Here’s a clause from a German model employment contract I took from the IHK Frankfurt am Main:
§ 8 Verschwiegenheitspflicht
Der Arbeitnehmer verpflichtet sich, während der Dauer des Arbeitsverhältnisses und auch nach dem Ausscheiden, über alle Betriebs- und Geschäftsgeheimnisse Stillschweigen zu bewahren.
A possible translation:
§ 8 Duty of confidentiality
The employee shall during the employment relationship and also after it ends preserve confidentiality with regard to all trade and business secrets.
I hate discussing the ins and outs of contracts. Many other legal translators will disagree with this. Points of contention are: §, shall, employment relationship, trade and business secrets, and generally how ‘native English’ the whole thing sounds (not very, in this case).
But this is just about shall.
How can you translate sich verpflichten?
undertake to – British contracts sometimes, but sometimes unfamiliar to Americans, in my experience
shall – traditional, widely used in translations, sometimes avoided in native-language English contract
will – OK, a promise under contract
must – sometimes recommended over shall as less ambiguous
is to – sometimes recommended as less ambiguous
What I usually do is use shall. I only use it where it indicates something is mandatory. In an ideal world, the subject of the sentence should be clear, as here (the employee shall). It is not such good drafting to use the passive (confidentiality shall be preserved) but we are translators, not drafters, and if the German doesn’t make it clear whose duty is referred to, there’s nothing we can do about it.
There are proponents of plain English who insist on avoiding shall and using must to impose an obligation. They normally address people drafting from scratch in English, rather than translators. Plain English can become a bit of a crusade and it’s often said by lawyers that not everything in the law is susceptible to simplification (they would say that, wouldn’t they, but I tend to agree).
I prefer the middle road which says shall should only be used in a mandatory sense. To quote Doonan and Foster, Drafting, chapter 7:
‘Shall’ should be used only in the imperative sense in a legal document to impose a duty or obligation on the legal subject to whom it refers.
The most detailed criticism of shall I have read is by Bryan Garner in A Dictionary of Modern Legal Usage (I think the second edition has a different title). As I recall, he nailed 16 different uses of shall. In his edition of Black’s Law Dictionary, the 9th edition of which I happen to have on my iPad (and iPod), he gives five senses. The first is:
Has a duty to; more broadly, is required to
– This is the mandatory sense that drafters typically intend and that courts typically uphold.
If you read anything about the court cases where the use of shall has led to problems, you will soon understand the advantages of must. But those cases apply to people writing English. All the contracts I translate are governed by German law and have a clause saying that the German version takes precedence over the English; my translation is for information only. If I were asked to help cobble together a contract to be governed by English law and where the English language took precedence, I would refuse as I would regard this as unlicensed practice of law. So no court is likely to stumble over shall in my translations.
So, why not will, must or is to? I have used must and I like it. Will is fine too, but if mixed with shall it confuses readers who are not native speakers of English or not English-speaking lawyers. I find is to a bit clumsy. I have heard some odd objections to must, for instance some seem to regard it as weaker than shall. It probably comes down to traditional use, and shall is certainly not avoided by most of the translations into English by German native speakers I’ve seen. People are familiar with it, expect to see it, and probably understand it as mandatory.
There is a lot more that could be said on this topic, but that’s enough for now.