Term of the day: als Minus enthalten

I was chugging along towards the end of a translation of a decision of the Cologne Oberlandesgericht (Higher Regional Court of Appeal) when I hit on a new word to me: Partikularinsolvenzverfahren (territorial insolvency proceedings). This could be a Word of the Day, I thought to myself. It isn’t a difficult one because it comes straight from an EU regulation. It means insolvency proceedings relating to a specified territory that can be held parallel to the main insolvency proceedings.

But not long afterwards, I was broadsided by something much weirder (to me): als Minus enthalten. Here’s the passage:

bq. Einer Stellungnahme des Senats zu diesem Meinungsstreit bedarf es an dieser Stelle jedoch nicht, da der Schuldner einen Hilfsantrag auf Eröffnung eines isolierten Partikular-insolvenzverfahrens über sein inländisches Vermögen nicht gestellt hat. Er kann auch nicht als in dem Antrag der Schuldnerin als Minus mit enthalten angesehen werden, da wegen der Verschiedenheit beider Verfahrensgegenstände nicht ohne weiteres davon ausgegangen werden kann, dass der Antragsteller die Durchführung eines isolierten Partikularinsolvenzverfahrens anstrebt für den Fall, dass sein Antrag auf Eröffnung eines Gesamtinsolvenzverfahrens zurückgewiesen wird.

(OLG Köln 2 W 82/01, April 23, 2001; bold by me. SchuldnerIN is a mistake in the original, of course: this was a man, a sole trader)

A bit of Googling revealed several examples in legal texts. I concluded it was similar to the situation in English criminal law of a lesser included offence. For example, if you indict someone for murder, they can always be convicted of manslaughter, a lesser included offence, whereas in other cases, two or three possible offences have to be charged separately, because they are not included. I therefore decided to translate it as lesser included petition:

bq. Nor can such a petition be seen as having been included in the petition as a lesser included petition, since the subjects of the two proceedings differ and it cannot therefore be automatically assumed that the petitioner wishes separate territorial insolvency proceedings to be held if his petition for the commencement of main insolvency proceedings is dismissed.

The only source I could think of for more information on this was a student’s book on criminal law, but I haven’t succeeded in tracing it in the index of anything I have on substantive or procedural criminal law. Thank goodness for Internet search engines: they give enough examples to construct a definition from. I like my attempt because it is both legal terminology and comprehensible, but am open to further suggestions.

5 thoughts on “Term of the day: als Minus enthalten

  1. Glad you’ve got this job and not me. I would say: ‘included as an ancillary (relief) application (could be Eng. pleaded as: subsumed in the further alternative)’.

    I abs. agree petitions are otherwise used in Eng. & Wales for insolvency and divorce. But the problem is the Hilfsantrag that comes before the Minus: claim in the (first)alternative or ancillary application rather than the main petition.

    I’m unsure about including in insolvency the lingo of criminal-type lesser offences.

    Does this make sense?

  2. No, I think I’m on the right lines here. He did not file a petition in the alternative (there are various kinds of insolvency petition). He petitioned only for insolvency in Germany with regard to all his assets, most of which were in the mysterious N. (Norway). *Nor* was there a lesser included petition (implied in his petition). I don’t think ‘lesser included’ sounds too criminal, and in any case the term is mainly a criminal-law term in German, I gather. Your mileage may vary, of course.

  3. I see, though am bemused by the lesser included. ‘Nor could a sub-petition/petition of different scope/ be read into his application’ might be a way-out. Sub-petition doesn’t, of course, exist in GB. Neither/nor is my 12 year-old Binz/ Hess Lexikon des Insolvenzrechts any help on this.

  4. It isn’t an insolvency term, but it does seem to be common in civil as well as criminal law. I don’t really understand what you’ve got against ‘lesser included’: it seems clearly comprehensible to me. I understand the ‘Minus’ to mean ‘lesser’. Anyway, I am trying to pursue this further but as far as the current judgment is concerned I think it works.

  5. Postscript: Corinna Schlüter-Ellner, who is a German lawyer and a Spanish-German translator, confirmed my interpretation. She said the term is only used by lawyers but could not pin it down to any specific source. – What seems strange to me is that an expression like this, which sounds idiomatic to me, should be used only by lawyers and not in general texts, but the few results on Google do all seem to be legal texts.

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