Translating German contracts into English

Someone wrote to me recently asking for advice and book recommendations for starting to translate contracts DE>EN. I wrote back to say I would probably blog it, and now I can’t find the email, nor my reply. The reason I wanted to blog it was to save myself typing in future, but it’s a big field and there’s no special advice here.

Procedure:

Understand the original contract. That might mean reading the Civil Code or some other statutes, or getting information from Creifelds Rechtswörterbuch or a book on standard-form contracts with footnotes. I’ve got some here, but they’re out of date so I’m not going to recommend one.

See if it’s from Germany, Austria or Switzerland. Is the translation going to a specific English-speaking country, or will it be read by all and sundry in Germany who understand English?

Make sure it says it is governed by German law, and that the German-language version is binding. Converting a German contract into a contract under English or any other legal system is work for lawyers. Even if you’re insured, you’re probably not insured for practising law without a licence.

You can use one of the standard bilingual law dictionaries, but you can’t trust it. You need monolingual German and English references to decide which alternative, if any, to use.

Translate the contract, conveying the meaning of the German in English appropriate in a written style (neither colloquial and slangy, nor pompous and outmoded). Don’t translate word for word, but keep close to the original.

If you want to use the kind of standard-form phrases (boilerplate) used in English or American contracts, you must know what you’re doing. Often, standard expressions will be phrased differently from the original and you need to be certain they have the same meaning as the German before you use them.I can’t resist quoting Wirtschaftswörterbuch, 2 Bde., Bd.2 :…“>Schäfer’s Wirtschaftswörterbuch, which was cited on a mailing list recently. I wonder what they paid those people to give Schäfer five stars on amazon? It may be OK into German, but into English it’s full of translatorese and not reliable.
The topic is
salvatorische Klausel
separability
severability
saving … clause
(I presume that means separability clause, severability clause or saving clause)

Sollte e-e [sic] dieses Vertrages unwirksam oder undurchführbar sein oder werden, so berührt dies die Wirksamkeit des Vertrags im übrigen nicht. Die Parteien verpflichten sich vielmehr, in einem derartigen Fall eine wirksame oder durchführbare Bestimmung an die Stelle der unwirksamen oder undurchführbaren zu setzen, die dem Geist und Zweck der zu ersetzenden Bestimmung so weit wie möglich entspricht.

Should any individual provision or any part of any provision be or become void, illegal or unenforceable, the validity of the remaining provisions hereof shall in no way be affected. In such case the void and/or illegal and/or unenforceable provision or provisions shall be replaced by relative provisions coming as close as possible to the sense and spirit and purpose of this Agreement.

This deviates in some places: why part of? Why three adjectives (void, illegal or unenforceable; sense and spirit and purpose)?
What does relative provisions mean? and what is it the translation of?
No need for hereof, no need for in such case instead of in this case. And I think he misses the meaning of im übrigen, which can be difficult to render but here just means the rest of the contract.

Here’s what I would probably do:

Should [any provision] of this agreement be or become invalid/ineffective or unenforceable, this shall not affect/this shall be without prejudice to the validity/effectiveness of the remainder of the agreement. Instead, the parties will/shall/agree to replace the invalid or unenforceable provision by a valid or enforceable provision that approaches as closely as possible the spirit and purpose of the provision replaced.

It’s no big deal translating a severability clause. They happen to exist in both German and English law.

Here are notes on some kinds of clauses (but I would never call it a savingS clause, at most a saving clause, because it ‘saves’ the contract). :

Most contracts include a savings clause, which is meant to ensure that the contract remains enforceable even if part of the contract is later held invalid:
If any provision of this Contract is held unenforceable, then such provision will be modified to reflect the parties’ intention. All remaining provisions of this Contract shall remain in full force and effect.
In the absence of a savings clause, it is possible that if a single clause is held invalid, the entire contract will also be rendered invalid.
One basic consideration when translating contracts into English is how to use verbs like shall, will, agree to, undertake to and so on, but that is a topic for another posting.

Now I don’t know any book that will help much with this process of working out for yourself how to translate a particular contract. There are a few books on the market that show German contracts with their English translations, but they are not reliable. You need to know what is safe to use. Recently, in another mailing list, someone asked whether translation memories were available so you could just run a German contract through Trados and translate it. Well, you need to have a good translation to do that. I am sure the big international law firms have databases of translations of their standard contracts. But I don’t know how to get my hands on them, or whether I’d like them if I saw them. However, Googling with the right selection of words will bring up some good translated contracts, I’m sure. But I could never imagine just running a contract through a translation memory program to translate it. This wish, moreover, is usually that of people who don’t understand contracts themselves.

Here are two bilingual contract books on the market.

Franz J. Heidinger / Andrea Hubalek, Anglo-amerikanische Rechtssprache. Praxis-Handbuch für Rechtsanwälte, Wirtschaftsjuristen und Wirtschaftstreuhänder, 3rd ed. 2000, Orac Verlag, Austria, ISBN 3-7007-1855-1
(I only have the second edition)
This has models from Germany, Austria, the USA and the UK. There are some translations, not 100% reliable. There are notes on many types of clauses. The book is divided into a number of sections with no global index, unfortunately. The book has a different title in the USA.

Dieter Stummel, Standardvertragsmuster zum Handels- und Gesellschaftsrecht Deutsch-Englisch

(See also earlier entry). This book sold like hot cakes and there is a second edition, not greatly changed I believe. I wrote a rather nasty review of it in the MDÜ which was reprinted in the Infoblatt of ADÜ-Nord at www.adue-nord.de (Publikationen, Infoblatt, 4/2003, p. 13 – in German).
It consists solely of about 30 German contracts opposite English translations of them. To quote myself:

Ein Beispiel für die Probleme der Übersetzungsvorschläge ist ein Kaufvertrag über eine Immobilie (S. 193). …nachfolgend: das »Grundstück«: hereinafter referred to as the »Real Estate«. Gleich darauf wird aber Grundstück mit Property übersetzt. Dann kommt nachfolgend: die »Immobilie«: hereinafter referred to as the »Property« [näher liegt eigentlich the Building]. Auf S. 196 wird dann wieder Real Estate statt Property geschrieben. Auch unschön ist die Übersetzung von Dienstbarkeiten mit using rights [statt easements oder servitudes; Nutzungsrechte heißt übrigens rights of use, nicht using rights]. Manche der Problemstellen sind zwar gut zu verstehen, z.B. This shall be without prejudice to Seller’s right to raise an evidenced higher default compensation claim [Stellung/ Gebrauch von evidenced nicht idiomatisch]. Aber will eine Kanzlei solche Vorschläge übernehmen?

There’s no doubt these two books could offer ideas, but the translator needs to develop the discrimination to see which don’’t work.

Another rather good resource is an Agency Agreement Subject to German Law (bilingual) published by the German-British Chamber of Industry & Commerce in London. However, it costs £50.

Other good materials here.

You can find books on boilerplate in English, and collections of contracts; you can also find contracts on the Internet.

11 thoughts on “Translating German contracts into English

  1. Margaret,

    Loved your comments about the awful Schäfer dictionary. It’s evidently as bad on law as it is on finance. The first edition was bad enough, and it seems to have deteriorated further with every new edition. I browsed through the latest (7th?) edition of the GE-EN volume a week or so ago, and it reminded me of where so many bad translations come from. Examples:
    Stückaktie, which is a (notional) no-par value share, is (still) translated as “individual share certificate”.
    Streubesitz (free float) is given as something wholly unbelievable to do with portfolio holdings.
    And erfolgswirksam is something like “not affecting net income”.
    I’m sick and tired of customers questioning our translations by citing Schäfer. It should be pulled from the market.

    Of course, not every seriously bad dictionary – not even the egregious Andersen accounting dictionary – is entirely wrong in every case, but that’s no excuse for using it.

    One of the problems with bad dictionaries is that they take on a life of their own, which is why rubbish works like the Schäfer, Routledge/Langenenscheidt etc. business dictionaries sell really well. Schäfer is banned at F&B, and if we catch any freelance using it, we don’t work with them again.

    Robin

  2. Robin, is it any better into German? I used to think I can’t use Schäfer because I really don’t know enough economics, and it’s full of translatorese, but someone who knows their stuff could pick out the pearls from the dross. I do quite well with Zahn, and it puts me on the right track for further research. But the big problem about all these dictionaries is that they are so often used by people who don’t know the subject from a monolingual point of view.

  3. Margaret,
    I have been told that the En-De version is somewhat better, but my German staff translators don’t use it nevertheless. Looking through the De-En version, it struck me (again) that this was a dictionary produced by people who evidently had little or no “real-life” exposure to the demands of high-quality German-English translation; who evidently relied on other (bad/mediocre)dictionaries and really bad translations as sources; and who – as you rightly suspect – had little idea of the subject area from a monolingual perspective, far less in the two languages. Apart from anything else, an academic knowledge of a subject will probably be more of a hindrance than a help, because by the time you’ve (conceivably) become an expert, you’ve narrowed down your field so far that the vocabulary you could contribute will be highly limited.

    Zahn’s now getting decidedly dated, and I’m not aware of any plans for a new version. Like so many dictionaries (e.g. Woywode, Hamblock/Wessels), it can be extremely useful if you already know what you’re talking about, but positively dangerous if you don’t.

    And to emphasize what’s been said before: I’d give a very wide berth to any translator who claims that Schäfer’s a good dictionary!
    Robin

  4. My reference to ‘don’t know the subject from a monolingual point of view’ referred to the users, not the authors! The problem is the belief in the dictionary regardless, not the dictionary itself. I actually don’t intend to run down books in this weblog, but I chose the Schäfer translation because someone quoted it recently in a discussion of salvatorische Klausel and it seemed to me such a good example of a translation gone slightly wrong.

  5. True, but I think it applies as much to the authors of the Schäfer dictionary as to some of its users. Ignorance then gets compounded to produce ridiculous results. If a dictionary is bad, I think there’s a good case for saying so out loud, rather than trying to be diplomatic. Similarly, if a dictionary is good, we should be urging people to buy and use it.
    Robin

  6. Let’s digress away from dictionaries.

    Maybe buried in your ‘boilerplate’ point, Margaret, is the use of glossaries & reference material supplied by clients, non-copyright books of ‘legal precedents’ and ‘fuzzy match’ parallel texts inc. financial press cuttings of co. accounts.

    I’m also sure Robin uses original sources in both Eng. & Ger.

    Time permitting, it usually doesn’t, juxtaposing & trawling through GER/ENG etc. parallel texts that may not always be availaible online by Googling etc. can reap long-term benefits.

    However, there may be a problem of identifying the right precedent and the right equivalent term in the first place.

    My first port of call used to be the infamous ‘celing-high’ Eng. & Wales College of Law ‘core material’ – once available on corresp. courses – for Solicitors’ Finals/ a.k.a. LPC – Legal Practice Course and packed with useful, real-life civil and criminal case-studies from start to finish.

    There are also plenty of inexpensive Eng.-only i.e. accountancy, tax & law study manuals available on the market, unfortunately back in the UK and not often in the rest of the EU.

  7. Adrian: do I sense a touch of irritation at my lack of thoroughness?

    Are you really sure all the materials you mention relate to contracts? I am just referring to contracts.

    It’s definitely better to have a good look in a law bookshop in London, but one can actually phone up Hammicks or Wildy’s, for instance, it isn’t that expensive nowadays, and they will say what students’ materials they have at hand.

    There are two things I didn’t get round to in this entry: one is specific English-language books on boilerplate, and the other is the Google trick when you get a defective German contract. I’ll have to get on to those separately.

    But I find one of the biggest problems in contract translation is lack of respect for the original German. People can start worrying about the nice English legal jargon when they’ve got that right!

    It’s true we digressed into bilingual dictionaries, and those aren’t the best sources. That, as I said, was because the suggested translation of a contract clause in Schäfer struck me as a useful example to show what can go wrong.

    Robin: yes, I believe the Schäfer is less reliable than most. But even the best bilingual dictionary will be, let’s say, 80% reliable.

    I know I said ‘I don’t intend to run down books in a weblog’ (I’m about to run down another), but of course, you’re right, it can’t be completely avoided.

  8. No, I’m not irked. On the contrary, such discussions save me pointless investment in dictionaries like Schäfer. Zahn is useful up to a point. Out-of-print Gunston & Corner is still quoted by good G/E translators as an authority. My copy was so dog-eared, it disintegrated years ago.

    Yes I did stray out of contracts. I’d forget dictionaries and go straight to parallel texts if faced with a banking credit facility, mortgage, debenture, contract of employment, director’s service contract, partnership agreement, purchase deed of unregd. land, Co. Memo & Arts of Assoc etc.

    What about other species that don’t quite fit the contract mould? If an insurance policy as a contract of ins. – I’d reach for my own collection of Eng.-only ins. certificates & policies. If a ‘Sicherungsübereignungsvertrag’, I’d dig out a Bill of Sale by way of Mortgage from London Law Stationers, even though some (unwitting?) German lawyers reject the analogy.

  9. By parallel texts, you mean similar contracts rather than translated contracts, I presume. In principle yes – I find those useful to get some vocabulary from, both terms (names of parties!) and phrases, but I tend to stay fairly close to the German original. For example, you translate out of a number of languages, but I have never encountered a sale of unregistered land, and even if I did I can scarcely imagine an English conveyance (purchase deed of unregistered land) being a good model for translation.

    I have to say I don’t often get useful material from clients. Possibly you work for more English clients than I do.

  10. Yes. You’re right. Most of my agency-client base is back in the Brit. Isles, though the ultimate end-user clients are often picky lawyers in all of the German-speaking countries.

    I also do mean similar orig. Eng. contracts – rather than translated contracts i.e. that translate Konkurrenzschutz or – verbot with the literal protection of competition or no-competition clauses.

    All I’ve ever seen in orig. Eng. contracts of employment/ director’s service contracts is restrictive covenants.

    At least Robert Herbst and der Grosse Eichborn come up with the excellent start of ‘restraint of trade’ for Verbot even if, like a contractual penalty in Eng. law, it’s automatically assumed to be invalid & unenforceable! I wonder what other dictionaries come up with …

    I agree: unregd. land is a rarity, but the Eng. format and wording are not unusual, either in French or Spanish first-stage contracts of sale that are subsequently turned into notarially certified conveyances/land transfers that may be just one para. in the UK.

    An Eng. purchase deed is also quite a good gen. drafting exercise here. Parties -> X seller of the ONE part and Y buyer of the OTHER part. X of the FIRST part, and Y of the SECOND part implies a Z i.e. releasing mortgagee of the THIRD part etc.

  11. Konkurrenzschutz seems to be Austrian. I would not be so concerned about the headers, as long as the clause itself is OK.
    Restraint of competition/prohibition of competition – is what the employer is trying to do. I don’t imagine the German/Austrian or English courts will allow themselves to be influenced by the heading as they might in England with ‘penalty clause’.
    The translation as ‘restrictive covenant’ is a good example of what you can do only if you know the law. I would probably stick closer to the German. I would also avoid ‘covenant’ because to me that is a term in a deed, and I don’t see German contracts as deeds.

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