car there and goes shopping. By parking, they have accepted the signposted conditions — including the contractual penalty they set out.

Legal basis in Germany

The contractual penalty for illegal parking rests on several building blocks of the German Civil Code and case law:

• Interference with possession: unauthorised parking on private property is unlawful interference (verbotene Eigenmacht, § 858 BGB). The possessor may in principle defend themselves through self-help (§ 859 BGB) — which includes having the vehicle towed.
• Usage contract: according to the Federal Court of Justice (BGH, judgment of 18.12.2019 – XII ZR 13/19), parking a vehicle on a suitably signposted private car park creates a usage contract.
• Contractual penalty and standard terms: the conditions are standard business terms (AGB, §§ 305 ff. BGB). They only become effective if they are clearly pointed out before parking — in practice through a clearly visible sign at the entrance. Disproportionately high amounts can be invalid (§ 307 BGB).

This shows when a contractual penalty can in principle be claimed:

• The car park is clearly signposted with the conditions of use.
• The person parking has breached those conditions (e.g. parking without authorisation).
• The amount claimed is reasonable.

The contractual penalty must be distinguished from damages: if the possessor has the vehicle towed, the towing costs must be borne by the person responsible as damages (BGH, judgment of 05.06.2009 – V ZR 144/08) — but only at the customary local rate (BGH, judgment of 04.07.2014 – V ZR 229/13).

Practical examples

1. Illegal parking on a private space

A vehicle stands for several hours on a clearly marked, rented space in a residential complex. The tenant photographs the vehicle with its number plate and the sign at the entrance. Because the signposted conditions provide for a contractual penalty, it can be claimed from the driver or keeper. If the space remains blocked, towing is also an option.

2. Blocked customer parking

A retailer offers its customers several parking spaces directly in front of the shop, clearly signposted as customer parking. Residents or commuters repeatedly occupy them, so customers can't find a space. For each individual breach of the signposted conditions, the operator can claim the contractual penalty — the key is to document every case properly.

3. Unpaid parking fee

A property management company operates paid visitor parking. According to the sign, an increased parking fee is due if no ticket is displayed. This is exactly the situation behind the 2019 BGH ruling, which concerned an increased parking fee of €30. If the keeper denies having driven, they must, as part of their secondary burden of explanation, state who could have been the driver — otherwise they are liable themselves.

How high may the contractual penalty be?

There is no statutory amount. The sum must be reasonable and has to be assessed case by case. We cover this in detail in How high can a private parking penalty be in Germany?

Conclusion

In Germany, the contractual penalty is the central instrument owners and operators use to enforce their conditions of use on private car parks. It is based on a usage contract created by parking on a signposted space, and on the Civil Code rules on contractual penalties and standard terms. Anyone who disregards other people's parking spaces should therefore expect a claim — provided the signage is clear and the amount reasonable.

This article is general information and not legal advice.